Individual and Collective Reparations: Are They Effective Mechanisms To Remedy International Crime?

By Sinéad MacRory LL.B., Queen’s University Belfast

Throughout the past 50+ years, society in Northern Ireland (NI), has been tore apart by international crime. During ‘The Troubles’, over 3,600 people were killed and 40,000-60,000 injured. Many were subjected to torture, inhumane or degrading treatment, state inaction was rife, and much of the mass perpetration was ideologically driven; essentially resting on whether someone was a Protestant/Unionist, or a Catholic/Nationalist. The past 20 years have been dedicated to trying to fix these broken relationships, however a formal reparations programme has not been executed.

This article begins by addressing the issue of a ‘victim’ both in the general context, and in the specific context of NI, and discuss how this can be a very problematic element for the effectivity of individual and collective reparations in remedying international crime.  It will then assess individual and collective reparations mechanisms which have been implemented throughout the world, and the reparation schemes which exist in NI.

We understand that to aptly remedy any type of crime the key is pragmatism whilst responding to the individual context of that problematic area, and in some cases, this may involve both individual and collective reparations.

Introduction

The contextual backdrop of this article is regarding the need for reparations in NI, in a society recuperating from the aftermath of what became known as ‘The Troubles’; which ‘can be said to have begun in August 1969 when the security situation in Northern Ireland deteriorated to the extent that the British Army was sent in to help the local police force, the Royal Ulster Constabulary.’[1] The political situation in NI was not exactly peaceful before this point; post 1922 and the independence of the then Irish Free State, political instability and violence was rife within Northern Irish society. The Nationalists- who were typically Irish Catholic, wished for a United Ireland; while the Unionists- who were typically Ulster Protestants, wished to maintain the Union with Great Britain. This escalated to in many cases political allegiances being forgotten, and a person’s fate rested solely on their religion, as it was perceived as the measure of your political point of view. The violence reached a pinnacle in the 1970’s, with many fears that Northern Ireland would descend into civil war[2] between the Catholic and Protestant population. A cease fire was called in 1993, and ‘The Belfast Agreement, also known as the Good Friday Agreement, was reached in multi-party negotiations and signed on 10 April 1998.’[3] Peace has ensued for the majority of time since, however many victims have not yet been compensated for the atrocities which they and their families experienced.

Reparations are essential in the aftermath of any instance of international crime.  They are more than simply an idealistic concept of saying sorry and monetary contributions to rectify the damage which has been done. The need for reparations has been flagged by many international law mechanisms, such as; The Universal Declaration of Human Rights, which states that, ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’[4] This is reiterated in the European Convention on Human Rights; the UN have also laid out their Basic Principles and Guidelines on the Right to a Remedy and Reparations. Reparations therefore, are imbedded in our Human Rights legislation, legally making them an essential part of post international crime societies.

International Crime and Reparations Background

The role of international criminal law is to govern relationship between states, enforce common interests of the international community and to protect the upholding of jus cogens. To break any of these mechanisms equates to committing an international crime. Due to the sensitive nature and detrimental, life-altering effect of such, finding an effective remedy can be very difficult.

The United Nations affirms the significant importance ‘of remedies and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law in a systematic and thorough way.’[5]; it is very difficult to imagine that through an apology, money or a community incentive programme, that the effect of these serious violations will become less significant to the victims. Reparations are the mechanisms which have been concocted to remedy these wrongs.

Types of Reparations

Reparations are remedial measures which seek to return the victim to the status quo ante through restitutio in integrum. Reparations have firmly cemented their place in law; it is a part of basic human nature to wish to remedy a wrong, and take care of those who have been caused undue suffering.

We consider reparations as ‘Measures aimed at removing the effects of violations’[6] but by simply providing pay-outs or issuing public apologises it cannot be expected that the victim will feel like they have been rightfully accommodated. The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation recognised that for reparations to be effective, they must envelope the following five categories; Restitution, compensation, rehabilitation, measures of satisfaction and guarantees of non-repetition. Reparations in this sense therefore are not just a legal obligation, as laid out through the International Human Rights legislation, but a moral obligation, to uphold a just and fair society.

