Why Killing Terrorists Creates Long-Term Due Process Obligations and What Happens When these Debts Become Due

In July 2013 the European Court of Human Rights (ECtHR) found the United Kingdom in violation of its investigative obligations under Article 2 of the European Convention on Human Rights (ECHR). Article 2 requires signatory states to protect the “right to life” of persons within the territory of the state or under the “effective” control of the state.

The Court delivered a significant judgment in the case of McCaughey & Ors v. UK finding excessive investigative delays in the United Kingdom’s coronial system to be in violation of Article 2 of the Convention. McCaughey & Ors involves the deaths of Martin McCaughey and Desmond Grew who were shot and killed by members of the Special Air Service Regiment (SAS a corps of the British Army and a part of the UK’s Special Forces) on the 9th of October 1990.  McCaughey and Grew were active service members of the Irish Republican Army (IRA) at the time of their deaths.  Both were indisputably members of an illegal paramilitary organization, and both were alleged to have been en route to commit a terrorist related offence when intercepted by the SAS.

The finding in McCaughey and Ors follows from an ongoing series of cases brought against the United Kingdom by relatives of deceased members of paramilitary organizations during the course of the conflict in Northern Ireland. From the well-known Gibraltar case in 1987, involving three members of an active service IRA Unit (Mairead Farrell, Sean Savage and Daniel McCann) killed by the SAS while allegedly in the process of preparing an attack on a military installation in Gibraltar, the Court has articulated the view that the planning of each military or police engagement with law breakers (including alleged terrorists) must be capable of engaging the possibility of arrest. In sequence, the Court has also held in a series of cases involving both deceased IRA members and deaths related to the conflict in South-East Turkey that the democratic state has a fundamental obligation to investigate the circumstances in which the state takes the life of persons in its territory or under its effective control.  Cases such as Er. v Turkey (2013) illustrate the general ECtHR approach. Here the individual disappeared after a clash between the PKK members and security forces.  Despite the state’s strong denial of involvement in his death or disappearance, Turkey found little sympathy with the Court: where the absence of a solid and well-executed investigation was taken as the litmus test for the state’s responsibility.

These investigatory requirements include:

  •  Conducting independent investigations capable of leading to meaningful accountability if life was taken unlawfully (Akkum v Turkey, 2006).  In Akkum, death occurred after a military operation where the state claimed the victims were caught in military crossfire between the government soldiers and the PKK.  The Prosecutor’s conclusion at the outset of his investigation that Akkum was a terrorist was found to compromise the effectiveness and integrity of the overall investigation.
  •   Maintaining the integrity and professionalism of the scene of crime investigation and ensuring that the same processes are carried out in state related death as they would be in any other situation of suspicious or sudden death.  As the case of Mezhidov v. Russia (2011) illustrates, the obligation applies even in situations of ongoing hostilities involving non-state actors.  In this context, the deaths occurred in a village coming under fire as the Russian government launched its anti-terror operation in Chechnya in October 1999.  The Court found that the state was obliged, notwithstanding hostilities, to conduct autopsies and to inspect the scene of the incident.  These are in the ECtHR’s view “essential steps.”
  • Requiring the state to communicate meaningfully with the family members of the deceased to enable them to fully understand the investigative processes that have been undertaken (Akhmadov v. Russia 2011). In Akhmadov,  the death of two farmers harvesting their fields occurred as an anti-terrorist army unit fired warning rounds from the air above (helicopter surveillance).   The claims sustained by the Court were based in part on the exclusion of the family from legal and investigative proceedings and the family’s lack of access to official files for over six years.
  •  Ensuring that investigation and legal process is undertaken with due diligence and speed. Sambiyev v Russia (2012), involved the death of an individual believed to be a member of a terrorist group who was abducted and killed by state forces.  The failure to undertake an independent, accessible and prompt was found to violate the right to life obligations of the state.

In the case of McCaughey and Ors the Court found that the Coroner’s Inquest system in Northern Ireland was flawed and failed to fulfill the requirements of right to life protection as mandated by Article 2 jurisprudence.  The Court stated:

…the inquest process itself was not structurally capable throughout the relevant period of time of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition.

 Notwithstanding this observation, the Court concluded that the delays,

cannot be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths, in the sense that the investigative process, however, it be organised under national law, must be commenced promptly and carried out with reasonable expedition. To this extent, the foregoing finding of excessive investigative delay, of itself, entails the conclusion that the investigation was ineffective for the purposes of Article 2 of the Convention.” (at 140).

The concurring judgment of Judge Kalaydjieval emphasized that if the state failed to discharge its obligations to a conduct proper investigation, the Court would direct the state as to what measures would need to be taken:

Looking at what appear to be ample, but missed, opportunities to do so for more than fifteen or even twenty years, I am not convinced that ‘the respondent State remains free to choose the means by which it will discharge its legal obligations’ under Article 2 of the Convention.

And:

In fact the period of demonstrated, if not deliberate, systematic refusals and failures to undertake timely and adequate investigation and to take all necessary steps to investigate arguable allegations under Articles 2 and 3 seem as a matter of principle to make it possible for at least some agents of the State to benefit from virtual impunity as a result of the passage of time.

This series of right to life cases including this latest decision should be of  interest to an American audience.  Self-evidently the ECtHR’s jurisprudence is regionally specific, though increasingly some motifs from the investigative responsibility jurisprudence is creeping into Inter-American cases on the right to life including in the context of  ‘active hostilities’. Nonetheless, even if the scale of the ECHR’s requirements are likely to remain, for now, regionally specific their influence on broader understandings of the nature and form of human rights obligations by states is significant. The importance of this jurisprudence outside Europe is its capacity to shape the expectations about state responsibility in situations of armed conflict, even if debates about the degree of “effective control” by the state remains contested.  These ECtHR cases underscore that a human rights enforcement system remains prepared to invoke a high level of state responsibility even where actual control on the ground is questionable (Turkey) and where the states claim to justification for the use of force by the exigencies of the situation (terrorism) is essentially not accepted.  The essential point is that the judicial scope of human rights protections deemed to apply in situations of active hostilities is widening over time, and the fact of armed conflict or terrorism does not undercut the perceived obligations for the democratic state.  This may, if there is seepage to UN Human Rights Committee and Inter-American jurisprudence simply make it harder for democratic states like the US to use force without corresponding investigation for loss of life (or at least to avoid censure).

The ECtHR lethal force cases from Northern Ireland, show a leading democratic state faced with violent challengers, resorting to the use of lethal force by specialist units of the military now being held to account for the killing of suspected terrorists twenty years on.  The same pattern is evidenced with respect to states (Russia and Turkey) that have long argued the use of force should be contextualized by reference to the situation of terrorism and armed conflict on the territory of the state.  The European Court has rigorously, before and after 9/11, maintained its view that the obligations of the state to transgressors are no less than those owed to the law-abiding citizen. These obligations are increasingly not fixed to requirements of absolute territorial control (Al-Skeini v. United Kingdom 2011) and tighten accountability for state life-taking in multiple contexts.   When the state kills an individual, no matter what the alleged offences of the individual may be, the obligations to investigate the death remain consistent and cumulative.  The Court remains diligent twenty plus years on. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).