{"id":1000,"date":"2019-07-15T23:31:43","date_gmt":"2019-07-15T22:31:43","guid":{"rendered":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/?p=1000"},"modified":"2019-07-15T23:32:39","modified_gmt":"2019-07-15T22:32:39","slug":"individual-and-collective-reparations-are-they-effective-mechanisms-to-remedy-international-crime","status":"publish","type":"post","link":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/2019\/07\/15\/individual-and-collective-reparations-are-they-effective-mechanisms-to-remedy-international-crime\/","title":{"rendered":"Individual and Collective Reparations: Are They Effective Mechanisms To Remedy International Crime?"},"content":{"rendered":"\n

By Sin\u00e9ad MacRory LL.B., Queen’s University Belfast <\/strong><\/p>\n\n\n\n

Throughout the past 50+ years, society in Northern\nIreland (NI), has been tore apart by international crime. During \u2018The\nTroubles\u2019, over 3,600 people were killed and 40,000-60,000 injured. Many were\nsubjected to torture, inhumane or degrading treatment, state inaction was rife,\nand much of the mass perpetration was ideologically driven; essentially resting\non whether someone was a Protestant\/Unionist, or a Catholic\/Nationalist. The\npast 20 years have been dedicated to trying to fix these broken relationships,\nhowever a formal reparations programme has not been executed. <\/em><\/p>\n\n\n\n

This article begins by addressing the issue of\na \u2018victim\u2019 both in the general context, and in the specific context of NI, and\ndiscuss how this can be a very problematic element for the effectivity of\nindividual and collective reparations in remedying international crime.  It will then assess individual and collective\nreparations mechanisms which have been implemented throughout the world, and\nthe reparation schemes which exist in NI. <\/em><\/p>\n\n\n\n

We understand that to aptly remedy any type of\ncrime the key is pragmatism whilst responding to the individual context of that\nproblematic area, and in some cases, this may involve both individual and\ncollective reparations.<\/em><\/p>\n\n\n\n

Introduction<\/strong><\/p>\n\n\n\n

The\ncontextual backdrop of this article is regarding the need for reparations in\nNI, in a society recuperating from the aftermath of what became known as \u2018The\nTroubles\u2019; which \u2018can be said to have begun in August 1969 when the security\nsituation in Northern Ireland deteriorated to the extent that the British Army\nwas sent in to help the local police force, the Royal Ulster Constabulary.\u2019[1]<\/a>\nThe political situation in NI was not exactly peaceful before this point; post\n1922 and the independence of the then Irish Free State, political instability\nand violence was rife within Northern Irish society. The Nationalists- who were\ntypically Irish Catholic, wished for a United Ireland; while the Unionists- who\nwere typically Ulster Protestants, wished to maintain the Union with Great\nBritain. This escalated to in many cases political allegiances being forgotten,\nand a person\u2019s fate rested solely on their religion, as it was perceived as the\nmeasure of your political point of view. The violence reached a pinnacle in the\n1970\u2019s, with many fears that Northern Ireland would descend into civil war[2]<\/a>\nbetween the Catholic and Protestant population. A cease fire was called in\n1993, and \u2018The Belfast Agreement, also known as the Good Friday Agreement, was\nreached in multi-party negotiations and signed on 10 April 1998.\u2019[3]<\/a>\nPeace has ensued for the majority of time since, however many victims have not\nyet been compensated for the atrocities which they and their families\nexperienced. <\/p>\n\n\n\n

Reparations\nare essential in the aftermath of any instance of international crime.  They are more than simply an idealistic\nconcept of saying sorry and monetary contributions to rectify the damage which\nhas been done. The need for reparations has been flagged by many international\nlaw mechanisms, such as; The Universal Declaration of Human Rights, which\nstates that, \u2018Everyone has the right to an effective remedy by the competent national\ntribunals for acts violating the fundamental rights granted him by the constitution\nor by law.\u2019[4]<\/a>\nThis is reiterated in the European Convention on Human Rights; the UN have also\nlaid out their Basic Principles and Guidelines on the Right to a Remedy and\nReparations. Reparations therefore, are imbedded in our Human Rights legislation,\nlegally making them an essential part of post international crime societies. <\/p>\n\n\n\n

