they were aware or ought to have been aware, the right to life may be violated. However, this does not extend to providing protection for an indefinite period nor to prevent every possibility of violence. In the counter-terrorism context, therefore, law-enforcement agencies must make the right risk assessment of the obligation to protect life. Independent scrutiny of loss of life The European Court has ruled that the obligation to ensure that law protects everyone’s life includes a procedural aspect whereby the circumstance of a deprivation of life receives public and independent scrutiny.252 This includes situations where life has been taken as a result of acts of terrorism and also where the state has used lethal force to protect against such acts. Intentional killing must be subject to criminal sanctions, as must unintentional killing that results from the use of force in circumstances that cannot be justified. Where death is caused by reckless or negligent acts, whether this must be subject to criminal sanctions partly depends upon the circumstances of the death. Effective criminal-law provisions must be put in place to deter offences depriving people of their lives. Domestic law should also regulate the permissible use of lethal force by agents of the state. Relevant laws designed to protect life should be practical, effective and be enforced, although there is a degree of discretion on the prosecuting authorities in determining whether to prosecute. However, this degree of discretion should not be abused to nurture a culture of impunity among law-enforcement officers. Therefore: • a decision on the part of the state not to prosecute or to carry out an inadequate investigation will engage the right to life;253 • where an acquittal is based on a defence outside the scope of the accepted justifications of the use of lethal force254 this could amount to a violation of the right to life; • there is a duty on states to punish those agents who kill unlawfully and to compensate the victims of unlawful deprivation of life.255 252 “The Court confines itself to noting […] that a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision (art. 2), read in conjunction with the State’s general duty under Article 1 (art. 2+1) of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State”, ECtHR, McCann and Others v. UK, Case no. 17/1994/464/545, 5 September 1995, para. 161; op. cit., note 249, ECtHR, Yaşa v. Turkey, para. 98; ECtHR, Güleç v. Turkey, Case no. 54/1997/838/1044, 27 July 1998, paras. 77-78; ECtHR, Ergi v. Turkey, Case no. 66/1997/850/1057, 28 July 1998, para. 82; ECtHR, Kaya v. Turkey, Case no. 158/1996/777/978, 19 February 1998, para. 86. 253 “To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation […] In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue”, op. cit., note 248, ECtHR, Öneryildiz v. Turkey, para. 94. Moreover, “there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests”, ECtHR, Hugh Jordan v. UK, Application no. 24746/94, 4 May 2001, para. 109. 254 As spelt out in Article 2(2) ECHR. 255 Op. cit., note 239, HRC, Guerrero v. Colombia, paras. 13-15. 102 Countering Terrorism, Protecting Human Rights