Considerations prior to the use of lethal force
The use of force must be a strictly proportionate response. Merely asserting prevention of
terrorism will not necessarily be sufficient to justify the use of fatal force. For example, in
McCann, a case involving the shooting of three members of the IRA in Gibraltar who at the
time were unarmed but were genuinely suspected of being about to detonate a bomb, the
European Court of Human Rights held that where deliberate lethal force is used the most
careful scrutiny must be applied. This is in relation not only to the actions of the agents of the
state who actually administer the force, but equally important are the planning and control
of the actions under examination. Therefore, in McCann, while those who shot the terrorists
were not considered to have violated their right to life, those who had planned the operation
did violate it. This is because at the point at which lethal force was used the security services
were genuinely of the belief that they had no option but to rely upon it. However, the operation was planned in a way that violated the right to life because there had been numerous
opportunities to arrest that had not been acted upon.
When planning security operations, which may or do result in the use of lethal force, the following should be taken into account:
•
•
•
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the right to life of the general population and also of the suspects;
precautions to avoid or minimize incidental loss of civilian life;
the training given to those involved; and
the calculations of risk made.
Violations of the right to life have been found when the civilian population has been exposed
to cross-fire between the security forces and a paramilitary organization, where insufficient
precautions had been taken to protect lives.282 Conversely, the fact that a rescue operation
fails, resulting in deaths, will not violate the right to life if it has been planned in a manner
that sufficiently sought to minimize any risk to life.283
The United Nations Committee on the Rights of the Child has reinforced this message in the
context of the protection of children caught in cross-fire. The Committee has pointed out
that it “is seriously concerned about the impact of terrorism on the rights of children in the
State party, as well as the impact of military action on the rights of children.”284
The right to life and armed conflict
Even in situations that could be categorized as an armed conflict, the right to life remains
relevant. Therefore, where civilians have been killed by armed forces seeking to suppress
an armed insurrection, failure to investigate properly the loss of life may violate the right
to life. The simple assertion that the loss of life was a legitimate consequence of fighting is
insufficient. The fact that a criminal file has been opened and an investigation is commenced
but then closed will not necessarily, in and of itself, satisfy the procedural requirements of
the right to life. The following principles can be identified, which are directly relevant to the
response to terrorism:
282 Op. cit., note 252, ECtHR, Ergi v. Turkey, paras. 80-82.
283 Op. cit., note 270, ECtHR, Andronicou and Constantinou v. Cyprus, paras. 181-186.
284 CRC, Concluding observations: Israel, doc. CRC/C/15/Add.195, 9 October 2002, para. 58.
Countering Terrorism, Protecting Human Rights
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