International Crime and Reparations Background<\/strong><\/p>\n\n\n\n

The\nrole of international criminal law is to govern relationship between states,\nenforce common interests of the international community and to protect the\nupholding of jus cogens. To break any of these mechanisms equates to committing\nan international crime. Due to the sensitive nature and detrimental, life-altering\neffect of such, finding an effective remedy can be very difficult. <\/p>\n\n\n\n

The\nUnited Nations affirms the significant importance \u2018of remedies and reparation\nfor victims of gross violations of international human rights law and serious\nviolations of international humanitarian law in a systematic and thorough way.\u2019[5]<\/a>; it\nis very difficult to imagine that through an apology, money or a community\nincentive programme, that the effect of these serious violations will become\nless significant to the victims. Reparations are the mechanisms which have been\nconcocted to remedy these wrongs.<\/p>\n\n\n\n

Types of Reparations<\/strong><\/p>\n\n\n\n

Reparations\nare remedial measures which seek to return the victim to the status quo ante\nthrough restitutio in integrum. Reparations have firmly cemented their place in\nlaw; it is a part of basic human nature to wish to remedy a wrong, and take\ncare of those who have been caused undue suffering. <\/p>\n\n\n\n

We\nconsider reparations as \u2018Measures aimed at removing the effects of violations\u2019[6]<\/a> but\nby simply providing pay-outs or issuing public apologises it cannot be expected\nthat the victim will feel like they have been rightfully accommodated. The UN\nBasic Principles and Guidelines on the Right to a Remedy and Reparation recognised\nthat for reparations to be effective, they must envelope the following five\ncategories; Restitution, compensation, rehabilitation, measures of satisfaction\nand guarantees of non-repetition. Reparations in this sense therefore are not\njust a legal obligation, as laid out through the International Human Rights\nlegislation, but a moral obligation, to uphold a just and fair society. <\/p>\n\n\n\n

The\npublic acknowledgement of their wrongdoing and admission of guilt from the perpetrators\nwill be a dominant issue in the mind of many who are seeking reparations. From\nan early age, we are taught to rectify wrong doings through candour and\napologies. Apologies have \u2018a moral, meaning-creating and educative function of\nreinforcing the sense of the norms of right, wrong and responsibility in the\ncommunity and between victim and offender\u2019[7]<\/a>, hence\napologies play a key role in reparation procedures throughout the world, and\nare essential in the reunification and repairing of the relationships of the\nparties involved; making apologies important if reparations are to effectively\nremedy international crime.<\/p>\n\n\n\n

Victim: What Does it Mean?<\/strong><\/p>\n\n\n\n

Victims are persons who individually or\ncollectively suffered harm, including physical or mental injury, emotional\nsuffering, economic loss or substantial impairment of their fundamental rights,\nthrough acts or omissions that constitute gross violations of international\nhuman rights law, or serious violations of international humanitarian law.[8]<\/strong><\/a><\/em><\/p>\n\n\n\n

A\nvictim is an individual who is entitled to receive the reparations from the\nperpetrator. Without acknowledging a victim, it is impossible for individual\nand collective reparations to reach their full potential towards remedying\ninternational crime, as there is no identifiable place or person to award the\nreparations to.<\/p>\n\n\n\n

In\nmost situations, the victim can be readily identified; the person who suffered\nharm at the hands of the perpetrator. If we look to one of the most recent\ndecisions of the International Criminal Court, of Germain Katanga which was in\nrelation to the atrocities committed in the Democratic Republic of Congo, involving;\nmurder, attacking a civilian population, destruction of property and pillaging;\nthe ICC was met with \u2018341 applicants and found that 297 of them\npresented sufficient evidence to be considered victims.\u2019[9]<\/a>\nThese 297 identified victims were then awarded with \u2018symbolic compensation of\nUSD 250 per victim as well as collective reparations in the form of\nsupport for housing, support for income\u2011generating activities, education aid\nand psychological support\u2019[10]<\/a>. While\n44 applicants were unsuccessful in their attempt to be considered victims, the\nmajority here was easily identifiable and readily accepted as victims and\navailed of reparations with relative ease. This exemplifies that when victims\nare identified individual reparations are effective in remedying international\ncrime.<\/p>\n\n\n\n

