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: • • • • 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 109