The public acknowledgement of their wrongdoing and admission of guilt from the perpetrators will be a dominant issue in the mind of many who are seeking reparations. From an early age, we are taught to rectify wrong doings through candour and apologies. Apologies have ‘a moral, meaning-creating and educative function of reinforcing the sense of the norms of right, wrong and responsibility in the community and between victim and offender’[7], hence apologies play a key role in reparation procedures throughout the world, and are essential in the reunification and repairing of the relationships of the parties involved; making apologies important if reparations are to effectively remedy international crime.

Victim: What Does it Mean?

Victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law.[8]

A victim is an individual who is entitled to receive the reparations from the perpetrator. Without acknowledging a victim, it is impossible for individual and collective reparations to reach their full potential towards remedying international crime, as there is no identifiable place or person to award the reparations to.

In most situations, the victim can be readily identified; the person who suffered harm at the hands of the perpetrator. If we look to one of the most recent decisions of the International Criminal Court, of Germain Katanga which was in relation to the atrocities committed in the Democratic Republic of Congo, involving; murder, attacking a civilian population, destruction of property and pillaging; the ICC was met with ‘341 applicants and found that 297 of them presented sufficient evidence to be considered victims.’[9] These 297 identified victims were then awarded with ‘symbolic compensation of USD 250 per victim as well as collective reparations in the form of support for housing, support for income‑generating activities, education aid and psychological support’[10]. While 44 applicants were unsuccessful in their attempt to be considered victims, the majority here was easily identifiable and readily accepted as victims and availed of reparations with relative ease. This exemplifies that when victims are identified individual reparations are effective in remedying international crime.

However extensive identification is not always necessary, a person should be recognised as a victim ‘regardless of whether the perpetrator of the violation is identified’[11], meaning individual and collective reparations could still be an effective remedy, even if the perpetrator of the crime has not been identified.

This issue of non-identification of the perpetrator may query the utility of individual and collective reparations. This is not an issue which is prevalent in case law, however to truly remedy international crime we must attempt to foresee the problems, as the most effective remedy is prevention. While reparations are key to ‘wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability have existed if that act had not been committed.’[12], and return the victim to an ideal and equal position in society (i.e. restitution); another key feature is to act as a deterrent to the perpetrators.

It is essential that the victim is integrated into society at a fair and equal position regardless of whether the perpetrator is identified or not, to neglect to do so, simply because the perpetrator was unable to be identified could be construed as punishing a person for a crime which was committed against them. However, to award individual or collective reparations for a crime with no identified perpetrator may revoke the utility of reparations as a deterrent.

The pain and devastation; both emotionally and economically, which is felt in the aftermath of international criminal activity is naturally very difficult to remedy. While reparations often soften the pain of this, the only true way to remedy international crime is to ensure it does not happen to begin with. By awarding reparations without identification of the perpetrator, potential future committers of international crime may see it as possible to commit a crime and avoid having to pay the costs for the hurt they have committed. Accepting responsibility is one of the three key elements of reparations (along with acknowledgement of victims and remedying the harm caused); with no identification, it is obvious that there would also be no responsibility claimed, and hence the reparations would not be very effective.

Through the case concerning Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, and Vladimir Šantić, who were brought before the International Criminal Tribunal for the former Yugoslavia  for their roles in the commission of crimes against the Bosnian Muslim population of the village of Ahmići in Bosnia and Herzegovina, the Trial Chamber observed, ‘Where the number of victims is large, each and every victim need not be identified in the indictment.’[13] In this case, the attack resulted in the deaths of over a hundred Muslim inhabitants, numerous others were wounded and Muslim houses and mosques were destroyed, all of which constituted crimes against humanity.[14] This approach may be effective in the context of collective reparations, because they are to an extent ‘catch all’; however, individual reparations will not be effective if there is no victim identified, as there will be no one to award the reparations to.