However\nextensive identification is not always necessary, a person should be recognised\nas a victim \u2018regardless of whether the perpetrator of the violation is\nidentified\u2019[11]<\/a>,\nmeaning individual and collective reparations could still be an effective\nremedy, even if the perpetrator of the crime has not been identified. <\/p>\n\n\n\n

This\nissue of non-identification of the perpetrator may query the utility of\nindividual and collective reparations. This is not an issue which is prevalent\nin case law, however to truly remedy international crime we must attempt to\nforesee the problems, as the most effective remedy is prevention. While reparations\nare key to \u2018wipe out all the consequences of the illegal act and re-establish\nthe situation which would, in all probability have existed if that act had not\nbeen committed.\u2019[12]<\/a>,\nand return the victim to an ideal and equal position in society (i.e.\nrestitution); another key feature is to act as a deterrent to the perpetrators.\n<\/p>\n\n\n\n

It\nis essential that the victim is integrated into society at a fair and equal\nposition regardless of whether the perpetrator is identified or not, to neglect\nto do so, simply because the perpetrator was unable to be identified could be\nconstrued as punishing a person for a crime which was committed against them.\nHowever, to award individual or collective reparations for a crime with no\nidentified perpetrator may revoke the utility of reparations as a deterrent. <\/p>\n\n\n\n

The\npain and devastation; both emotionally and economically, which is felt in the\naftermath of international criminal activity is naturally very difficult to\nremedy. While reparations often soften the pain of this, the only true way to\nremedy international crime is to ensure it does not happen to begin with. By\nawarding reparations without identification of the perpetrator, potential future\ncommitters of international crime may see it as possible to commit a crime and avoid\nhaving to pay the costs for the hurt they have committed. Accepting\nresponsibility is one of the three key elements of reparations (along with acknowledgement\nof victims and remedying the harm caused); with no identification, it is\nobvious that there would also be no responsibility claimed, and hence the\nreparations would not be very effective.<\/p>\n\n\n\n

Through the case concerning Zoran Kupre\u0161ki\u0107, Mirjan Kupre\u0161ki\u0107, Vlatko\nKupre\u0161ki\u0107, Drago Josipovi\u0107, and Vladimir \u0160anti\u0107, who were brought before\nthe International Criminal Tribunal for the former Yugoslavia  for their roles in the commission of crimes\nagainst the Bosnian Muslim population of the village of Ahmi\u0107i in Bosnia\nand Herzegovina, the Trial Chamber observed, \u2018Where the\nnumber of victims is large, each and every victim need not be identified in the\nindictment.\u2019[13]<\/a>\nIn this case, the attack\nresulted in the deaths of over a hundred Muslim inhabitants, numerous others\nwere wounded and Muslim houses and mosques were destroyed, all of which\nconstituted crimes against humanity.[14]<\/a> This\napproach may be effective in the context of collective reparations, because they\nare to an extent \u2018catch all\u2019; however, individual reparations will not be\neffective if there is no victim identified, as there will be no one to award\nthe reparations to.<\/p>\n\n\n\n

It\nis clear therefore for the most effective distribution of either individual or\ncollective reparations, victim identification and acceptance is necessary.<\/p>\n\n\n\n

The \u2018Victim\u2019 in NI<\/strong><\/p>\n\n\n\n

Identifying\nand restoring victims to their rightful place in society through reparations\nalso meets another stumbling block when transported to NI, since \u2018The scars of the Troubles have formed a moral barrier\npreventing people from accepting the equality of innocent victims and victim\nperpetrators.\u2019[15]<\/a><\/p>\n\n\n\n

