The Alchemy of the Right to Life during the Conduct of Hostilities: A Normative Approach to Operationalizing the ‘Supreme Right’

Abstract

Abstract The prevailing approach to the application of the right to life during the conduct of hostilities holds that the arbitrariness of loss of life in terms of international human rights law (IHRL) is determined by compliance with international humanitarian law (IHL). Through application of the interpretive principle of systemic integration, an alternative ‘normative approach’ is advanced. The normative approach is premised on a contextual consideration of the normative content and underlying values of the right to life rather than on the more mechanical approaches to its interpretation. The outcome reached that is based on this approach has two profound distinctions to that of the prevailing approach: (i) not all loss of life where IHL was not strictly complied with is ipso jure arbitrary and, conversely, (ii) at times, compelling factors necessitate a recalibration of arbitrariness along a spectrum between IHRL and IHL, with the result that loss of life may amount to arbitrary deprivation of life even when IHL is fully complied with. In the context of quintessential military operations, a two-pronged normative test is advanced to determine the circumstances in which non-compliance with IHL will result in arbitrary deprivation of life.