Judgment on the Rock

Wild criticism of the European Court over the Gibraltar Three is unjustified, says Trevor Hartley

The announcement that the Government had paid nearly pounds 40,000 to the relatives of the three IRA terrorists killed by the SAS in Gibraltar caused predictable outrage. "Another surrender to Europe", the Daily Mail called it, alongside a feature attacking the European Union and the Court of Justice - neither of which had anything to do with the payment.

Although it paid up, the Government had greeted the judgment by the European Court of Human Rights in September with outrage - "ludicrous", said Michael Heseltine - and threats to withdraw from its jurisdiction. The IRA and the relatives of the dead three were jubilant. They claimed it proved that the Government was guilty of murder, and even said it branded Britain as a "terrorist nation". However, neither reaction can be justified by anyone who looks at what the judgment actually said.

In fact the judgment came quite close to backing the British government line. The basic facts were awkward. In March 1988, three unarmed Irish people, one a woman, were mown down by the SAS in a hail of bullets. One eye-witness claimed that the soldiers had given no warning and then made no attempt to arrest the suspects. Moreover the car that one of them was seen parking contained no explosives.

No wonder the IRA claimed that the three were murdered, and when an attempt to sue the Ministry of Defence in Northern Ireland was blocked as a result of certificates issued by the Government, their relatives lodged an application before the European Commission of Human Rights.

The Government based its argument on intelligence reports that the IRA planned an attack in Gibraltar. The three were identified as members of an IRA active service unit. When one was seen parking a car, it was thought that the attack was imminent. IRA members on active service have been known to shoot their way to freedom when under threat of arrest. When challenged, each of the three had, according to the SAS, made a suspicious movement that could have been an attempt to draw a gun. The only way for the soldiers to protect their own lives and save those of other people was, the Government said, to kill.

Later a car was found in Spain that had been hired by one of the three under an assumed name. It contained Semtex and ammunition, showing that they were on a terrorist mission.

The Human Rights Commission held in favour of the UK by eleven votes to six. The case then went to the court. At this point the Government must have felt fairly confident. The shock and chagrin must have been all the greater, therefore, when judgment went against the UK - and this by the narrowest of majorities. The court held by ten votes to nine that the UK had violated Article 2 of the convention that protects the right to life.

The European Convention on Human Rights was signed in Rome in 1950. Britain accepts the jurisdiction of the European Court of Human Rights and the preliminary filtering body, the European Commission of Human Rights. The Human Rights Convention is the most notable achievement of the Council of Europe, a body that is completely separate from the EU and has a much wider membership. Originally seen as a bulwark against the resurgence of Nazism in Europe, the Human Rights Convention was regarded at the time of its inception as particularly advanced, both because of the detail and precision of its provisions - most declarations on human rights are notorious for their vague generalities - and because of its enforcement mechanism: the commission and the court. The fact that individuals could bring proceedings before these bodies - most international bodies allow only governments to do this - was also seen as praiseworthy.

For many years the United Kingdom has accepted the right of individuals to bring cases against it, but it does so only for five years at a time. It would be open to it to withdraw when the time comes for it to renew its acceptance. In the past it has occasionally made threatening noises when it has not approved of a decision by the court, but so far it has always renewed its acceptance.

Article 2 of the convention prohibits deliberate killing, save in the execution of a sentence of a court for an offence punishable by death. There are, however, three exceptions: self-defence or defence of others from unlawful violence; making an arrest or preventing a person from escaping; and quelling a riot or insurrection. The UK argued that the Gibraltar killings were excused by the first of these.

The court accepted that the SAS soldiers were not guilty of murder or of any unlawful killing. They accepted the Government version that the soldiers honestly - though, as it turned out, wrongly - believed that they had to act as they did to protect their own lives and the lives of others. To this extent the Government was vindicated. Nine of the judges, including the president of the court, held that the UK had not violated the convention at all. The majority, however, held that there was a violation, though not by the SAS soldiers. They ruled that the UK was at fault for allowing the situation to develop in which the soldiers believed that they had no option but to kill the suspects.

The Government admitted that they could have arrested the three suspects when they entered Gibraltar. However, if they had done that they would not have had enough evidence to bring them to trial. The authorities decided to wait, therefore, until they could get the car which they hoped would contain a bomb. The court felt that the authorities should have evaluated their information more carefully: for example, by considering the possibility that the car parked by one of the suspects might have been put there to keep the parking space free for a later car loaded with explosives.

In the end, therefore, the UK was found guilty of not having taken sufficient care to ensure that the lives of IRA personnel were protected. Some might feel that when known terrorists are at work one should not risk innocent lives, even if the risk is slight. The court disagreed. Nevertheless, the court accepted the Government's version of the facts, thus vindicating in large measure the UK. It awarded no compensation to the relatives, just costs, showing that the court accepted that the three were themselves out to kill. It may have been unfortunate that it did not hold fully for the Government, but the wilder criticisms of the court are not justified.

The writer is professor of law at the London School of Economics.