The\nlabel \u2018victim\u2019 is highly contentious, as many of the alleged \u2018victims\u2019 were\nalso perpetrators of equally heinous crimes as those which were committed\nagainst them. \u2018One of the most contentious arguments since 1997 has surrounded\nthe existence of a hierarchy of victims, based on the premise that some victims\nare more innocent than others.\u2019[16]<\/a>\nDue to this, the families are reluctant to acknowledge these wrongdoers as victims.\nMichelle Williamson, whose parents were killed by a bomb planted in a Shankhill\nbutcher\u2019s shop in 1993, described the \u2018one-off ex-gratia recognition payment of\n\u00a312,000\u2019[17]<\/a>\nsuggested by Consultative Group on the past Northern Ireland for the nearest\nrelative of victims of the troubles as;<\/p>\n\n\n\n

\u2018It\u2019s blood money. It truly is the wages of sin. \nTo accept it would be to besmirch my parents\u2019 memory, to acknowledge that they\nare just the same as the scum that murdered them\u2019[18]<\/strong><\/a><\/em><\/p>\n\n\n\n

The\neffectiveness, therefore, of individual and collective reparations in remedying\nthe international crimes committed in NI is queried \u2013 NI presents as a\nparticularly emotive example- and, since people are to date not willing to\naccept the proposed reparations, and to be effective, they must be accepted.[19]<\/a><\/p>\n\n\n\n

Individual Reparations<\/strong><\/p>\n\n\n\n

Due\nto the unique historical situation of NI, and the context in which the\npopulation understands the word \u2018victim\u2019, awarding individual reparations\nconsequently, is a more complex process.  Individual reparations aim to remedy a\nvictim\u2019s specific harm or loss responding to their unique situation. \u2018These\nusually take the form of restitution measures (such as restoration of liberty)\nand\/or compensation\u2019[20]<\/a>.\nIndividual reparations are tailored specifically to each victim and to their\ncase, which enables the victim to feel more satisfied with the justice which\nhas been done, as it will be specifically tailored to them, meaning that they\nwill not be handed a remedy which does not fit their needs.<\/p>\n\n\n\n

However,\nwhilst this seems like a positive, it may also be considered a negative aspect\nof individual reparations. Through the specificity of individual reparations\nand the tailored aspect of them, it can leave people feeling like a hierarchy\nof victims exists, making people, like the Williamson family in the Shankill\nButchers case, reluctant to accept what has been proposed. This is affected and\ndecided by some level of human bias. A way to by-pass this issue of human bias\nwould be to assess the victims using predictive analytics, which is the \u2018use of\ndata, statistical algorithms and machine learning techniques to identify the likelihood\nof future outcomes based on historical data.\u2019[21]<\/a>\nThrough manipulating existing data on victim requirements which have been laid\nout in pre-existing case law, and combining this information with all those who\nseek victim status within NI, this is an impartial method, based purely on\nfactual, historical information, hence making it more difficult for people to\noppose the verdict. This would be complex and require specialist knowledge, but\nwould be an incredibly effective way to differentiate causing minimal upset.<\/p>\n\n\n\n

Another\nissue which may arise with individual reparations, is where there are many\nvictims, which in most cases there typically are, it can be very time consuming\nto differentiate between each individual and become a huge drain on resources.\nIt is very unlikely that the perpetrator of the crime will have sufficient resources\nto fund a reparations scheme for all the individual victims, furthermore where\nthey do have the resources, \u2018their assets\nmay be tied up and therefore inaccessible to victims until the perpetrator is\nconvicted (see for example the case of Jean-Pierre Bemba before the\nInternational Criminal Court)\u2019[22]<\/a>.\nSchemes have been enacted through the Rome Statute, which created the Trust\nFund for Victims[23]<\/a>.\nThis exists to fund reparations where the perpetrator does not have sufficient\nresources. However, in cases with numerous victims, there will not be\nsufficient resources to properly accommodate all, resulting in a token payment,\nwhich while it will have a positive effect on the situation, it is not an ideal\nremedy to an atrocity at the level of international crime.<\/p>\n\n\n\n

