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Death on the Rock and the European Convention on Human Rights

THE landmark decision of McCann & Others v. UK (17/1994/464/545) is the first time that the European Court of Human Rights has decided a case on the most basic human right of all, the right to life. The dramatic facts arose out of an attempted bombing mission in Gibraltar in 1988 by three members of an IRA active service unit. They were shot dead in the street by SAS soldiers who believed that they were armed arid about to detonate a remote control bomb in a vehicle parked in a public place. After the shooting, it was discovered that all these assumptions were erroneous. The Court's finding of a breach of Article 2 of the European Covention on Human Rights infuriated the British Government. The decision, by the narrow margin of ten to nine, was contrary to both the spirit of the 1988 inquest in Gibraltar, where a jury had decided by majority that the killings were lawful, and the opinion of the European Commission. Article 2 states that: "Everyone's right to life shall be protected by law". The Convention establishes a positive obligation upon states to provide in their law for the protection of human life. Yet this right is not absolute. Article 2(2) provides that the taking of life does not violate the Convention "when it results from the use of force which is no more than absolutely necessary" in certain defined circumstances. The Court stressed that Article 2 is a fundamental provision. It enshrines basic democratic values and is one of the few Articles that states can never derogate from even in times of war or public emergency. As a consequence it must be strictly construed and the force used be proportionate to the achievement of the aims set out in the Article. Indeed, the term "absolutely necessary" must be a "stricter and more compelling test of necessity" than the normally applicable