The United Kingdom and Human Rights - College of Social ...

142 Values and Civil and Political Liberties
terrorist? Is it feasible for a soldier in practice to use only
that degree of force which is no more than is "absolutely
necessary" if there has been no derogation, and force
which is "strictly required" if there is a derogation? Has
a soldier the capacity to shoot at terrorist targets in a
self-defensive way so as to disable any terrorist without
killing him and so as to arrest him, while at the same
time being reasonably sure that the terrorist, as he lies
wounded, is no longer able to shoot at and kill the
soldier? Once it is clear that a terrorist is armed, is it
necessary that there be a prior clear warning and call
upon the suspect to halt? Having due regard to all the
relevant circumstances, when judging whether the use of
force is strictly proportionate, is always an extremely
difficult exercise in assessment. The kind of criminal
activity and the dangers to life and limb inherent in the
situation, with risk being balanced against risk, harm
against harm, have to be considered in the brief seconds
during which a soldier or policeman has to decide
whether to shoot or not. Those assessments must be
made at a time when, despite all his training, the soldier
is subject to great stress. Unsurprisingly, therefore,
judges like Lord Diplock have warned juries trying
soldiers for murder or manslaughter that, when they
consider the circumstances, they must remember that
such action does not occur
"in the calm analytical atmosphere of the court-room
after counsel with the benefit of hindsight have
expounded at length the reasons for and against the
kind and degree of force that was used by the accused;
but in the brief second or two which the accused had
to decide. ... " 29
Lord Diplock's was a legal and intellectual analysis of
the difficulty of coming to a conclusion on disputed
facts. The families of soldiers, and possibly even soldiers