15/12/11

It has been alleged that a shoot-to-kill policy was purposefully enforced by British security forces against IRA terrorist suspects both in Northern Ireland and abroad. As usual, the reality is more complex than it first appears. Such a policy of killing rather than arresting the suspect cannot be considered even as plausible, but it is clear that in particular circumstances, when a terrorist suspect resists lawful arrest and it is absolutely necessary to use force, shooting can lawfully lead to him being killed. It is worthwhile to consider whether the existence of this policy has been acknowledged by the European Court of Human Rights in the cases of (A) McCann and (B) Kelly and McKerr against the United Kingdom.

A. McCANN AND OTHERS AGAINST THE UNITED KINGDOM

The issue of the existence of a shoot-to-kill policy was first raised before the European Court of Human Rights in the case of McCann, Farrell and Savage against the United Kingdom. (ECtHR, Grand Chamber, Judgment McCann and Others v. the United Kingdom, 5 September 1995 (A324)). This case was originated in an application against the UK lodged by the relatives of the two men and one woman, member of the PIRA (Provisional IRA), shot dead in Gibraltar by soldiers of the British Special Air Service (SAS). The applicants alleged that there had been a premeditated plan to kill the deceased. They had no evidence of a direct order given by the Ministry of Defence, but claimed that there was strong circumstantial evidence in support of their thesis. They claimed that a plot to kill could be achieved by other means such as hints and innuendoes, coupled with a choice of military unit, such as the SAS, which was made up of soldiers trained to shoot to kill.

In response, the UK Government argued that there was no plot to kill the three terrorists and that the aim of the operation in Gibraltar was to effect their lawful arrest. It was therefore for this purpose that the assistance of the military was provided.

On 6 March 1988, four soldiers were given orders to arrest Mr McCann, Mrs Farrell and Mr Savage, who were on a mission to plant a car-bomb in Gibraltar that was believed could have been detonated by simply pressing a button on a radio-control device. When the suspects were ordered to surrender, they failed to obey, thus rendering the use of lethal force absolutely necessary in order to prevent them from pressing the button and detonating the car-bomb, believed to be in a white Renault parked in the assembly car-park and which could have killed many innocent civilians. In such circumstances the soldiers had been trained to shoot until the suspect was dead, in order to defend any innocent person from unlawful violence, in compliance with Article 2.2 of the European Convention.

The Court concluded that it did not find it had been established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that the SAS soldiers had been instructed by their superiors to carry out the killing, or that they had decided on their own initiative to kill the suspects irrespective of any justification for the use of lethal force and in disobedience to the arrest instructions they had received. The Court also excluded that the soldiers had been implicitly encouraged by hints and innuendoes to execute the three suspects, since there was no evidence to prove such a claim. The Court finally stated that it “rejects as unsubstantiated the applicants’ allegation that the killing of the three suspects was premeditated or the product of a tacit agreement amongst those involved in the operation”.

B. KELLY AND McKERR AGAINST THE UNITED KINGDOM

Other cases were also brought before the European Court of Human Rights concerning the issue of the ‘shoot-to-kill’ policy, in relation to a nine-man PIRA terrorist unit killed during a security force operation at Loughgall on 8 May 1987 (ECtHR, Third Section, Judgment Kelly and Others v. the United Kingdom, 4 May 2001 (Application no. 30054/96)), as well as in relation to the killing of other PIRA members by the Royal Ulster Constabulary during an arrest operation carried out by the Royal Ulster Constabulary near Lurgan on 11 November 1982 (ECtHR, Third Section, Judgment Mc Kerr and Others v. the United Kingdom, 4 May 2001 (Application no. 28883/95)).

The relatives who introduced the petitions against the United Kingdom maintained that the terrorists involved had been arbitrarily killed as a result of a shoot-to-kill policy rather than arrested. The government in response denied the existence of such a policy. The Court finally stated in both judgments that it is “not prepared to conduct, on the basis largely of statistical information and selective evidence, an analysis of incidents over the past thirty years with a view to establishing whether they disclose a practice by security forces of using disproportionate force. This would go far beyond the scope of the present application.”

Despite these decisions, it has been alleged that the report by Mr Stalker, who had been appointed to investigate the killing of Mr McKerr and others in 1982, could bring evidence of the existence of such policy. Disclosure of this report was deemed to cause serious damage to the public interest and for this reason was not produced at the inquest. The allegations were based on a book written by Mr Stalker, which according to the RUC contained many inaccuracies and distortions and gave a misleading impression, as the European Court stated in its judgment. This report did not establish the existence of such a policy and only fuelled the propaganda against security forces in a vain attempt to discredit them.

CONCLUSION
These judgements have made it clear that the European Court of Human Rights:
- has never accepted that there was an implicit or explicit shoot-to-kill policy put in place by the government of the United Kingdom and/or enforced by its security forces;
- refused to conduct on the basis of largely statistical information an analysis of incidents over a period of thirty years in view of establishing whether they disclose a practice by security forces of using disproportionate force;
- rejected, as unsubstantiated that the terrorists shot in Gilbraltar died as a result of a shoot- to-kill policy;
- stated that there had been no discrimination on behalf of the United Kingdom authorities against the men shot, whether on the grounds of their national origin or their association with a national minority.

It appears that the focus has always been directed and kept on the security forces because in certain circumstances recourse to lethal force was necessary. Little attention has been paid to the fact that security forces were confronted by terrorists, who were beyond a doubt carrying out shoot-to-kill attacks themselves aimed at civilians and members of the security forces, or who were believed with justifiable reasons to have the potential to do so. Indeed, what is alleged against the security forces is what terrorists themselves have been blatantly doing for the past forty years. Considering all the murders committed by the IRA it can be objectively stated that the shoot-to-kill policy is definitely what IRA terrorists have been carrying out in Northern Ireland, not something that United Kingdom security forces can be reproached of doing.