I thought that the readers of this blog might be interested in the extracts that follow from the Daily Mail, 20 years ago yesterday (28 Sep 1995). The newspaper was reporting on the famous, and indeed controversial McCann v UK (‘Gibraltar shootings’ case). If I recall correctly, The Sun’s headline was ‘The Euro-Clown Court’. (See also The Independent’s reporting here, this BBC site for historical interest, and click on the picture for the 1988 ITV documentary ‘Death on the Rock’ [which concerns the shootings, not the Strasbourg case]).
In McCann the Court, by 10 votes to 9, found that there had been a breach of Article 2 of the Convention, on the basis that there had been faults with the planning and control of the security (SAS) operation, which led to the death of three IRA members (in 1988), who were, indeed, planning to plant a car bomb in public space in Gibraltar (on all the other allegations of a breach of Art 2, no violation was found). The finding was controversial as nine judges, including some of the most senior judges on the Court at the time, attached a joint dissent expressing their disagreement on the facts, the thrust of their argument being that the Court was judging matters too much with the benefit of hindsight and unrealistically (and, as the criticism of today could have it, losing sight of the subsidiary nature of ECHR protection).
Indeed, in my own personal view the dissenters were correct, and one wonders if, had no violation been found, we would have heard that much about the ruling at the time. As it was, the hostile reaction of UK politicians (and the press) can be seen from the press extracts below.
A key point to make here is that, as a legal precedent the value of McCann was enormous and has stood the test of time 20 years on, despite the questionable application to the facts at the time. In particular, the principle that the right to life includes a duty to investigate killings, especially those at the hands of the authorities, has become a vital and fundamental feature of the Strasbourg case law, applied numerous times since and of immense value to the cause of human rights and the rule of law. Yet the value of the Court’s contribution to the law of human rights was, it seems, lost at the time (at least in the national context) in the midst of anti-Strasbourg reaction.
Perhaps there are some salutary lessons here. Are they for the Court? Are they for politicians and the press? Perhaps both?
What follows comes, firstly, from The Daily Mail (London), 28 Sep 1995, pages 1 and 2, and then from page 8 of the same (a ‘Comment’ or ‘Editorial’ piece).
[Daily Mail, 28 Sep 1995] Britain to defy Terror Verdict
BRITAIN was last night squaring up for an unprecedented showdown with the European Court of Human Rights.
Strasbourg’s judgment that the killing of three IRA terrorists in Gibraltar in 1988 was unjustified left John Major ‘seething’.
Ministers said they would ignore it and were not ruling out the ultimate sanction of a withdrawal from the court’s jurisdiction.
‘Every possible option is being kept open, including walking away,’ said one insider.
Downing Street said the ruling in the so-called Death on the Rock case ‘defied common sense’. Deputy Prime Minister Michael Heseltine branded it ‘ludicrous’ and said the same situation would demand the same action today.
Mr Heseltine will head a group of senior Ministers – including Home Secretary Michael Howard, Foreign Secretary Malcolm Rifkind and Leader of the Commons Tony Newton – who will take a ‘long, cool look’ at the options available. With pressure from the Tory Right for a withdrawal, the team is expected to move quickly.
There are fears that the judgment could open the floodgates to a series of legal challenges over the deaths of terrorists. Sinn Fein spokesman Richard McAuley said: ‘This is only the tip of the iceberg in relation to Britain’s long, dirty war in Ireland. British forces have killed almost 400 people and most of those responsible were never brought to justice.’
Sinn Fein president Gerry Adams called for an international judicial investigation into all ‘disputed killings’ by British forces.
The Strasbourg court found by the narrowest of margins – ten to nine – that Britain breached the Human Rights Convention over the deaths of Daniel McCann, Mairead Farrell and Sean Savage, who were shot at close range by SAS soldiers who believed they were about to detonate Turn to Page 2, Col. 1 to detonate a massive car bomb close to a British Army barracks.
They were subsequently found to be unarmed and a suspect car they were using contained no device. However, a second car found across the border in Spain did contain a Semtex bomb and the IRA admitted the group was on ‘active service’.
Despite this, the court said there was no justification for such use of force and found the Government guilty of breaching an article of the European Convention on Human Rights which guarantees the ‘right to life’.
It ordered Britain to pay the £38,700 legal costs of the IRA team’s families. But it stopped short of ordering compensation because the three had been engaged in terrorist activities.