It is clear therefore for the most effective distribution of either individual or collective reparations, victim identification and acceptance is necessary.

The ‘Victim’ in NI

Identifying and restoring victims to their rightful place in society through reparations also meets another stumbling block when transported to NI, since ‘The scars of the Troubles have formed a moral barrier preventing people from accepting the equality of innocent victims and victim perpetrators.’[15]

The label ‘victim’ is highly contentious, as many of the alleged ‘victims’ were also perpetrators of equally heinous crimes as those which were committed against them. ‘One of the most contentious arguments since 1997 has surrounded the existence of a hierarchy of victims, based on the premise that some victims are more innocent than others.’[16] Due to this, the families are reluctant to acknowledge these wrongdoers as victims. Michelle Williamson, whose parents were killed by a bomb planted in a Shankhill butcher’s shop in 1993, described the ‘one-off ex-gratia recognition payment of £12,000’[17] suggested by Consultative Group on the past Northern Ireland for the nearest relative of victims of the troubles as;

‘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’[18]

The effectiveness, therefore, of individual and collective reparations in remedying the international crimes committed in NI is queried – NI presents as a particularly emotive example- and, since people are to date not willing to accept the proposed reparations, and to be effective, they must be accepted.[19]

Individual Reparations

Due to the unique historical situation of NI, and the context in which the population understands the word ‘victim’, awarding individual reparations consequently, is a more complex process.  Individual reparations aim to remedy a victim’s specific harm or loss responding to their unique situation. ‘These usually take the form of restitution measures (such as restoration of liberty) and/or compensation’[20]. Individual reparations are tailored specifically to each victim and to their case, which enables the victim to feel more satisfied with the justice which has been done, as it will be specifically tailored to them, meaning that they will not be handed a remedy which does not fit their needs.

However, whilst this seems like a positive, it may also be considered a negative aspect of individual reparations. Through the specificity of individual reparations and the tailored aspect of them, it can leave people feeling like a hierarchy of victims exists, making people, like the Williamson family in the Shankill Butchers case, reluctant to accept what has been proposed. This is affected and decided by some level of human bias. A way to by-pass this issue of human bias would be to assess the victims using predictive analytics, which is the ‘use of data, statistical algorithms and machine learning techniques to identify the likelihood of future outcomes based on historical data.’[21] Through manipulating existing data on victim requirements which have been laid out in pre-existing case law, and combining this information with all those who seek victim status within NI, this is an impartial method, based purely on factual, historical information, hence making it more difficult for people to oppose the verdict. This would be complex and require specialist knowledge, but would be an incredibly effective way to differentiate causing minimal upset.

Another issue which may arise with individual reparations, is where there are many victims, which in most cases there typically are, it can be very time consuming to differentiate between each individual and become a huge drain on resources. It is very unlikely that the perpetrator of the crime will have sufficient resources to fund a reparations scheme for all the individual victims, furthermore where they do have the resources, ‘their assets may be tied up and therefore inaccessible to victims until the perpetrator is convicted (see for example the case of Jean-Pierre Bemba before the International Criminal Court)’[22]. Schemes have been enacted through the Rome Statute, which created the Trust Fund for Victims[23]. This exists to fund reparations where the perpetrator does not have sufficient resources. However, in cases with numerous victims, there will not be sufficient resources to properly accommodate all, resulting in a token payment, which while it will have a positive effect on the situation, it is not an ideal remedy to an atrocity at the level of international crime.

In a situation with an economy to support the financial aspect of individual reparations, the effectivity would be increased. In reality, most nations do not have resources of this magnitude readily available, leaving the symbolic reparations the next best alternative.

Collective Reparations

Often alongside individual reparations, we see the existence of collective reparations. While it is possible for either to exist individually, it is more common to see an amalgam of both. To remedy international crime, it is more effective to have the existence of both.

