The facts of the case
This case scrutinised the legality of the killing of three members of the Provisional IRA (“the suspects”) by British Special Forces in 1988—widely known as the “Gibraltar Shootings” case. The killings occurred during the conduct of an anti-terrorist operation aimed at preventing a terrorist attack during a military parade in Gibraltar. The authorities shot the suspects upon appearance at the location of the suspected attack, where they drove, parked, and exited a car that the authorities believed contained an explosive device. It was subsequently discovered that the suspects were unarmed, had no detonator devices on their persons, and had no explosive device in their car. All soldiers admitted that they shot to kill. An inquest took place into the killings, at which the families of the deceased, the Special Forces soldiers, and the UK Government were represented.
RSI’s intervention in the case
Then British Irish Rights Watch, RSI’s intervention focused on the adequacy of the inquiry carried out after the suspects were killed. RSI’s argued that Article 2(1) of the European Convention on Human Rights (“the Convention”) included a procedural requirement that the state provides an effective procedure for establishing the facts surrounding a killing by state agents, through an independent judicial process to which relatives must have full access. RSI submitted that this had not been met for a number of reasons:
- No independent police investigation took place regarding any aspect of the operation leading to the shootings;
- Normal scene-of-crime procedures were not followed;
- Not all eyewitnesses were traced or interviewed by the police;
- The Coroner sat with a jury which was drawn from a "garrison" town with close ties to the military;
- The Coroner refused to allow the jury to be screened to exclude members who were Crown servants;
- The public interest certificates issued by the relevant Government authorities effectively curtailed an examination of the overall operation.
RSI also submitted that a violation of Article 2 occurred whenever the European Court of Human Rights (“the Court”) finds serious differences between the investigation conducted into a death, and the UN Principles on Extra-Legal Executions.
The judgment in the case
The Court found a violation of Article 2(2) in the lethal shooting of the suspects. In particular, the Court considered that in the planning of the operation, insufficient allowances had been made for ‘alternative possibilities.’ Such possibilities might have been: on the day in question, the suspects were merely on a reconnaissance mission, or that the suspects did not have the requisite technological backgrounds to conduct the attack in the terms expected by the authorities. The rigid approach taken by the authorities to their planning of what would occur rendered it ‘almost unavoidable’ that lethal force would be used. The Court considered it particularly relevant that the authorities had not prevented the suspects from entering Gibraltar in the first place, when it would have been possible to do so, and where the authorities had the requisite intelligence regarding the planned bomb attack at the suspects’ point of entry.
The Court held that the use of lethal force in pursuit of one of the aims of Article 2(2) of the Convention could be justified where it is based on ‘an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.’ For that reason, the actions of the soldiers did not, in and of themselves, give rise to a violation of Article 2(2).
In relation to the arguments advanced by RSI, the Court considered the inquiry actually carried out to be sufficient to discharge the state’s obligation to carry out an investigation where individuals have been killed as a result of the use force by the state. In this case, the applicants were legally represented at the inquest, which involved the questioning of 79 witnesses, and lasted 19 days. As a result, there was no breach of Article 2(1) of the Convention on this basis.
What does this mean for our work?
This case was seminal in shaping right to life protection under Article 2 of the Convention, in particular through requiring procedures to ensure state accountability after the death of an individual carried out by state agents. The case enshrines the principle that the right to life in Article 2(2) includes a procedural obligation on the part of states to investigate killings carried out by agents of the state – a principle that has been further endorsed and expanded on by the Court in subsequent cases.
The case also highlights that national security operations must be carried out in a manner that is compliant with Article 2 at all stages. In particular, the case focuses on how the strategic approach taken by a state party to national security operations can expose suspects to an unacceptable likelihood of death and that liability can attach in the early planning stages of an operation.