Establishing a Formal Reparations Programme for Victims of the Troubles in Northern Ireland

 

Establishing a Formal Reparations Programme for Victims of the Troubles in Northern Ireland

Author:

Amber Kelly

Queen’s University, Belfast

 

 

 

 

 

Abstract

The complex reality of the political conflict in Northern Ireland has resulted in a reluctance to establish a formal reparations programme for victims.   Northern Ireland’s ad hoc approach for dealing with the past has been ineffective in alleviating and acknowledging the harm victims of the Troubles have suffered. 

This article reflects on possible methods for the implementation of a reparations programme in Northern Ireland. In light of the recent pension proposal, this article provides a critical assessment of the reasons for a stalled agreement with a particular focus on the challenges surrounding eligibility of victim-perpetrators for reparations and assumption of responsibility, looking at the role of non-state actors.  Finally, this article will discuss the possibility of creating a truth commission in Northern Ireland.

This article will conclude that reparations cannot be a stand-alone effort. Reparations must be incorporated into a transitional justice package, with a truth commission at its centre. 

Introduction

Reparations are intended to ‘promote justice by redressing gross violations of international human rights law’[1] and ‘as far as possible, to wipe out all the consequences of the illegal act’[2]. De Grieff outlines that the fundamental challenge reparations face today is the reluctance of the government to establish a programme, resulting in an arbitrary situation where victims receive little or no reparation[3].  Northern Ireland endured decades of horror of the Troubles, resulting in the death of 3,600 and the injury of 40,000 more. Despite this, the government has been reluctant to develop a formalistic reparations programme, largely due to the political and religious backdrop of the conflict making reparations a political and moral conundrum.

In this first section, this article will discuss Northern Ireland’s disjointed approach to reparations.  Through assessing the recent pension proposal, the article will examine the main controversies at the heart of the reluctance to implement a reparations programme; namely victim eligibility and allocation of responsibility in relation to non-state armed groups. This article will then conclude by providing a critical assessment of the possibility of the establishment of a truth commission and examine the possible models for implementing a pension for Troubles victims.

 ‘Dealing with the Past’

MacBride argues that the transitional justice landscape in Northern Ireland is a constantly changing and evolving map yet through all of our reforms, we have shied away from mainstreaming the concept of reparations[4]. Apart from a brief reference to the fact that ‘further work will be undertaken to seek an acceptable way forward on the proposal for a pension’ in the Stormont House Agreement 2014, discussion of reparations have failed to be at the forefront of talks on dealing with the past.

The Good Friday Agreement welcomed a new era after a period of violence in Northern Ireland but it didn’t contain any formal mechanisms for addressing the past, particularly through reparations. Undoubtedly, Northern Ireland has done significant work to deal with the past including investigations, apologies and memorials to name a few. However, the Northern Ireland Human Rights Commission points out that the ad hoc and independent nature of these initiatives has left a sense that not very much is being done[5].  Despite the efforts of the Consultative Group of the Past in proposing a reparations payment of £12,000 to the families of victims of the Troubles, Northern Ireland has never benefited from a clear and cohesive transitional justice framework[6]

Pension Proposal

The 2014 Stormont House Agreement made reference to the fact that ‘further work will be undertaken to seek an acceptable way forward on the proposal for a pension for severely physically injured victims in Northern Ireland’[7]. The media’s response to the idea of a pension has been sceptical with the Daily Telegraph reporting that ‘Disabled Ex-Terrorists may get a £150-a-week Pension’[8]. The DUP have also stated that they would ‘rather there be no pension provision that for perpetrators benefit’[9]. The controversy surrounding implementation of a pension has centered on eligibility of complex victims and acknowledgment of responsibility.

‘Complex Victims’

‘It’s blood money. It truly is the wages of sin.  To accept it would be to besmirch my parents’ memory, to acknowledge that they are just the same as the scum that murdered them’[10]

Northern Ireland is engaged in political contestation around the concept of victimhood, inextricably bound to the disputed history of the island. A hierarchy of suffering has therefore emerged which perpetuates a contest over who suffered more and who the real victims are[11] Noel Large says that the lack of consensus over who is a victim in Northern Ireland’s biggest problem[12]. The scars of the Troubles have formed a moral barrier preventing people from accepting the equality of innocent victims and victim perpetrators.

Principle 25 of the UN Basic Principles on Reparation stipulates that reparations should be applied ‘without any discrimination of any kind, without exception’[13]. Shelton emphasises this suggesting that ‘the character of the victim should not be considered because it is irrelevant to the wrong and to the remedy’[14]

Regardless of these principles, recognizing who is a victim in the aftermath of violent conflict can be politically and morally controversial.  During periods of violence conflict, many victims become combatants perpetrating violence against others and creating the need for a post violence strategy to ‘contend with the detritus’[15]

The remedial nature of reparations can come into immediate conflict with the definition of victim perpetrators.  As a result, a ‘hierarchy of victims’ can arise in which ‘innocent or real victims are prioritised to facilitate the appropriation of blame and innocence in political narratives of past conflict[16]. McEvoy and McConnachie argue that the juxtaposition of victimhood and perpetration is more explicit in transitional contexts. The innocent victim is placed at the ‘apex of the hierarchy’ and becomes a symbol around which notions of the past are constructed[17].

