Right to Life in International Law 2

We have established that the right to life, as part of the body of rights, generally referred to as civil and political rights, is born out of the concept of fundamental rights whose object is to protect life, integrity, liberty and the opinions of a person against the overbearing reach of the state.

At its basic level, the right to life has two dimensions.

The first is the prohibition of force that could be fatal by a state or a state organ.

The other is the duty of the state to provide adequate protection from threats to life.

The ambit of the prohibition of lethal force is wide and encompasses the deliberate killing of individuals or groups, targeted extra-judicial killings, torturing to death in police custody, enforced disappearances that result in death, wholesale massacres of a group of people and ultimately, genocide.

Genocide, which is an infringement of the right to life in international human rights law, has been in vogue in recent weeks with the filing of the case against Israel by South Africa via the genocide convention at the International Court of Justice ( ICJ).

The ICJ, also known as the World Court, was set up by the United Nations (UN) as the highest court primarily to mediate between states and to settle conflicts between states.

The ICJ is different from the International Criminal Court (ICC), another UN court, with the mandate to try individuals who commit serious crimes against humanity.

Following the invasion of Israel by Hamas on October 7, 2023, Israel hit back mercilessly with the death toll of the Palestinians reaching over 25,000 and rising.

South Africa filed the case at the ICJ on December 29, 2023, alleging that Israel’s military campaign in Gaza amounted to genocide.

Before the hearing of the substantive case, South Africa requested an interim measure in the form of a ceasefire.

The ICJ, with Judge Donaghue, delivering the ruling on the interim measures sought by South Africa, granted the application for provisional measures against Israel and ordered them to ensure its forces did not commit acts of genocide in Gaza but fell short of requiring a ceasefire.

Even though the court’s ruling is final and cannot be appealed, it lacks the power of enforcement.

Whilst the lack of enforcement mechanism is a notable weakness of the power of the court, the use of UN resolutions by the Security Council to enforce judgments of the court is notable, albeit not ideal. Peer pressure and pressure from allies can also serve to coerce Israel into implementing the decision.

Locally

Locally, the recent death in police custody of human rights activist, Kaka, which culminated in the setting up of a presidential commission to investigate the circumstances surrounding the death, is an example of the state’s duty to protect life as exemplified in the recommendation by the committee for compensation to be paid to the members of the deceased family.

Even though, as alluded to earlier, the original dimensions of the right to life were limited to a positive obligation on states to protect life, as well as a prohibition on arbitrary killings, there is a growing trend within the international human rights system to expand the boundaries of the right to life by attributing wider connotations to the meaning of the right.

Almost all the international treaties and constitutions, the 1992 Constitution inclusive, permitted the use of the death penalty as a sentence of a court of competent jurisdictions as an acceptable derogation of the right to life.

However, in a landmark decision on June 6, 1995, the South African constitutional court, in the case of State v Makwanyane ruled that capital punishment was inconsistent with the commitment to human rights in the South African Constitution.

The court held that the right to life and, by implication, the right to human dignity, were the most important of the human rights as it is the source of all other rights guaranteed by the constitution.

Having committed to a society premised on the recognition and realisation of human rights, the court said the state was required to value the right to life and dignity and to demonstrate the value of life in every endeavour of the state, which included the punishment of criminals.

Thus, the court, via a stroke, struck down the prevailing law in South Africa at the time and made the death penalty Illegal.

In the next article, we will look at ways that the right to life can be deployed in Ghanaian jurisprudence to achieve a dignified existence.

The writer is a lawyer.

E-mail: georgebshaw1@gmail.com