‘Collective reparations focus on remedying the harm of communities as a whole, bypassing issues of funding, efficiency and the creation of a hierarchy.’[24] This may be through mechanisms such as; a-warding equal payments to victims, education incentives, public memorials. Collective reparations are effective in benefiting an entire society, attempting to not only reinstate it to its prior position, but also prosper out of a situation of hardship.

However, this can cause major upset in the context of NI. With the proposition from the Consultative Group on the past Northern Ireland of equal payments to all; some victims felt like the lack of differentiation was unfair due to the fact some of the victims were also perpetrators of other atrocities, and hence felt it was unjust to be equated to this.

Public memorials can be effective in providing reparations for international crime. The 9/11 Memorial in New York had welcomed over 23 million visitors between its first opening in 2011 and December 2015.[25] Although there has also been incidents of controversy surrounding one of New York’s most popular tourist attractions; the recent addition of a gift shop lead to Kurt Horning, whose son Matthew died on 9/11 describe it as ‘”…crass commercialism on a literally sacred site,”’ it appears wherever there are public memorials as collective reparations, controversy seems to arise.

The Eye That Cries memorial was commissioned in Peru in the memory of the victims of the atrocities which occurred under the Alberto Fujimori government (1990-2000). However, in a situation abstractly like that of NI, many of the victims were also perpetrators of international crimes. This has led to ‘demands for the removal of the names, and among some sectors, for the demolition of the memorial altogether.’[26] Again we see that it is very difficult to enact collective reparations successfully, as perpetrators often also benefit from their positive effects.

Furthermore, if we look to the example of the Omagh bomb memorial which was enacted as a form of reparation to the community and the families of the victims who suffered the single greatest atrocity of The Troubles, when a real IRA bomb exploded killing 29 plus a set of unborn twins. On a whole this has been welcomed by the community, however there are examples of anti-social behaviour surrounding it also. The ‘Uprooting trees and plants, overturning benches and throwing flowerpots into the grounds of the county hall,’[27] has been reported in the local press with regards to an incident with the memorial.  Also, very often public memorials are viewed as not enough by the family of those killed. Kevin Skelton whose wife was killed in the Omagh bomb atrocity said ‘We’re still waiting. If that bomb had happened on the mainland[28] there would be people in jail. ´[29] Evidently, public memorials are not always viewed enough to remedy international crime.

Other forms of collective reparations may be education incentives. While integrated education has roots in NI tracing back to 1921, The Belfast agreement included a provision for the ‘Promotion of a culture of tolerance at every level of society, including initiatives to facilitate and encourage integrated education and mixed housing.’[30]  Intergraded education has been found to have ‘incredibly positive influence in young people’s development of respectful and socially conscious attitudes and behaviours’[31]. While it will benefit the children of those convicted of international crimes, we should never punish children for the acts of their parents. Education incentives have therefore been an effective form of collective reparations in remedying international crime; not only is there a benefit of education, but it also improves relationships and a culture of understanding and tolerance from a young age.  

Civil Litigation: Reparations Within The Courts

Evidently, individual and collective reparations are not always entirely effective in remedying international crime. Within NI, civil litigation has been used as a further means of achieving the truth and holding non-state actors accountable for their wrong-doings, and by ‘individuals to seek remedy for a breach of their rights or for harm they have suffered.’[32]; effectively to remedy international crime. In criminal proceedings, a case must be proved ‘beyond reasonable doubt’, where as in civil proceedings it is only necessary to be proved ‘more likely than not.’ Perhaps the highest profile case was that taken by the victims of the 1998 Omagh bomb against members of the Real IRA, who were unsuccessful in a criminal court but successful in this forum. This may be something which the rest of the world could draw influence from as an effective way of remedying international crime when prosecution is not available as a means of truth recovery.

Conclusion

In summation; the situation in NI still requires attention. Many of the victims are dissatisfied, as is seen through the Legacy issues at Stormont recently. In many situations victims still feel the hurt of the atrocities committed against them, and have rejected the proposition of reparations. This highlights the difficult nature of reparations, and the many complex issues which surround ensuing all victims feel they have had their needs adequately met.

