What is the relationship between the right to life and criminal liability, and what should it be, given the significance we rightly attribute both to human life and to human freedom? This article explores the circumstances in which the European Court of Human Rights imposes a positive obligation to criminalise and pursue criminal forms of redress, and concludes that the Court's doctrine carries the potential of both coercive overreach and dilution of the right to life itself. These problems are compounded by opacity in the Court's doctrine. I propose a way forward that takes both the right to life and human freedom seriously.
The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.
What is an 'absolute right'? 12 The wording used by the Court varies, with the oft-repeated statement being that '[t]he Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment' (Ireland v United Kingdom A 25 (1978); 2 EHRR 25 at para 163). The Court also refers to 'the absolute character of Article 3' (Chahal v United Kingdom 1996-V; 23 EHRR 413 at para 96) and to Article 3 as an 'absolute right' (Al-Adsani v United Kingdom 34 EHRR 11 at para 59). 13 The first finding of a breach of Article 3 by the Strasbourg Court was in 1978, in Ireland v United Kingdom, ibid., but see also De Wilde, Ooms and Versyp v Belgium A 12 (1970); 1 EHRR 373 (no breach of Article 3 found for disciplinary punishments) and the European Commission of Human Rights Report in The Greek Case (Denmark, Norway, Sweden and the Netherlands v Greece) (1969) 12 Yearbook 186. 18 See Article 46(2) ECHR. 19 Article 2 of the Treaty on European Union (European Union, Consolidated version of the Treaty on European Union, 13 December 2007, 2008/C 115/01) provides that the European Union (EU) is founded on the values, inter alia, of 'respect for human rights'. Moreover, the EU's accession to the ECHR has been enabled through Article 6(2) of the Treaty on European Union. Lastly, Article 6(3) provides: 'Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. .. shall constitute general principles of the Union's law.'
In a recent article, Steven Greer questions whether the prohibition of torture and cruel, inhuman and degrading treatment is really 'absolute' in international human rights law, and argues that it is not. In this piece, I consider Greer's arguments against the absolute character of the prohibition at law, and find them wanting. In doing so, I clarify what the legal prohibition's absolute character entails, and what it does not, addressing misconceptions, and revisit the distinction between negative and positive obligations in human rights law. In responding to Greer's arguments, conceptual clarifications are offered which carry significant implications in the context of counter-terrorism and human rights law more widely. At the same time, I underline that the absolute character of the prohibition of torture and cruel, inhuman and degrading treatment in human rights law does not close off critical engagement with the issue of individual (criminal) culpability vis-à-vis the prohibition at human rights law, or with the meaning of the terms torture and cruel, inhuman and degrading treatment.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.