In a situation with an economy to support the financial aspect of\nindividual reparations, the effectivity would be increased. In reality, most\nnations do not have resources of this magnitude readily available, leaving the\nsymbolic reparations the next best alternative.<\/p>\n\n\n\n

Collective Reparations<\/strong><\/p>\n\n\n\n

Often\nalongside individual reparations, we see the existence of collective\nreparations. While it is possible for either to exist individually, it is more\ncommon to see an amalgam of both. To remedy international crime, it is more\neffective to have the existence of both.<\/p>\n\n\n\n

\u2018Collective\nreparations focus on remedying the harm of communities as a whole, bypassing\nissues of funding, efficiency and the creation of a hierarchy.\u2019[24]<\/a> This\nmay be through mechanisms such as; a-warding equal payments to victims,\neducation incentives, public memorials. Collective reparations are effective in\nbenefiting an entire society, attempting to not only reinstate it to its prior\nposition, but also prosper out of a situation of hardship.<\/p>\n\n\n\n

However,\nthis can cause major upset in the context of NI. With the proposition from the\nConsultative Group on the past Northern Ireland of equal payments to all; some\nvictims felt like the lack of differentiation was unfair due to the fact some\nof the victims were also perpetrators of other atrocities, and hence felt it\nwas unjust to be equated to this. <\/p>\n\n\n\n

Public\nmemorials can be effective in providing reparations for international crime.\nThe 9\/11 Memorial in New York had welcomed over 23 million visitors between its\nfirst opening in 2011 and December 2015.[25]<\/a>\nAlthough there has also been incidents of controversy surrounding one of New\nYork\u2019s most popular tourist attractions; the recent addition of a gift shop\nlead to Kurt Horning, whose son Matthew died on 9\/11 describe it as \u2018\u201d\u2026crass commercialism on a literally sacred\nsite,”\u2019 it appears wherever there are public memorials as collective\nreparations, controversy seems to arise.<\/p>\n\n\n\n

The\nEye That Cries memorial was commissioned in Peru in the memory of the victims\nof the atrocities which occurred under the Alberto Fujimori government\n(1990-2000). However, in a situation abstractly like that of NI, many of the\nvictims were also perpetrators of international crimes. This has led to \u2018demands\nfor the removal of the names, and among some sectors, for the demolition of the\nmemorial altogether.\u2019[26]<\/a>\nAgain we see that it is very difficult to enact collective reparations\nsuccessfully, as perpetrators often also benefit from their positive effects.<\/p>\n\n\n\n

Furthermore,\nif we look to the example of the Omagh bomb memorial which was enacted as a\nform of reparation to the community and the families of the victims who suffered\nthe single greatest atrocity of The Troubles, when a real IRA bomb exploded\nkilling 29 plus a set of unborn twins. On a whole this has been welcomed by the\ncommunity, however there are examples of anti-social behaviour surrounding it\nalso. The \u2018Uprooting trees and plants, overturning benches and throwing\nflowerpots into the grounds of the county hall,\u2019[27]<\/a> has\nbeen reported in the local press with regards to an incident with the memorial.\n Also, very often public memorials are viewed\nas not enough by the family of those killed. Kevin Skelton whose wife was\nkilled in the Omagh bomb atrocity said \u2018We’re still waiting. If that bomb had\nhappened on the mainland[28]<\/a>\nthere would be people in jail. \u00b4[29]<\/a> Evidently,\npublic memorials are not always viewed enough to remedy international crime. <\/p>\n\n\n\n