It is clear that victims and perpetrators cannot be quarantined into clear cut categories. However, if we ignore the responsibility of complex victims, we are acknowledging that everyone was victimized and suffered in equal amounts[18]. Morrissey and Smyth also suggest that if we adopt the idea that ‘everyone is a victim’, we will allow those responsible to escape their guilt or shame and ‘promote a culture of powerlessness and undifferentiated chaos’[19].

Starzyk’s notion that reparations are more likely to be publicly accepted when they do not compromise social values is close to home in Northern Ireland[20]. Equating a member of a terrorist group with an innocent victim is widely regarded as morally reprehensible.  However, Moffett argues that creating a ‘hierarchy of victims’ facilitates political narratives of blame and innocence during the conflict, emphasising that this politicizes the nature of the conflict and undermines the loss suffered[21]

There is no universally accepted state practice as to whether to include members of terrorist groups within reparations programmes.  In Columbia, the 2011 restitution of land law stipulates that members of terrorist groups are not eligible for reparations[22]. Similarly, in Peru, the truth commission regarded members of non-state armed groups as ‘victims, but not beneficiaries of reparations’[23]. In contrast, for example, in Kosovo, the reparation law includes veterans and member of the Kosovo Liberation Army[24]

Despite the UN Basic Principle 9, human rights courts haven’t strictly adhered to rewarding reparations without discrimination. For example, in McCann v UK, British Special Forces killed three members of the IRA in Gibraltar who were planning to detonate a bomb at a British military parade.   The Court ruled that there was a violation of Article 2 had occurred but it did not ‘consider it appropriate to make a reward’[25].   However, in Miguel Castro Castro Prison,  the Inter American Court of Human Rights awarded substantial to the victims, who were members of the Shining Path, on the basis that as a human rights court, it couldn’t judge the circumstances of criminal acts[26]. However, recently the IACHR has limited compensation to family members of hostage-takers killed by State forces, suggesting that the Court may be becoming more flexible towards complex victims[27]. Moffett argues that the human rights approach fails to capture the more complex web of victimization.  It cannot sufficiently address the more complex political values involved in constructing reparations after internal armed conflict[28]. Awarding a remedy without taking into account the nature of the claimant is an unworkable solution in practice and fails to take into account the fragmented nature of relationships in Northern Ireland.

‘Responsibility’

The pension proposal is a clear step in the right direction towards alleviating harm caused but we must go beyond this and allocate responsibility. According to the Assessment on Paramilitary Groups in Northern Ireland, “all the main paramilitary groups operating during the Troubles are still in existence”[29].  They must be held accountable which will provide an important psychological function in directing blame towards the person who committed the atrocity and can also symbolise their commitment to remedying the past.^[30]

Reparations are seen as the responsibility of the State but particularly in a context as politically sensitive as Northern Ireland, reparations should mirror the reality of the conflict. Paramilitary groups account for 90% of the violence perpetrated during the Troubles so they must share in the burden of responsibility[31].  In Columbia, a comprehensive reparations programme has been established, incorporating the responsibility of armed groups.  Article 42 of the Justice and Peace Law 2005 provides that members of armed groups are under a duty to reparation to the victims of criminal conduct. Moffett states that the Columbian approach represents the ability of armed groups to be held to account[32]

A key issue when holding armed groups to account is what form reparations could take. We must acknowledge the steps already taken by these groups in remedying the past including issuing official apologies, independent investigations, providing information on the disappeared and more.[33]. Given that the IRA has an annual turnover of £32 million, we could look into constructing a compensation based form of reparations.[34]. Since these resources may be available, armed non-state groups could use them to fund compensation awards, restitution and construction of memorials[35]. Although this approach would serve to recognize and compensate the harm caused, I don’t think it is the best solution. Given the nature of the conflict, victims are more likely to seek justice and truth than monetary compensation.

Moffett suggests that a more symbolic form of reparations may be the most appropriate in finding acknowledgment and truth as to what happened.[36] I believe the best way to do this is through the establishment of an official truth commission which I will go on to discuss in the next section of this article.

A truth commission for Northern Ireland?

‘The absence of any official forum for addressing the past and moving towards a ‘social truth’, which could underwrite and justify institutional transformation, haunts attempts at reform’[37]

I acknowledge that victims have been able to talk to paramilitary groups with the hope of finding out how their family member was killed but we need to establish an official, government regulated truth commission.  The Stormont House Agreement 2014 proposed the creation of an Independent Commission on Information Retrieval, enabling victims to seek information about Troubles related deaths.[38]. This Commission hasn’t been established yet and this is something I feel we need to push forward on.

