McCann v. UK (1995)…European Court of Human Rights…1
1. Govt. was aware that IRA Members were planning a bombing in Gibraltar
2. Govt. thought that IRA Members were reaching for detonators and were gunned down.
ii. Procedure: (shows exhaustion of local remedies)
1. Representatives of the estates of 3 IRA Members (UK Citizens) sue the UK Govt. under violation of European Human Rights law
2. Suit starts in Gibraltar in UK Natl Court - jury trial à “exhaustion of local remedies”
3. Jury returns verdict of lawful killing
4. McCann representatives appeal to High Ct of Justice in N. Ireland
5. Ct found that Govt actions were justified and case dismissed
6. McCann representatives go to European Human Rights Commission
7. Then, they appeal to European Ct of Human Rights
iii. Held: There was an unlawful killing and breach of European Human Rights Convention Article 2
1. The decision not to stop the 3 IRA Members from entering Gibraltar, even with prior knowledge of their possible motives, was stupid.
2. Failure of the UK Govt to make sufficient allowances for the possibility that their intelligence was incorrect
3. Lethal force was not necessary
v. Intl Law Analysis
1. Source: Based on an intl legal rule made by a treaty --> European Human Rights Convention Article 2
2. Process: Adjudicated by an intl ct --> European Ct of Human Rights
a. Enforced by a regional intl legal system --> European Region
3. Actors: Individuals and UK Govt
4. Efficacy: European Ct of Human Rights was very diligent in analyzing the procedure thus far and applying the treaty to reach its determination
5. Sense of intl law in this case:
a. Transnational --> treaty addressing interactions between individuals from different states or a state with foreign individuals
b. Exhaustion of Local Remedies
i. Don’t want to clog up Intl Law Cts
ii. Give deference to Natl Ct first b/c actions happened on their soil and want to respect their sovereignty and laws first
iii. Natl Ct can better enforce judgments
iv. Is the European Ct of Human Rights like the U.S. Supreme Ct?
1. Yes: Ct of last resort
2. No: European Ct of Human Rights isnt making rulings on domestic law, but interpreting a particular system of European Law
c. The reason the UK Ct came to a different decision than the Intl Ct.:
i. UK's standard = whether the killings by the soldiers were “reasonably justified” in the circumstances
d. Intl Ct's standard = whether the killings by the soldiers were "absolutely necessary" under Article 2.
e. Why does the UK end up paying? Technically they were right b/c these were terrorists with a car bomb:
i. Complying in interest of reciprocity of other states
ii. Reputation costs in the international community
iii. Avoid sanctions
McCann v. United Kingdom:
1. Facts: Family of deceased suspected terrorists (British citizens) are seeking compensation for their wrongful deaths. Cops shot them in Gibralter (Spanish colony) when they thought suspects were planning on detonating a bomb.
a. Domestic Venues: The appellants first lost domestically in two separate stages
i. Police Inquest in Gibralter: Officers were vindicated of any wrong-doing.
ii. Northern Ireland Action: Ct rejected the appeal, saying it had no jurisdiction over decision of Gibralter ct.
iii. Exhaustion of Alternative Remedies: This is a typical requirement before a claim can be brought before an intl tribunal. Shows respect for the sovereignty of the nations. Also serves efficiency purpose.
b. European Human Rights Commission: Appeal to this int’l venue under Article II of European Convention on Human Rights (Treaty).
3. Why an International Case: Being brought before an international ct, which was established by an international treaty.
4. Ruling: Ct finds that UK fell short in the control and organization of the operation. It was a 10-9 decision, and the Euro Ct didn’t even here first-hand testimony or evidence.
5. UK Complies With Judgment: Likely did so to uphold principles of the Convention, as well as to show a willingness to comply w/treaties and institutional judgments.