Other\nforms of collective reparations may be education incentives. While integrated\neducation has roots in NI tracing back to 1921, The Belfast agreement included\na provision for the \u2018Promotion of a culture of tolerance at every level of\nsociety, including initiatives to facilitate and encourage integrated education\nand mixed housing.\u2019[30]<\/a>  Intergraded education has been found to have\n\u2018incredibly positive influence in young people\u2019s development of respectful and\nsocially conscious attitudes and behaviours\u2019[31]<\/a>.\nWhile it will benefit the children of those convicted of international crimes,\nwe should never punish children for the acts of their parents. Education\nincentives have therefore been an effective form of collective reparations in\nremedying international crime; not only is there a benefit of education, but it\nalso improves relationships and a culture of understanding and tolerance from a\nyoung age.  <\/p>\n\n\n\n

Civil Litigation: Reparations Within The Courts<\/strong><\/p>\n\n\n\n

Evidently,\nindividual and collective reparations are not always entirely effective in\nremedying international crime. Within NI, civil litigation has been used as a\nfurther means of achieving the truth and holding non-state actors accountable\nfor their wrong-doings, and by \u2018individuals to seek remedy for a breach of\ntheir rights or for harm they have suffered.\u2019[32]<\/a>;\neffectively to remedy international crime. In criminal proceedings, a case must\nbe proved \u2018beyond reasonable doubt\u2019, where as in civil proceedings it is only\nnecessary to be proved \u2018more likely than not.\u2019 Perhaps the highest profile case\nwas that taken by the victims of the 1998 Omagh bomb against members of the\nReal IRA, who were unsuccessful in a criminal court but successful in this\nforum. This may be something which the rest of the world could draw influence\nfrom as an effective way of remedying international crime when prosecution is\nnot available as a means of truth recovery.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

In\nsummation; the situation in NI still requires attention. Many of the victims\nare dissatisfied, as is seen through the Legacy issues at Stormont recently. In\nmany situations victims still feel the hurt of the atrocities committed against\nthem, and have rejected the proposition of reparations. This highlights the\ndifficult nature of reparations, and the many complex issues which surround\nensuing all victims feel they have had their needs adequately met.<\/p>\n\n\n\n

The\nsituation in NI does not follow a formal reparations programme, however through\ndifferent mechanisms, such as civil litigation almost all frontiers are\ncovered. The most effective way to award reparations for international crime is\nto be pragmatic and adapt to the current situation, rather than implementing a\nuniform individual and collective reparations scheme worldwide. <\/p>\n\n\n\n

In\nthe case of international crime, the most effective remedy is prevention. This\nmeans that the idea of reparations as deterrents is very important in\ndiscouraging future committing of international crime. Mechanisms such as\nimproving relations through collective reparations are highly important in the\nNorthern Irish example, and too with all situations, as if we live in a society\nwith a culture of tolerance and understanding, it is less likely that we will\nsee instances of these heinous acts.
<\/p>\n\n\n\n

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Newbery S, ‘Ireland V UK: The\nEuropean Court Of Human Rights And International Relations 1971-1978’ (2017) 3\nEuropean Human Rights Law Review<\/p>\n\n\n\n

Sharrock\nD, ‘Thugs Ruin Memorial Garden for Omagh Dead’ The Telegraph<\/em> (2001).<\/p>\n\n\n\n

Shepherd Johnson L and\nMurnaghan S, ‘The Practice Of Integrated Education In Northern Ireland: The\nTeachers\u2019 Perspective’ (Incore: International Conflict Research Institute 2001)<\/p>\n\n\n\n

Vines P, ‘Apologies And Civil\nLiability In The UK: A View From Elsewhere’ (2008) 12 Edinburgh Law Review\n<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>\naccessed 30 April 2017
<\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> Samantha Newbery, ‘Ireland V UK: The\nEuropean Court Of Human Rights And International Relations 1971-1978’ (2017) 3\nEuropean Human Rights Law Review.<\/p>\n\n\n\n

[2]<\/a> Ed Moloney, A Secret History of the IRA\n(London: Allen Lane, 2002), p.66.<\/p>\n\n\n\n