Hamber highlights that an official truth recovery process could enhance existing grass-roots processes of remembering, acknowledging hurt and apportioning responsibility. However, he also points out that given the history of sectarianism in Northern Ireland, an official truth recovery process could potentially increase political tensions and lead to unnecessary finger pointing[39]. Hamber’s concerns are well founded but the prospect of truth recovery shifts the scale towards establishing a truth commission.

There is clear tension between attempts to recover the truth, involving some amnesty like measures and the desire by some actors to continue to secure prosecutions. McEvoy and Mallinder suggest a number of options for establishing a truth recovery process.  They discuss a number of models including a stay on prosecutions, use immunity and a truth commission which allows prosecution based on witness testimony[40]. However, I am going to focus on their proposal for a truth commission combined with amnesty.  This would involve offenders being invited to come forward. They would apply for amnesty in exchange for full disclosure of the truth and a successful amnesty application would negate civil and criminal responsibility.[41]McEvoy and Mallinder discuss that this model would encourage non-state actors to come forward and offer full disclosure and narrow the space for permissible lies. However, it is also apparent that the use of amnesty is likely to attract political controversy[42]. I acknowledge the limitations of this model but I think it is the most appropriate method of achieving truth.  There is a concern that allowing offenders to avoid civil and criminal liability would undermine the idea of justice but given that prosecution of individuals that caused atrocities during the Troubles is uncommon in practice, this would only reflect what is already our reality.

Discussions around a truth commission are not unique to Northern Ireland and have been used in other post-conflict societies, the most notable being the South African Truth and Reconciliation Commission[43]. In this Commission, perpetrators of past abuses could receive immunity from criminal and civil prosecutions if they fully disclosed their role in past crimes and demonstrated that these crimes were politically-motivated. I understand that we cannot simply clone the South African model into Northern Ireland, but it provides a shining example of the workability of truth commissions.

There are also concerns about who is going to run a truth commission. In a survey by Lundy and McGovern, 91% of respondents said that they would not trust the British government to run a truth commission but 46% said they would trust an international agency such as the UN[44]. I note the limitations of this survey given that it was conducted in 2007 and a considerable amount of time has lapsed. However, I believe that an international agency would still be better placed to run the Commission given the involvement of the British and Irish governments in the Troubles.

As Connolly points out truth commissions are ‘not magic wands’. They shouldn’t be viewed as the ultimate means to achieve the goal of reconciliation but rather as a means by which to establish a foundation of shared historical truths upon which the entire complex process of post-conflict transition may rest[45].  A truth commission should be created alongside the proposed pension which I will go on to discuss in the next part of this article.

Models for a Pension

Moffett suggests three possible models for implementing a pension. Firstly, he discusses a non-discriminatory approach, focusing on the human rights angle that everyone should have access to an effective remedy for serious injury or death. Moffett points out that such a wide definition would make a large victim population eligible and dilute the amount and proportion available to those who suffered the most[46]. I would add to this as the existence of a broad pension scheme may attract too many applicants and raise the common concerns about ‘straining the public purse’ and a ‘compensation culture.

A second model suggests establishing a private trust fund. Innocent victims who suffered serious injuries would automatically receive their pension from the government whereas victimized-perpetrators would receive a comparable amount through a private trust fund without attaching government to it.  The funding could come from private, charitable donors or international organisations[47]. Due to funding constraints, this is not a workable solution as charitable groups may be reluctant to attach their name to ‘terrorists’. Also, given the affiliation of members of Sinn Fein with the IRA, it may be impossible to separate private donors and government.

A third model suggests a review panel built into the pension scheme to determine whether victimized perpetrators should be eligible based on the circumstances.  The panel could take into account the time victimized perpetrators served in prison, the gravity of their offences and the impact of their injury on their life.  It could also assess the extent of a person’s harm against their responsibility.  Model 3 is the most workable solution as it strikes an appropriate balance between alleviating harm caused to victims of the troubles while simultaneously acknowledging the responsibility of victim perpetrators.

Conclusion

‘Compensation is important but reparations work best when seen as part of a comprehensive justice policy, rather than an isolated effort’[48].

I have provided a critical look at the proposed pension for victims of the Troubles, with a particular focus on complex victims and assumption of responsibility. I have also considered whether the implementation of a truth commission is a viable option and considered the possible options for implementing a pension.

Monetary reparations alone are not sufficient. They must serve as part of a transitional justice package and the best way to do this is through the creation and implementation of a truth commission.  It is clear that this method will not entirely solve the complicated political situation in Northern Ireland but it is an appropriate method of alleviating the harm caused.

 

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