The situation in NI does not follow a formal reparations programme, however through different mechanisms, such as civil litigation almost all frontiers are covered. The most effective way to award reparations for international crime is to be pragmatic and adapt to the current situation, rather than implementing a uniform individual and collective reparations scheme worldwide.

In the case of international crime, the most effective remedy is prevention. This means that the idea of reparations as deterrents is very important in discouraging future committing of international crime. Mechanisms such as improving relations through collective reparations are highly important in the Northern Irish example, and too with all situations, as if we live in a society with a culture of tolerance and understanding, it is less likely that we will see instances of these heinous acts.

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— Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 2006

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–Germany v Poland (Case concerning the factory at Chorzow (indemnity) [1928] Permanent Court of International Justice (PCIJ), para. 125.

–Goiburú et al v Paraguay [2006] Serie C No. 153, Inter-American Court of Human Rights (IACrtHR), [143].

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–The Belfast Agreement 1998.

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–The Telegraph, ‘It’s Blood Money – Truly The Wages Of Sin’ (2009)

–The Universal Declaration of Human Rights 1948, Article 8.

— ‘Trust Fund For Victims’ (Icc-cpi.int, 2018) <https://www.icc-cpi.int/tfv> accessed 26 February 2018

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[1] Samantha Newbery, ‘Ireland V UK: The European Court Of Human Rights And International Relations 1971-1978’ (2017) 3 European Human Rights Law Review.

[2] Ed Moloney, A Secret History of the IRA (London: Allen Lane, 2002), p.66.

[3] ‘The Belfast Agreement – GOV.UK’ (Gov.uk, 1998) <https://www.gov.uk/government/publications/the-belfast-agreement> accessed 26 February 2018.

[4] The Universal Declaration of Human Rights 1948, Article 8.

[5] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 2006.

[6] Goiburú et al v Paraguay [2006] Serie C No. 153, Inter-American Court of Human Rights (IACrtHR), [143].

[7] Prue Vines, ‘Apologies and Civil Liability in the UK: A View from Elsewhere’ (2008) 12 Edinburgh Law Review <https://login-westlaw-co-uk.queens.ezp1.qub.ac.uk/maf/wluk/app/document?&srguid=i0ad832f20000015bbfece98e69bae9d5&docguid=I10DA2710575211DD959DA8CB31D4D67F&hitguid=I10DA2710575211DD959DA8CB31D4D67F&rank=3&spos=3&epos=3&td=20&crumb-action=append&context=18&resolvein=true> accessed 30 April 2017.

[8] ‘OHCHR | Basic Principles and Guidelines on the Right to a Remedy and Reparation’ (Ohchr.org, 2005) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx> accessed 1 May 2017.

[9] International Criminal Court, ‘Katanga Case: ICC Trial Chamber II Awards Victims Individual and Collective Reparations’ (2017).

[10] ibid.

[11] ibid.

[12] Germany v Poland (Case concerning the factory at Chorzow (indemnity) [1928] Permanent Court of International Justice (PCIJ), para. 125.

[13] The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic [2001] international Criminal Tribunal for the former Yugoslavia (ICTY), United Nations, para. 90.

[14] Unfortunately, crimes of this nature have not ceased. Mass genocides are still occurring all over the world, a recent example are the multiple claims against the Myanmar government on accounts of ethnic cleansing of the Rohingya people in 2013, 2016 and again 2017. The victims in this case have in most instances not been afforded citizenship, so identification would be very difficult considering they do not hold official identification issued by a recognised country. For cases of this nature, it is also necessary that reparations can be awarded without identification; again, highlighting the importance of collective reparations, as it is not the fault of the Rohingya people that they cannot be officially identified. This case also raises the question of the almost 168,000 people who have fled the country since 2012 and how reparations should be awarded to them, when.- in many cases both their identity and location is unknown, but the grievous suffering which they endured was a direct result of the brutal Myanmar regime.

