Part A: Articles: Denouement of the Deaths on the Rock: the Right to Life of Terrorists

Publication Date01 March 1996
AuthorSarah Joseph
DOI10.1177/092405199601400102
Date01 March 1996
SubjectArticle
Part A: Articles
Denouement
of
the Deaths on the Rock: the Right to Life
of
Terrorists
Sarah Joseph'
Abstract
This paper analyses the controversial judgment by the European Court
of
Human Rights
in McCann and Others vs. UK. The case concerned the infamous 1988 shootings by British
counterterrorist forces
of
three members
of
the Irish Republican Army in Gibraltar.
MCCann was the first case in which the European Court considered allegations
of
violations
of
Article 2
of
the European Convention, which guarantees the right to life. A
narrow majority
of
the Court, in a judgment which outraged
the.,LJK
Government, found
the UK had breached Article 2. This paper appraises the various components
of
the
McCann judgment, including discussion
of
previous relevant Article 2jurisprudence and
analysis
of
McCann's
ramifications regarding the use
of
potentially lethal force by law
enforcers in Europe.
IntrOduction
On 27 September 1995, the European Court
of
Human Rights (the Court) delivered its
judgment in McCann and Others vs. UK.IThis is the Court's first judgment regarding
Article 2
of
the European Convention
of
Human Rights (ECHR), which guarantees the
right to life.
The case concerned the killings
of
Daniel McCann, Maireed Farrell and Sean Savage
by soldiers in the Special Air Services (SAS) in Gibraltar in March 1988. The three
deceased were members
of
an active service unit
of
the Irish Republican Army (IRA),
who were allegedly in Gibraltar on a bombing mission. British intelligence had known,
since late 1987,
of
aplanned IRA 'spectacular', in the form
of
abombing attack on a
military target in the British colony
of
Gibraltar. UK authorities planned acounter-terrorist
arrest operation, Operation Flavius, to apprehend the intended bombers. Operation Flavius
culminated in the deaths
of
the three IRA 'volunteers'.
The soldiers were cleared
of
unlawful killing by a subsequent coronial inquiry in
Gibraltar. Civil claims for compensation by representatives
of
the deceased were struck
out in local UK courts. Some
of
these representatives (the applicants) then took their case
to the European Commission (the Commission)
of
Human Rights, complaining
of
abreach
of
the right to life. The Commission found in favour
of
the UK Government byamajority
of
eleven to six. For the first time however, the Commission referred an Article 2 case to
the Court? The Court, by a majority
of
ten to nine, found the UK to be in violation
of
Lecturer in Law, Monash University. I would like to thank Professor Enid Campbell, Melissa Castan and
Jacqueline Lipton for their helpful suggestions during the editing
of
this paper.
McCann and Others vs. UK, Series A, no. 324, judgment of 27 September 1995 [hereafter McCann].
The European Commission is a quasi-judicial body established under Section II, ECHR. All individual and
interstate petitions are heard, at first instance, by the Commission.
Netherlands Quarterly
of
Human Rights, Vol. 14/1,5-22,1996.
©The Netherlands Institute
of
Human Rights (SIMi. Printed in the Netherlands.
5
NQHR
111996
Article 2, in that there was a lack of appropriate care to protect the right to life
of
McCann, Farrell, and Savage in the planning and control
of
Operation Flavius.
The judgment sparked a furore in the UK. Prime Minister John Major was reportedly
'livid';' Deputy Prime Minister Michael Heseltine called the judgment 'incomprehensible'
and 'ludicrous':" Ulster Unionist security spokesman Ken Maginnis condemned the
Convention as a 'terrorist's charter'.' Not only have the UK Government intimated that
they will not abide by the Court's order;" the Government, egged on by Conservative
party 'Eurosceptics'," has raised the possibility
of
withdrawing UK recognition
of
the
Court's jurisdiction. Most worryingly, concern has been raised over the impact the
'politically inopportune' judgment may have on the fragile Northern Ireland peace
process."
This article examines the merits and implications
of
this most controversial judgment.
I Article 2 ECHR
Article 2 ECHR states:
I.
Everyone's
life shall be protected by Jaw. No one shall be deprived
of
his life
intentionally save in the execution
of
asentence
of
acourt following his conviction for
a
crime
for which this penalty is provided by law.
2. Deprivation
of
life shall not be regarded as inflicted in contravention
of
this Article
when
it results from the use
of
force which is no more than absolutely necessary:
(a) in defence
of
any person from unlawful violence;
(b) in order to effect alawful arrest or to prevent the escape
of
aperson lawfully detained;
(c) in action lawfully taken for the purpose
of
quelling a riot or insurrection.
Article 2( 1) provides the right to life. The first sentence, guaranteeing protection
of
everyone's life by law, prescribes a positive obligation on States to make adequate
provision in their law for protection
of
human life.9The second sentence guarantees a
negative right; no one shall be intentionally deprived
of
their life. Article 2(1) lists only
one exception: capital punishment. Article 2(2) lists more exceptions: persons may be
legitimately killed if 'absolutely necessary' for one
of
the three reasons, all relating to law
enforcement. The Commission has stated that these express exceptions are the only
permissible exceptions to Article 2. Furthermore, they must be interpreted narrowly."
A. Marr, 'Now is the time to say sorry', Independent, 28 September 1995, p. 21.
Guardian, 28 September 1995, p. 16.
Press Association Newsfile, 27 September 1995.
'We shall do nothing at all', Heseltine in a BBC Iradio interview, 27 September 1995, quoted in: Irish
Times, 28 September 1995, p. 9.
Press Association Newsfile, 27 September 1995, quoting rightwing Conservative backbenchers Norman
Lamont and John Redwood; R. Gordon QC, 'Gibraltar Implications', The Lawyer, 10October 1995, p. 12.
See, e.g., J. Keegan, 'A Dangerous Judgment', The Daily Telegraph, 28 September 1995, p. 19.
See, for discussion of this positive right, D. Harris, 'The Right to Life under the European Convention on
HUman
Rights', IMaastricht Journal
of
European and Comparative Law, 1994, p. 122',at pp. 122-128.
10 Stewart vs. UK (No. 10044182),39 D&R 162, 1984, p. 169.
6

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