New light shed on the Gibraltar Shootings?
Published last week, Cambridge Historian Professor Christopher Andrew’s new book, The Defence of the Realm: The Authorized History of MI5, builds upon a volume of research upon the security services stretching back to his 1985 study, Secret Service: The Making of the British Intelligence Community, and beyond. What makes his latest work even more significant is its unique status as the only ever authorised history of the organisation.
Amid the mass of information covering 100 years of MI5’s history that is contained in the 851 pages which make up the body of this book, the media have picked up on Andrew’s extended analysis (including surveillance pictures, left) of the security service’s perspective upon the notorious killing by the SAS of three Provisional IRA members involved in preparations to plant a bomb near the Governor’s Residence in Gibraltar on 6th March 1988 (739-746).
After a confused response in the immediate aftermath of the shootings, the then Foreign Secretary Sir Geoffrey Howe provided the official version of events to Parliament the following afternoon:
‘About 3.30 pm, all three left the scene and started to walk back towards the border. On their way towards the border, they were challenged by the security forces. When challenged, they made movements which led the military personnel operating in support of the Gibraltar police to conclude that their own lives and the lives of others were under threat. In the light of this response, they were shot. Those killed were subsequently found not to have been carrying arms. The parked Renault car was subsequently dealt with by a military bomb disposal team. It has now been established that it did not contain an explosive device.’ (HC Deb 07 March 1988 vol. 129 col. 21)
That the three IRA members were unarmed and their bomb remained in a car found over thirty miles away at Marbella on the Spanish mainland has long raised questions as to whether the SAS personnel involved in the Gibraltar killings (Operation Flavius) were following an official “shoot-to-kill” policy. Such suspicions were given credence in the aftermath of the shootings by BAFTA Award winning Thames Television documentary Death on the Rock.
Andrew takes great exception to this documentary in his book, devoting a page to cataloging its factual errors and perceived sensationalism (744-745). This debunking of some of the material contained in Death on the Rock is accompanied by a flat rejection of claims that the decision to kill the PIRA members was premeditated (743). But, to a certain extent, this discussion set up a paper tiger and highlights Andrew’s refusal to engage with a much more important debate. The existence of a shoot-to-kill policy, within and outside Northern Ireland, was examined by Mark Urban’s book Big Boys’ Rules (London, 1992). In this study he concluded that there was official acquiescence to (as opposed to direct support for) a series of extra-judicial killings:
‘The 1980s saw the emergence of a pattern of aggressive special forces operations with the acquiescence of politicians and senior officers, who knew little of the operational detail … This did not involve the killing of any and every IRA volunteer who could be found, as republican propagandists try to imply. Rather, it meant that those in possession of unusually specific intelligence about a forthcoming terrorist attack provided that knowledge … to the SAS. … it was understood that these soldiers would then take the opportunity to play big boys’ games by big boys’ rules.’ (247)
A militarised approach to counter-terrorism was always of dubious legality within the United Kingdom, where resort to force by the police and military had historically been extended little beyond the ability to act in self defence enjoyed by all individuals (see A. Dicey, Introduction to the Study of the Law of the Constitution, (1915, 8th Ed., London), 407).
But, effectively with a blind eye from prosecuting authorities, the use of lethal force continued throughout the late 1970s and 1980s, from Roy Mason’s tenure as Secretary of State for Northern Ireland onwards. As Lowry noted at the time, the British Army’s standard text on counter-insurgency of this era (F. Kitson, Low Intensity Operations: Subversion, Insurgency, Peacekeeping (1971, London)) approached, ‘law and the legal system merely as weapons in the armoury of the government, and view[ed] the legal system and its officers in a highly manipulative light’. (D. Lowry, ‘Terrorism and Human Rights: Counter-Insurgency and Necessity at Common Law’ (1977-78) 53 Notre Dame Lawyer 49, 76).
In the mid-1980s the pollution of the criminal justice process by such concerns was dramatically evidenced by the refusal of the authorities to prosecute members of RUC implicated by Colin Sampson’s (then Chief Constable of West Yorkshire) investigation into a series of killings in Armagh in late 1982 on the basis of public interest concerns relating to “national security” (see T. Coogan, The Troubles (London, 1995), 260 and In re McKerr (2004) UKHL 12, ).
Andrew mentions this inquiry, but only to support his rejection of any officially sanctioned “shoot-to-kill” policy (739). This was the state of the legal system when the parents of the three terrorists shot dead on Gibraltar commenced their legal action, complaining that the killings had violated Article 2 ECHR’s protection of the Right to Life (McCann v United Kingdom (1996) 21 EHRR 97). The European Court of Human Right’s ruling, by a majority of 10-9, that the United Kingdom had indeed violated Article 2, therefore marked a pivotal shift in relations (for want of a better word) between the courts and the executive in the context of Northern Irish terrorism.