[3]<\/a> ‘The Belfast Agreement – GOV.UK’ (Gov.uk,\n1998) <https:\/\/www.gov.uk\/government\/publications\/the-belfast-agreement>\naccessed 26 February 2018.<\/p>\n\n\n\n

[4]<\/a> The Universal Declaration of Human Rights 1948, Article\n8.<\/p>\n\n\n\n

[5]<\/a> Basic Principles and Guidelines on the\nRight to a Remedy and Reparation for Victims of Gross Violations of\nInternational Human Rights Law and Serious Violations of International\nHumanitarian Law 2006.<\/p>\n\n\n\n

[6]<\/a> Goibur\u00fa et al v Paraguay <\/em>[2006]\nSerie C No. 153, Inter-American Court of Human Rights (IACrtHR), [143].<\/p>\n\n\n\n

[7]<\/a> Prue Vines, ‘Apologies and Civil Liability in the UK: A\nView from Elsewhere’ (2008) 12 Edinburgh Law Review\n<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>\naccessed 30 April 2017.<\/p>\n\n\n\n

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

[9]<\/a> International Criminal Court, ‘Katanga Case: ICC Trial\nChamber II Awards Victims Individual and Collective Reparations’ (2017).<\/p>\n\n\n\n

[10]<\/a> ibid.<\/p>\n\n\n\n

[11]<\/a> ibid.<\/p>\n\n\n\n

[12]<\/a> Germany v Poland (Case\nconcerning the factory at Chorzow (indemnity)<\/em> [1928] Permanent Court of\nInternational Justice (PCIJ), para. 125.<\/p>\n\n\n\n

[13]<\/a> The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic,\nDrago Josipovic, Dragan Papic and Vladimir Santic <\/em>[2001] international\nCriminal Tribunal for the former Yugoslavia (ICTY), United Nations, para. 90.<\/p>\n\n\n\n

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

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

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

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

[18]<\/a> :\n<\/strong>The Telegraph, ‘It’s Blood Money \u2013 Truly the Wages of\nSin’ (2009)\n<http:\/\/www.telegraph.co.uk\/news\/worldnews\/europe\/ireland\/4412809\/Its-blood-money-truly-the-wages-of-sin.html>\naccessed 30 April 2017.<\/p>\n\n\n\n

[19]<\/a> This difficulty identifying victims and\nawarding reparations to date can be seen clearly through the current legacy\nissues in Stormont. A consensus of public opinion shows that there is a desire\nto expedite this process due to the rising age of many of those who may wish to\ncome forward, however those in power have not been able to come to an agreement\non this. The current Stormont deadlock is adding to and highlighting the core\nissue being discussed here; in the NI community, many individuals find it\ndifficult to accept victims and to respect both sides of history, with those in\npower finding it difficult to agree on where to fall on contentious issues; and\nin the context of NI, to identify someone as a victim may be very\ncontroversial, depending on that individual\u2019s past, hence adding to the\ndifficulty of victim identification.<\/p>\n\n\n\n

[20]<\/a> Jenny Leigh Mc Williams,\nJordan\nHawthorne, ‘Individual and Collective Reparations’\n<https:\/\/blogs.qub.ac.uk\/remedy\/reparation-issues\/individual-and-collective-reparations\/>\naccessed 2 May 2017.<\/p>\n\n\n\n

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

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

[23]<\/a> ‘Trust Fund For Victims’ (Icc-cpi.int,\n2018) <https:\/\/www.icc-cpi.int\/tfv> accessed 26 February 2018.<\/p>\n\n\n\n

[24]<\/a> ibid. <\/p>\n\n\n\n

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

[26]<\/a> Katherine Hite, ‘\u2018The Eye That Cries\u2019: The Politics of\nRepresenting Victims in Contemporary Peru’ (2007) Vol. 5 A Journal on Social\nHistory and Literature in Latin America.<\/p>\n\n\n\n

[27]<\/a> David Sharrock, ‘Thugs Ruin Memorial Garden for Omagh\nDead’ The Telegraph<\/em> (2001).<\/p>\n\n\n\n

