A huge smoke-screen of humbug

JONATHAN Aitken, the former Chief Secretary to the Treasury, may not always have spoken or acted wisely in his political life, but we should give him credit where it's due. Several years ago - long before the killings in Gibraltar - he made this, to my mind profound, comment on how terrorism could affect a liberal, lawful state: When the state tried to reconcile effective counter-terrorism with the rule of law, what you got was "a huge smoke-screen of humbug".

The Gibraltar killings on 6 March 1988 were certainly an example of effective counter-terrorism in the strictly military sense. Danny McCann, Mairead Farrell and Sean Savage were terrorists - "volunteers on active service", as the IRA said after they died - and the SAS made sure that they would never terrorise again. Farrell was hit by five bullets, McCann by four, Savage by between 16 and 18.

Nobody who sat through their inquest, as I did, will ever again believe in the idea (which is remarkably persistent) that shooting in the effective counter-terrorism business can be done, as it were, nicely - a few disabling shots aimed at the ankles. But then nobody who has ever witnessed the immediate results of an IRA bomb, as I have not, may have reason to regret this.

The trouble here is the large gulf between, on the one hand, the techniques of counter-terrorism and popular and political support for it ("murderous bastards, they deserve what they got" - I admit to that thought sometimes), and, on the other, how the law says the state should behave. Last week the European Court of Human Rights decided that the British Government had broken the law by using more force than was absolutely necessary in Gibraltar - that is, three people need not have been killed - and by this judgment generated a lot of anger in London. Michael Heseltine, Deputy Prime Minister, found the judgment "incomprehensible"; Downing Street said that it "defied common sense".

And yet it was a mild enough verdict. The judges rejected claims by the relatives of the dead that there had been a premeditated plan to kill them, or that the laws of Britain and Gibraltar were flawed, or that the killers themselves had broken the law, given what they had been told by their supporters. Gibraltar is also history; there is now a truce in Northern Ireland, perhaps permanent; the Government talks to the IRA's political wing; all kinds of horror are being conveniently forgotten. So why all the anger and professed incredulity?

One obvious answer is that governments do not like to be told they have broken the law, especially by foreigners. Another is that they hate to be disbelieved by eminent lawyers, because if the scepticism from Strasbourg became current in United Kingdom courts it would undermine one of Britain's most important legal strategies over 25 years of the Northern Ireland troubles.

The British Government put an enormous effort into constructing a version of events that would reconcile the killings with the law, that would make them legal. It was believed by a majority of the jury at the Gibraltar inquest in 1988 and, later, by another majority at the European Commission on (as opposed to Court of) Human Rights. Last week's verdict implied that 10 out of 19 judges thought it was hokum - Jonathan Aitken's "huge smoke-screen of humbug" - and I think they were right.

THE most important facts about the killings are that the dead were unarmed, did not try to resist arrest, did not have the means to explode a bomb and had not placed a bomb in Gibraltar. They were not, at the time they were shot, either a threat to the men who killed them or to anyone else. To make their killing legal, therefore, looks a formidable proposition. The Government rested its case on the twin defence of "reasonable belief" and "reasonable force".

It had already used both with some success in Northern Ireland. In 1978, for example, an SAS unit shot and killed a 16-year-old Catholic boy, John Boyle, near a secret arms dump close to his home in County Antrim. Boyle was not in the IRA - in fact the Army was keeping watch on the arms dump thanks to information that had come from him via his father - and two SAS men were charged with murder, to be acquitted on the grounds that they thought they had seen Boyle pointing a rifle at them, which according to the judge meant that they could reasonably (however mistakenly) believe that their lives were endangered.

"Reasonable force" had an earlier run before the courts, when, in 1971, Patrick McLoughlin was shot dead with two other unarmed men as he tried to rob a bank in Newry. His widow sued the Ministry of Defence for damages in the Northern Ireland High Court, but the jury was persuaded by an argument that recalled an earlier case, in which an army ambush had shot three men because the officer had mistakenly believed that they were about to plant a bomb. As Lord Justice Gibson (who was later killed by a Republican bomb) remarked at the time, shooting was sometimes the only practicable means of arrest: "In the law you may effect an arrest in the last extreme by shooting him [the suspect] dead ... if you watch Wild West films, the posse go ready to shoot their men if need be ... shooting may be justified as a method of arrest."

The difficulty with these arguments in the Gibraltar case is that McCann, Farrell, and Savage were not killed as the result of some sudden confusion on a dark night at a roadblock in County Armagh, by soldiers who had panicked or mistaken their targets. The security forces had known for months about the IRA's intended attack on Gibraltar. They knew the target (the band of the Royal Anglian Regiment), the place (the square near the Governor's residence), and the most likely time (about 11am on Tuesday 8 March). A trap had been set, codenamed "Operation Flavius" and dozens of SAS men and Special Branch officers had been drafted from the UK. The terrorists' movements and false identities were known: they had been watched in Spain, watched crossing the border, and watched for every pace of their walk round Gibraltar.

So why not arrest them in the usual sense of the word? Because, so the Government argued before the inquest, the security forces believed that Savage's car contained a bomb, specifically a radio-controlled bomb, which could be activated by pressing a button.

Many questions arise. One, if they were so certain Savage's car contained a bomb, why did they allow it into Gibraltar? Two, why were civilians not cleared from the area where the bomb was thought to be until after the three were shot? Three, why did the Government persist, until the afternoon of the next day, with the lie that there was a bomb in Gibraltar when there wasn't? Four, why was the Army so certain - an absolute certainty, according to evidence given at the inquest - that the supposed bomb was radio-controlled?

THE certainty of the men who led Operation Flavius was a key factor at the inquest. In last week's judgment, the European Court criticised them for being so certain - and wrong. Sceptics, myself included, wonder if that certainty was not constructed after the fact - between the killings and the inquest. Without it, the Government does not have a case. With it, the shootings can be defended on grounds of reasonable belief and reasonable force. If it was reasonable to believe that the bomb was radio- controlled and could be exploded at the press of a button in the hands of McCann, Farrell, or Savage (despite the fact that the target was two days away, despite the fact that the bomb, when found in Spain, was equipped with timers), then it was also reasonable to shoot them, and go on shooting them till the danger of any human life, and therefore movement, was expunged.

If you believe, as the inquest jury did, that this was lawful, then you also have to believe, as I tend to, that the three would have been killed in almost any circumstance in which they were inside Gibraltar with a car. The reason for shooting rather than arresting them was that they had all made suspicious movements in the seconds before they were shot. It became clear from the SAS men's evidence that any movement was seen as suspicious.

As Soldier D said of the shooting of Savage: "In our rules of engagement, if we thought the threat was so great... we had no need to give a warning. We knew the fact the bomb was there. We knew he [Savage] could well be carrying the device to detonate the bomb. With him making such violent movements [he was running after hearing the gunfire that killed his companions] ...we didn't even need give him a warning."

In other words, their deaths were inevitable. No doubt there is a difference between premeditated and inevitable - it would certainly be surprising if lawyers could not find one. Far from being incensed, the British Government should perhaps wonder if it was lucky in the judgment of the European Court.

The author was Reporter of the Year in 1989 for a report on the Gibraltar killings, published in 'Granta'