The Court ruled that whilst the shots fired by the SAS personnel were fired in the honest belief that the victims were about to detonate remote controlled devices, the killings had not been ‘strictly proportionate’ to the objective of preventing the explosions as the intelligence assessments of the bomb’s whereabouts were inaccurate (at -):
‘In the absence of sufficient allowances being made for alternative possibilities, and the definite reporting of the existence of a car bomb which, according to the assessments that had been made, could be detonated at the press of a button, a series of working hypotheses were conveyed to Soldiers A, B, C and D as certainties, thereby making the use of lethal force almost unavoidable. However, the failure to make provision for a margin of error must also be considered in combination with the training of the soldiers to continue shooting once they opened fire until the suspect was dead. As noted by the Coroner in his summing up to the jury at the Inquest, all four soldiers shot to kill the suspects.’
Despite this assertion that the four soldiers involved did shoot to kill the PIRA members, the Court unanimously accepted, in line with Professor Andrew’s assessment (739, repeated 743), that there was no evidence that the shootings were the culmination of a premeditated plan to kill, rather than arrest, suspected PIRA terrorists (at -).
In that regard, Andrew’s study of these events takes readers no further than the European Court’s decision. Moreover, in common with many official histories, he may be accused of refusing to “bite the hand that feeds”. He makes no effort to engage with the Court’s criticisms of the intelligence information provided to SAS soldiers prior to their fatal confrontation with the PIRA Active Service Unit and he shrugs off suggestions that the British or Spanish authorities could have intervened in the plot at an earlier stage, by repeating the Security Service’s belief that only minor charges would result (741).
The absence of any reference to the European Court decision is remarkable especially given his concern that the events provided a media victory for the PIRA (744). In fact, the only European Court decision to receive extensive coverage (752-768) in terms of its impact upon the Security Service is Spycatcher (The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153).
Nonetheless, a case can be made for McCann as having a more profound influence upon security policy. The Court’s decision in McCann forced the United Kingdom to fundamentally reconsider the courts’ ability to constrain the response of armed police or military personnel to terrorism, returning the focus to their need to act in accordance with the bounds permitted under the concept of self defence in criminal law (see s.3(1) Criminal Law Act 1967 and s.76 Criminal Justice and Immigration Act 2008). These provisions allow an individual to use such force as is a proportionate response to the threat she honestly believes to be posed by another.
These restrictions on the use of lethal force, however, continue to permit its application in circumstances where armed personnel honestly believe that an individual is a suicide bomber posing an imminent danger to others nearby. Under Operation Kratos, rules of engagement which came to light after the suicide bombings of 7 July 2005, senior officers in the Metropolitan Police are able to issue instructions to officers directing them to shoot suspected suicide bombers in the head, as this was considered to be the only effective means of incapacitating them.
The febrile atmosphere of July 2005 tragically led up to the shooting of Jean Charles de Menezes, wrongly suspected of being a suicide bomber, at Stockwell Underground Station. The Inquest into the shooting emphasised the significance of self defence standards, with the coroner, Sir Michael Wright, instructing the jury (at 25-26) that:
‘You should return a verdict of lawful killing if you are satisfied of two matters on the balance of probabilities: (a) that at the time they fired, [police officers] honestly believed that Mr de Menezes represented an imminent mortal danger to them and/or others around them; and (b) that they used no more force than was reasonably necessary in the circumstances as they honestly believed them to be.’
Whilst the jury returned an open verdict, indicating that they were not satisfied that either or both of these conditions for the defence of self defence were met, their role was not to consider the matter according to criminal law standards of proof. This shooting does emphasise the latitude extended to state security personnel under Article 2(2) ECHR, despite the successful corporate prosecution of the Metropolitan Police for violating the Health and Safety at Work etc. Act 1974.
In the wake of McCann the European Court has continued to impose requirements of strict proportionality upon the use of force in counter-terrorism operations (See Ergi v Turkey (2001) 32 EHRR 388 and Isayeva v Russia (2005) 41 EHRR 847). Even more significant has been influence of McCann over decisions such as the Israeli Supreme Court’s limitation of Israel’s targeted assassination policy in The Public Committee against Torture in Israel (2006) HCJ 769/02, which approved the European Court’s proposition (at ) that:
‘[T]he use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk’.
Whilst the immediate “pay-off” of such a targeted assassination strategy explains its continued attractiveness for policy makers, the difficulty of clearly identifying terrorist suspects, the likelihood of collateral damage involved in such attacks and the radicalising impact should such collateral damage occur, all provide powerful policy reasons militating against the adoption of this strategy (See T. Parker, ‘Fighting an Antaean Enemy: How Democratic States Unintentionally Sustain the Terrorist Movements They Oppose’, (2007) 19 Terrorism & Political Violence 155, 166).
Should policy makers in states under the European Convention disregard these considerations, and seek to either openly approve or tacitly condone extra-judicial killings by state agents, Article 2 stands as the surest safeguard that military action will not supersede the criminal law as the state’s primary means of responding to terrorism.