[28]<\/a> \u2018Mainland\u2019 is a colloquial term used within\nNorthern Ireland, as a reference to Great Britain.<\/p>\n\n\n\n

[29]<\/a> Tracy McVeigh, ‘Ten Years On, and Omagh Is Far from Over\nfor Us’ The Guardian<\/em> (2008).<\/p>\n\n\n\n

[30]<\/a> The Belfast Agreement 1998.<\/p>\n\n\n\n

[31]<\/a> Laurie Shepherd Johnson and Sheelagh Murnaghan, ‘The\nPractice of Integrated Education in Northern Ireland: The Teachers\u2019\nPerspective’ (Incore: International Conflict Research Institute 2001).<\/p>\n\n\n\n

[32]<\/a> ‘Amnesties, Prosecutions and Civil Litigation’\n<https:\/\/blogs.qub.ac.uk\/amnesties\/files\/2014\/02\/Civil-litigation.pdf>\naccessed 1 May 2017.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Sin\u00e9ad 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 \u2018The Troubles\u2019, 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 \u2018victim\u2019 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 \u2018The Troubles\u2019; which \u2018can 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.\u2019[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\u2019s 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\u2019s, 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 \u2018The Belfast Agreement, also known as the Good Friday Agreement, was reached in multi-party negotiations and signed on 10 April 1998.\u2019[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, \u2018Everyone 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.\u2019[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 \u2018of 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.\u2019[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 \u2018Measures aimed at removing the effects of violations\u2019[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 \u2018a 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\u2019[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 \u2018341 applicants and found that 297 of them presented sufficient evidence to be considered victims.\u2019[9] These 297 identified victims were then awarded with \u2018symbolic compensation of USD 250 per victim as well as collective reparations in the form of support for housing, support for income\u2011generating activities, education aid and psychological support\u2019[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 \u2018regardless of whether the perpetrator of the violation is identified\u2019[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 \u2018wipe 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.\u2019[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 Kupre\u0161ki\u0107, Mirjan Kupre\u0161ki\u0107, Vlatko Kupre\u0161ki\u0107, Drago Josipovi\u0107, and Vladimir \u0160anti\u0107, 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 Ahmi\u0107i in Bosnia and Herzegovina, the Trial Chamber observed, \u2018Where the number of victims is large, each and every victim need not be identified in the indictment.\u2019[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 \u2018catch all\u2019; 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 \u2018Victim\u2019 in NI Identifying and restoring victims to their rightful place in society through reparations also meets another stumbling block when transported to NI, since \u2018The scars of the Troubles have formed a moral barrier preventing people from accepting the equality of innocent victims and victim perpetrators.\u2019[15] The label \u2018victim\u2019 is highly contentious, as many of the alleged \u2018victims\u2019 were also perpetrators of equally heinous crimes as those which were committed against them. \u2018One 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.\u2019[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\u2019s shop in 1993, described the \u2018one-off ex-gratia recognition payment of \u00a312,000\u2019[17] suggested by Consultative Group on the past Northern Ireland for the nearest relative of victims of the troubles as; \u2018It\u2019s blood money. It truly is the wages of sin.  To accept it would be to besmirch my parents\u2019 memory, to acknowledge that they are just the same as the scum that murdered them\u2019[18] The effectiveness, therefore, of individual and collective reparations in remedying the international crimes committed in NI is queried \u2013 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…<\/p>\n","protected":false},"author":415,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[91],"tags":[],"class_list":["post-1000","post","type-post","status-publish","format-standard","hentry","category-issue-six"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/pa93oW-g8","_links":{"self":[{"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/posts\/1000","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/users\/415"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/comments?post=1000"}],"version-history":[{"count":1,"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/posts\/1000\/revisions"}],"predecessor-version":[{"id":1001,"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/posts\/1000\/revisions\/1001"}],"wp:attachment":[{"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/media?parent=1000"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/categories?post=1000"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.qub.ac.uk\/studentlawjournal\/wp-json\/wp\/v2\/tags?post=1000"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}