Life, Liberty, and Lethal Force: The Right to Life under Article 2 of the European Convention on Human Rights in Times of Riot and Insurrection

The European Convention on Human Rights is a leading document in human rights law for both its signatories and the wider international community, and central to the charter is Article 2, the right to life. Yet, despite Article 2 being recognised as a basic value of democratic societies (Italy Grand Chamber § 174), it is not an absolute right. As a limited right, the Convention provides that a deprivation of life may be justified when it "results from the use of force which is more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection” (ECHR 6).

With 101 countries in 2022 seeing a rise in civil unrest (Soltvedt), subsection (c) is an increasingly important provision. The violent and unpredictable nature of civil unrest makes preventing and assessing violations of the right to life deeply challenging. In this context, this essay synthesises the case law of the Strasbourg court to clarify how the ECHR defines an “absolutely necessary” (ECHR 6) deprivation of life amid riot or insurrection.

McCann and Others v. The United Kingdom represents the key precedent for understanding Article 2. The court found in the right two central obligations: a duty to transparently investigate state killings and a positive duty to “limit the circumstances in which a person may be deprived of his life by agents of the state” (ECHR § 151). The court further ruled that the convention’s use of “absolutely necessary” indicated a stricter test than the concept of proportionality in articles 8 and 10, with the force used needing to be strictly proportionate (ECHR § 149).

To understand how this standard is applied in riots and insurrections, Gulec v Turkey is an exemplary case. In 1991, a series of spontaneous demonstrations and attacks on public buildings led to a police response in the Şırnak Province of Turkey, resulting in two people, including a 15 year old boy, being killed (ECHR § 7-12). The court held that the boy’s death constituted a violation of Article 2, and in evaluating the use of force two key factors can be identified.

First, we have the danger posed to the police force. While the court recognised a riot had taken place within Article 2(c), the gendarmes’ minor injuries and the absence of evidence for the presence of armed terrorists meant that “the use of a combat weapon [...] could not be regarded as proportionate” (ECHR § 68). The second key factor lay in the equipment of the police force. The gendarmes did not use non-lethal means (such as tear gas or rubber bullets) to disperse the crowd, citing their lack of equipment as a justification for using lethal force. The court held that it was “unacceptable” (ECHR § 71) for the province to lack such equipment, given that it was already in a state of emergency where disorder could be expected. Thus “strict necessity” has a wider application than the immediate riot, allowing poor preparation for unrest to be the basis of state liability.

A similar focus on protocol was provided in Kukhalashvili and Others v. Georgia, where an anti-riot operation in a prison led to many deaths. Again, the court found that while lethal force was necessary due to imminent danger to the prison guards, the lack of non-lethal alternatives was unconscionable. The court went further, however, holding that despite the authorities being aware of criminal bosses’ plans to instigate disobedience, there were no clear instructions on the intensity of force to be used nor a clear chain of command (ECHR § 153). The finding indicates that when unrest becomes foreseeable, clear protocols for the use of lethal force are vital to avoid Article 2 violations.

In contrast to these cases, Giuliani and Gaggio v. Italy provides a positive example of an “absolutely necessary” use of force, as the court held that the fatal shooting of a G8 summit demonstrator did not violate Article 2. Notably, this case offers three salient criteria.

First, it establishes fear for one’s own life as a justification for killings by state agents. While danger to the police was present in the two previous cases, the court held in Giuliani that the officer, attacked while “simply attempting to leave the scene” (Italy Grand Chamber § 187), had a legitimate fear for his own life. The degree of danger activated subsection (a) of Article 2, as the force became absolutely necessary “in defence of any person from unlawful violence” (ECHR 6).

Secondly, the security force had exhausted other alternatives in trying to quell and control the crowd. While the police force in Gulec had attempted to rely on the absence of non-lethal alternatives, the exhaustion of alternatives in Giuliani came from the fact that the police had already unsuccessfully used non-lethal means (Italy Grand Chamber § 216), rather than a lack of provision. This allowed the Italian police to successfully argue the use of lethal force was absolutely necessary.

Finally, in stating that it was not a violation for the officer in question to have only been serving for ten months, the judgement provided that a lower standard of training will be expected in the event of a disturbance that “could not have been predicted” (Italy Grand Chamber § 255). Placed alongside Georgia, this indicates that while training and protocol will always be a factor in the court’s decision, foreseeable disturbances will attract a higher standard than unpredictable, spontaneous violence.

In bringing together these previously discrete cases, this analysis highlights that adequate training and the availability of non-lethal means are necessary to avoid violations of Article 2. With regard to the riots themselves, this paper further finds that violations are less likely in more violent and unpredictable incidents. Together, these findings demonstrate that it is only through careful preparation and scrutiny of past law that the right to life can be truly upheld.

Bibliography

European Convention on Human Rights. European Convention on Human Rights - European Court of Human Rights, 1950, www.echr.coe.int/documents/d/echr/Convention_ENG.

European Convention on Human Rights. Guide on Article 2 - Right to Life - European Court of Human Rights, 31 Aug. 2022, www.echr.coe.int/documents/d/echr/Guide_Art_2_ENG.

European Court of Human Rights. Gülec v Turkey. 21593/93. 1998.

European Court of Human Rights. Giuliani and Gaggio v. Italy. 23458/02. 2011.

European Court of Human Rights. Kukhalashvili and Others v. Georgia. 8938/07. 2020.

European Court of Human Rights. McCann and Others v The United Kingdom. 18984/91. 1995

European Convention on Human Rights. Art. 2. Council of Europe, 1950.

Italy Grand Chamber. Giuliani and Gaggio v. Italy. 2011.

Soltvedt. “101 Countries Witness Rise in Civil Unrest in Last Quarter, Worst Yet to Come as Socioeconomic Pressures Build.” Verisk Maplecroft, 1 Sept. 2022, www.maplecroft.com/insights/analysis/101-countries-witness-rise-in-civil-unrest-in-la