We are delighted to welcome this guest post by Dr Luke Moffett, QUB School of Law. Luke can be reached at l.moffett@qub.ac.uk.
Victims who have been seriously injured during the Troubles/conflict in and around Northern Ireland have often been forgotten when dealing with the past. Most initiatives to address the past have focused on obtaining truth and justice for those killed or disappeared. Yet this also neglects the important component of reparations, which is treated in international law as vital in alleviating victims’ suffering.
However, this is changing with the Stormont House Agreement providing an ambiguous clause (§27) on ‘[f]urther work will be undertaken to seek an acceptable way forward on the proposal for a pension for severely physically injured victims in Northern Ireland.’ Progress is being made with Brenda Hale MLA (DUP) sponsoring a private members bill through the Northern Ireland Assembly on a pension for those victims seriously injured during the Troubles. There is value in taken this opportunity to alleviate victims’ harm by calling it a reparations law. The reasons for doing this is that reparations publicly acknowledge victims’ suffering and provide appropriate remedies to ease their harm. Reparations express powerful psychological and symbolic messages that victims do not deserve to suffer such harm and society is trying to ease their burden by recognising their suffering and providing them with redress.
This is not the first time reparations have been suggested in dealing with the past in Northern Ireland. The Consultative Group on the Past (Eames-Bradley Report) recommended a £12,000 recognition payment for those killed, to acknowledge each family’s loss. However, this left out those who were seriously injured. The proposal was met with protests that it would allow members of paramilitary groups to obtain money from the state. This contention stems from who is defined as a victim and deserves reparations from the state. This piece seeks to offer legal options in terms of definitions of eligible victims to work around this difficult issue, as well as looking at how other countries have dealt with this problem.
Definitions on eligibility
There are a number of ways of defining who is a victim and is eligible for reparations. The Victims and Survivors Order (NI) 2006 defines victims and survivors broadly as:
a) someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident;
(b) someone who provides a substantial amount of care on a regular basis for an individual mentioned in paragraph (a); or
(c)someone who has been bereaved as a result of or in consequence of a conflict-related incident.
This definition is only for the purposes of the Commission for Victims and Survivors, nothing else. It does not provide a definition for those eligible for a pension or reparations. Such a large number of victims under 2006 Order would be unworkable. Reparations generally concentrate on those who are vulnerable and continue to suffer on a daily basis. This is why the pension for those seriously injured is vital, many of these victims have not been able to build up a pension, retrain for other work, and left dependent on state welfare, which is increasingly being cut. Instead reparations offer financial security to these victims and provide a very powerful symbolic message that they did not deserve to suffer such harm and society is going to look after them in their old age.
There are four possible ways to define eligibility: inclusive; unlawful harm; serious criminal convictions/scheduled offences; and qualified. With the first of these, WAVE and CVSNI suggest an inclusive approach as:
‘a) The claimant suffered physical injury(s) as a result of Troubles related incident(s);
b) the injury(s) has resulted in disablement.’
This inclusive approach reflects that anyone who suffered serious violations should have access to a remedy, compliant with the non-discrimination principle in human rights law, no matter their background. However this does not tackle the issue of ex-combatants who were responsible for victimising others, but ended up themselves suffering serious injuries. There are perhaps other ways of crafting a legal definition to address these individuals.
The second option of unlawful suffering is to define eligibility as:
‘a) The claimant suffered physical injury(s) as a result of Troubles related incident(s), which was unlawfully caused by another person or organisation;
b) the injury(s) has resulted in disablement.’
This would allow a broad category of individuals to be eligible for the pension, but would implicitly exclude those who injured themselves (such as bomb-makers) or were lawfully shot by the security forces. This is compliant with the judgment in Aidan McKeever v Ministry of Defence, where the claimant (an unarmed getaway driver for the IRA) was shot and injured (four other IRA members were killed) by the army in Clonoe church car park in February 1992. The High Court found the army’s use of force to be an unlawful and thus awarded the claimant £75,000. Accordingly this approach reflects a basic tenet of the rule of law and human rights law that everyone who suffers unlawful intentional harm should have access to a remedy.
The third option is an explicit exclusion of convicted ex-combatants as:
‘a) The claimant suffered physical injury(s) as a result of Troubles related incident(s);
b) the injury(s) has resulted in disablement;
c) this excludes any person who has been convicted for a serious criminal conviction or scheduled offence.’
The definition of serious criminal conviction would follow that used in the Civil Service (Special Advisers) Act (Northern Ireland) 2013 of an imprisonment of five years or more is ordered, which would include most scheduled offences, such as membership of a proscribed organisation. This is consistent with the Rehabilitation of Offenders (NI) Order 1978, where those convicted of offences of imprisonments ordered over five years or life cannot have their sentence rehabilitated or their conviction spent. However the difficulty with this exclusion is that not every ex-combatant was convicted. Moreover, the Criminal Case Review Commission, which examines wrongful convictions, has over 300 appeals most of which are overturning convictions based on improperly obtained confessions.
The fourth option is a qualified definition of:
‘a) The claimant suffered physical injury(s) as a result of Troubles related incident(s);
b) the injury(s) has resulted in disablement;
c) any person convicted for a serious criminal conviction or scheduled offence their eligibility will be dealt with through the review panel/their amount will be determined through the tariff system.’
This would allow ex-combatants to be distinguished from civilians, as responsible actors that were involved in causing suffering to others, but given the seriousness of their individual harm caused by others deserve some form of redress. The law can be complex to address the past in Northern Ireland, which was not always black and white.
Most viable models
As suggested here, there are four possible models inclusion, review panel, private trust fund and tariff system. The two most viable that take into account both victimisation and responsibility of victimisers seems to be the review panel and the tariff system. Both the review panel and the tariff system would work best with a qualified definition, allowing those excluded or separated to be given some form of redress. For instance, the review panel could take into account an ex-combatant’s role in peace building, such as cooperation in the Disappeared Commission (ICLVR) or with the future Independent Commission on Information Retrieval. The review panel could also be a means of avoiding costly litigation, by providing individuals who are excluded to appeal the decision on whether or not they qualify. The tariff system could be similar to the Criminal Injury Compensation Scheme, determining the appropriate amount of a pension based on the individual’s convictions, gravity of the offences, and time since release.
In Part II of this post, to be published tomorrow, I will consider the experience in other countries.