The ruling flies in the face of an inquest verdict that the killings were lawful. It also overturned the recommendation of the court’s own advisers, the Commission on Human Rights, which decided by 11 votes to six last year that the shootings could be considered legitimate.
Anger in Downing Street was heightened by the fact that among the ten judges who voted against Britain were representatives from countries without a strong judicial tradition, including Estonia, Lithuania, Slovakia and Poland. A Downing Street source said: ‘It was a damned stupid decision that will be rejected by the vast majority of people in this country who believe the IRA hit squad got their just deserts.’
Such open contempt for Strasbourg is unprecedented. Despite frequent provocation from past judgments, Ministers have kept their reservations to themselves
‘This could be the straw that breaks the camel’s back,’ one leading Tory said.
The disbelief at Westminster was shared by politicians, IRA victims and the SAS. A source for the regiment said: ‘Some people seem to have forgotten that Savage, Farrell and McCann were elite members of the IRA. They went to Gibraltar with one intention: to kill as many British soldiers as they could.’ Peace campaigner Colin Parry, whose 12-year-old son Tim died in the Warrington bombing, said: ‘It has been proved beyond all doubt why they were there and if you choose to live by the sword then you die by the sword.’
An extraordinary confrontation between Mr Heseltine and Labour home affairs spokesman Jack Straw blew up in the aftermath of the judgment.
It began with Mr Straw’s assessment that ‘it is incumbent upon the British government to observe both the letter and spirit of this decision today’. Mr Heseltine accused him of ‘giving encouragement to the terrorist mentality’.
Incensed by this accusation, Mr Straw wrote to Mr Heseltine last night describing his remarks as a ‘disgraceful slur’.
He said he would consider legal action if Mr Heseltine did not apologise.
IRA terrorists and the ‘right to life’ – (‘Comment’ in The Daily Mail 28 Sep 1995, page 8)
SAVAGE, McCann and Farrell were not on the Rock to see the apes. They were there to murder and maim. They were IRA killers ‘on active service’. Their target was the military band which paraded through Gibraltar’s thronged main square.
Thankfully, they were forestalled by British intelligence and shot dead by members of the SAS.
Now, eight years on, a continental assortment of academics and jurists, from the safety of their cosy offices in Strasbourg, have presumed to condemn those killings as unlawful.
Judges of the European Court of Human Rights, albeit by a wafer-thin majority of ten to nine, yesterday put a civilised government in the dock and gave terror the benefit of the doubt.
They overturned the considered verdict by jury of the inquest in Gibraltar, which cross-examined eye-witnesses and the SAS men themselves. They even reversed the preliminary ruling of their own human rights commission. Of the SAS men called upon to take life and death decisions to defend innocent men, women and children against IRA atrocities they had this to say: ‘The reflex action of the soldiers lacked the degree of caution in the use of firearms to be expected of law enforcement personnel in a democratic society even when dealing with dangerous terrorist suspects.’
Who are they to judge what chance a soldier dare take with terrorists?
Did they look at film footage of the carnage the IRA can cause? There’s enough of it.
Before passing judgment on Britain, did these Lilliputian figures, puffed up with their own self-importance, make any realistic effort to imagine for themselves in terms of mangled flesh and human grief just what IRA bombers are capable of?
Their ruling is more than deeply offensive, it is positively dangerous. Not only does it mock justice. It could also imperil peace in Northern Ireland.
Gerry Adams has been handed a priceless propaganda gift. ‘Why’, he will ask with ingratiating menace, ‘should members of the IRA be expected to hand over their arms, if the killers of the British army are allowed to keep theirs?’. In America, in the Irish Republic and, yes, in Europe too, there are many politicians who will now feel that the Court of Human Rights has legitimised that pernicious argument.
This can only make John Major’s peacemaking mission more difficult, as he strives to retain the trust of Ulster’s Protestant majority and restore momentum to the negotiations.
Increasingly, ordinary Britons are asking what right faceless, unaccountable, unelected, unrepresentative foreigners – many of whom come from countries with deeply flawed democracies and judicial systems – have to sit in judgment on us.
More than a generation ago, when there was still a Cold War and an Iron Curtain, the European Court of Human Rights was set up with noble ideals to protect all on this Continent from the totalitarian excesses of Communism or resurgent Fascism.
These days, its rulings veer crankily from the tragic to the farcical. giving comfort here to terrorists, drug barons, gipsy squatters and transsexuals.
Why should Britain continue to bow to the superior pretensions of this perverse court?
The case for remaining within its outrageously meddlesome jurisdiction is now more than ever hard to justify.