[15] Amber Kelly, ‘Establishing a Formal Reparations Programme for Victims of the Troubles in Northern Ireland’ [2017] QUB Student Law Journal <https://blogs.qub.ac.uk/studentlawjournal/the-challenges-of-reparations-for-mass-atrocities-in-relation-to-relevant-case-studies/> accessed 30 April 2017.

[16] Dr. Sara McDowell, ‘CAIN: Victims: Who Are the Victims? By Sara McDowell 2007’ (Cain.ulst.ac.uk, 2007) <http://cain.ulst.ac.uk/victims/introduction/smcd07whoarethevictims.html> accessed 1 May 2017.

[17] Consultative Group on the Past, ‘Report of The Consultative Group on The Past’ (2009) <http://cain.ulst.ac.uk/victims/docs/consultative_group/cgp_230109_report.pdf> accessed 14 May 2017.

[18] : The Telegraph, ‘It’s Blood Money – Truly the Wages of Sin’ (2009) <http://www.telegraph.co.uk/news/worldnews/europe/ireland/4412809/Its-blood-money-truly-the-wages-of-sin.html> accessed 30 April 2017.

[19] This difficulty identifying victims and awarding reparations to date can be seen clearly through the current legacy issues in Stormont. A consensus of public opinion shows that there is a desire to expedite this process due to the rising age of many of those who may wish to come forward, however those in power have not been able to come to an agreement on this. The current Stormont deadlock is adding to and highlighting the core issue being discussed here; in the NI community, many individuals find it difficult to accept victims and to respect both sides of history, with those in power finding it difficult to agree on where to fall on contentious issues; and in the context of NI, to identify someone as a victim may be very controversial, depending on that individual’s past, hence adding to the difficulty of victim identification.

[20] Jenny Leigh Mc Williams, Jordan Hawthorne, ‘Individual and Collective Reparations’ <https://blogs.qub.ac.uk/remedy/reparation-issues/individual-and-collective-reparations/> accessed 2 May 2017.

[21] Predictive Analytics: What It Is And Why It Matters’ (Sas.com, 2018) <https://www.sas.com/en_us/insights/analytics/predictive-analytics.html> accessed 26 February 2018.

[22] Jenny Leigh Mc Williams, Jordan Hawthorne, ‘Individual and Collective Reparations’ <https://blogs.qub.ac.uk/remedy/reparation-issues/individual-and-collective-reparations/> accessed 2 May 2017.

[23] ‘Trust Fund For Victims’ (Icc-cpi.int, 2018) <https://www.icc-cpi.int/tfv> accessed 26 February 2018.

[24] ibid.

[25] ‘2015 Annual Report | National September 11 Memorial & Museum’ (2015 Annual Report | National September 11 Memorial & Museum, 2015) <http://2015.911memorial.org/> accessed 14 May 2017.

[26] Katherine Hite, ‘‘The Eye That Cries’: The Politics of Representing Victims in Contemporary Peru’ (2007) Vol. 5 A Journal on Social History and Literature in Latin America.

[27] David Sharrock, ‘Thugs Ruin Memorial Garden for Omagh Dead’ The Telegraph (2001).

[28] ‘Mainland’ is a colloquial term used within Northern Ireland, as a reference to Great Britain.

[29] Tracy McVeigh, ‘Ten Years On, and Omagh Is Far from Over for Us’ The Guardian (2008).

[30] The Belfast Agreement 1998.

[31] Laurie Shepherd Johnson and Sheelagh Murnaghan, ‘The Practice of Integrated Education in Northern Ireland: The Teachers’ Perspective’ (Incore: International Conflict Research Institute 2001).

[32] ‘Amnesties, Prosecutions and Civil Litigation’ <https://blogs.qub.ac.uk/amnesties/files/2014/02/Civil-litigation.pdf> accessed 1 May 2017.