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.
Experience in other countries
These problems over who deserves reparations are not unique to Northern Ireland. Countries like Sierra Leone and South African made no distinction between victims and ex-combatants when it came to reparations, providing redress on the basis of suffering or those who testified before the Truth and Reconciliation Commission. In Peru, where the non-state armed group the Shining Path was found responsible for 60% of murders and disappearances, the reparation law excludes any one convicted as a member of it from claiming reparations. Yet, it excludes many individuals who were wrongly convicted of membership or offences committed by the Shining Path, but it still allows those who were never convicted to claim reparations. In addition, state forces that committed numerous atrocities were not barred from claiming reparations. Moreover, for those members of the Shining Path who were convicted they could still benefit from collective reparations. Nevertheless, the screening for members of the Shining Path delayed the delivery of reparations to civilian victims for years.
In Spain its reparation law for victims affected by terrorism, provides compensation to those killed as well a pension of a minimum of €1597.53 per month or lump sum. A roll of honour of those killed is also publicised, and scholarships available for children. The legislation explicitly excludes members of terrorist organisations or those who were committing criminal offences when injured or killed. The Israeli compensation scheme for victims’ injured by terrorism includes a monthly pension, state-funded medical care, and rehabilitation to help victims develop new skills or study in a new career, all of which are non-means tested. However it excludes members of terrorist groups from claiming under it.
Both Peru and Spain have been subject to reparation claims at the Inter-American and European Courts of Human Rights. Each government has been found responsible for violating the rights of members of terrorist groups, such as the Shining Path and ETA, and ordered to provide reparations to the claimant. In Peru a series of cases involved government forces extra-judicially killing suspects or prisoners of the Shining Path. In the Miguel Castro Castro v Peru case, 41 people were killed and 175 injured during a raid on a prison that was rioting by government forces. The Inter-American Court ordered the Peruvian government to pay $60,000 to those killed, provide rehabilitation and include the names of the victims in the national memorial, as well as reparations for those seriously injured.
In Spain the European Court of Human Rights order the Spanish government to pay €30,000 to the claimant in the Del Río Prada case, a convicted member of ETA, for unlawfully detaining her. Both the Peruvian and Spanish governments argued that these members of terrorist groups were not victims, but responsible for victimising others. The human rights courts rejected these arguments on the grounds that the state has obligations under international human rights treaties to uphold, no matter the background of the individual.
In contrast to date only one case from Northern Ireland at the European Court of Human Rights has touched on this issue of were members of terrorist groups deserve reparations. In the McCann and others v UK involving the shooting of three members of the IRA in Gibraltar, the European Court held that while the UK government had violated their right to life, by using unlawful force, it rejected the claims for compensation on the grounds that ‘having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award.’ The McCann case can be perhaps distinguished from the Peruvian and Spanish cases on the ground that the three IRA members were in the process of carrying out a terrorist act, whereas members of the Shining Path and ETA were under the detention of the governments.
Reparations for human beings?
The challenge around victim identity goes to heart of competing narratives of the past in Northern Ireland and (il)legitimacy of violence. What is important with this pension for seriously injured victims is that these individuals as they get older their health is failing, they desperately need the financial security and acknowledgement that they are human beings deserving of redress. To effectively remedy their harm it will require substantive reparations made, beyond just a month pension of a few hundred pounds, but lump sum payments. The UN Special Rapporteur on Reparations has often stated that compensation is not enough by itself, but needs to be complemented by collective measures, such as memorials, days of remembrance, and rehabilitation (psychological, physical and educational). The purpose of these collective measures along with compensation is to public acknowledge the suffering of victims and to alleviate their different forms of suffering.
Financial resources should not dictate redress. Poorer countries than Northern Ireland have developed extensive reparations programmes for victims to redress the past. Argentina paid out $220,000 to each individual who was disappeared or killed. Even poor West African states such as Sierra Leone and the Ivory Coast have adopted reparation programmes for victims, in particular for those seriously injured, killed, or suffered from sexual violence. The question is do the political parties in Northern Ireland want to redress the injustice of the past and provide reparations to those seriously injured or not? If so there are ways and means to address the issue of ex-combatants eligibility for the pension.