Reparations in Northern Ireland – A duty to victims? - Transitional ...

Reparations in Northern Ireland – A duty to victims?
Patricia MacBride
Commissioner for Victims and Survivors
16 November 2011
Transitional Justice Institute, University of Ulster

The transitional justice landscape in the north of Ireland is a constantly changing and evolving map.
Yet through all of the initiatives, programmes, reforms and restructuring we have shied away from
mainstreaming the concept of reparations.
To many people in the community, reparations are payments made by the losing side to victims and
survivors following war. That creates difficulties. In our context, some contend that the community
was at war, some characterise it as a civil conflict, and the euphemism of “the troubles” takes us no
further along the road of agreement on managing transition after 30 years of conflict.
It is perhaps the case that the term reparations, which is now so enshrined in the lexicon of
transitional justice policy and practice, is something our broader society thinks is not right for our
circumstances. In the majority of international experiences, implementation of reparations placed a
duty on the state to address the needs of victims and survivors. In accepting such measures are
needed there is the potential to place an unfair or undue burden on the state, and indeed to hold
the state wholly accountable for all human rights violations that took place during the conflict.
In respect of linking initiatives, it could be viewed that prosecutions are concerned with perpetrators
of wrong-doing, truth-seeking initiatives and institutional reforms concern wider society, reparations
are and primarily for the benefit of victims. To an extent, these areas are intertwined: the question
is have we, in dealing with victims and survivors of our past, ensured that the co-dependency
between initiatives is managed?
I will return to these areas later, but firstly I want to set out what is meant by reparations and go on
to look, through a victims lens, what measures have been put in place in a northern Ireland context
that could be said to meet that definition.
United Nations General Assembly resolution 60/147 sets out the categorisation of reparations
measures as follows 1 :
Restitution refers to measures which “restore the victim to the original situation before the
gross violations of international human rights law and serious violations of international
humanitarian law occurred,” for example, restoration of liberty, enjoyment of human rights,
identity, family life and citizenship, return to one’s place of residence, restoration of
employment and return of property
Compensation “should be provided for any economically assessable damage, as appropriate
and proportional to the gravity of the violation and the circumstances of each case, resulting
from gross violations of international human rights law and serious violations of
international humanitarian law,” such as lost opportunities, loss of earnings and moral
damage
Rehabilitation “should include medical and psychological care as well as legal and social
services.”
Satisfaction is a broad category of measures, ranging from those aiming at a cessation of
violations, to truth-seeking, the search for the disappeared, the recovery and reburial of
remains, public apologies, judicial and administrative sanctions, commemoration and
memorialization, and human rights training.
Guarantees of non-repetition is another broad category which includes institutional reforms
tending towards civilian control of military and security forces, strengthening judicial
1 See General Assembly resolution 60/147, annex, paras. 19–23.
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independence, the protection of human rights workers, human rights training, the
promotion of international human rights standards in public service, law enforcement, the
media, industry and psychological and social services
The United Nations has developed a suite of guides –the UN Rule of Law Tools for Post-Conflict
States – which examine initiatives for post-conflict society in areas such as truth commissions,
reparations, reforms of existing structures etc. At the heart of this advice and guidance is that each
process in a conflict transforming society needs to be specific and tailored to the needs of that
community; they are not prescriptive guides. The UN Secretary General has said: “we must learn…
to eschew one-size-fits-all formulas and the importation of foreign models. Although the lessons of
past transitional justice efforts help inform the design of future ones, the past can only serve as a
guideline. Pre-packaged solutions are ill-advised. Instead, experiences from other places should
simply be used as a starting point for local debate and decisions.” In developing and delivering
initiatives around the conflict in the north of Ireland, we need to be particularly mindful that we take
from this learning that which is positive and applicable and that we can reach agreement on in a
society which continues to be divided
What is a Victim?
In terms of entitlement to reparations, we need to examine what we mean by victims. The
legislation that gives me the statutory duties and powers to act as Commissioner for Victims and
Survivors sets out the definition as follows 2 :
(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.
(2) Without prejudice to the generality of paragraph (1), an individual may be psychologically injured
as a result of or in consequence of—
(a) witnessing a conflict-related incident or the consequences of such an incident; or
(b) providing medical or other emergency assistance to an individual in connection with a conflictrelated
incident.”
The International Centre for Transitional Justice further defines a victim as:
“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… the immediate family or dependants of the direct
victim and persons who have suffered harm in intervening to assist victims in distress or to prevent
victimization.” 3
The fundamental difference in these two definitions would appear to be that the second also
includes those who have suffered harm through acts of omission, as well as the concept of
collectivity.
2 Victims and Survivors (Northern Ireland) Order 2006
3 Magarrell, L (2007). Reparations in Theory and Practice. Reparative Justice Series, ICTJ.
2

The definition of a victim is something which continues to cause friction in our society and we often
hear political leaders talk about victims and innocent victims and put forth an opinion that
perpetrators are separate. But the point about the conflict in and about northern Ireland is that
there were no winners and losers – the state did not win, nor did those who opposed the state and
therefore we have no victor. In the absence of this declaration, we have an uneasy situation where
we must accept that none of the actors in the conflict can walk away with a clear conscience and
clean hands – wrong was perpetrated on all sides.
The success, I believe, in the definition contained in the Commission’s empowering legislation is that
it fails to judge the actions of those who have died and to categorise them as victim or perpetrator
but focuses its attention on the living – those who have been bereaved, injured or are carers. As
such, it is pragmatic in that it recognises the need arising out of grief, regardless of the
circumstances of the bereavement.
Reparations – How far have we gone?
In the context of the north of Ireland, a number of initiatives have been delivered that might be
interpreted as going some way towards meeting society’s duty of reparations to victims and
survivors but further examination of the merits of some of those initiatives is warranted.
1. Restitution
In terms of restoring the victim to the original situation before the violation occurred, it
could be argued that the following sample initiatives have provided a measure of
restitution.
The establishment of the Human Rights Commission sought to place a human rights
agenda at the heart of society where previously the imperative had been one of
survival and self-preservation.
In terms of identity, government policy which has promoted the growth of Ulster
Scots and the Irish language have helped to build confidence of communities
The right to assert citizenship as being either Irish or British which is enshrined in
Good Friday Agreement has further addressed issues around identity
In respect of the return of property, the ending of Operation Banner, for example,
and the return of previously vested lands by the MOD to their owners or to
community use have created economic and social benefits
None of these examples, however, are victim-centred but rather have an impact on the
wider community, albeit with victims forming part of that wider community. There is no one
identity for victims, no one area of land that victims were forced out of. We must ask if
there are further initiatives therefore that need to be taken in terms of restitution that is
specific to victims.
2. Compensation
Material compensation has received more attention than any other area of reparations.
The Criminal Injuries Compensation Scheme provided a measure of financial restitution to
some but not all victims and survivors. During the course of the conflict, the operation of
the compensation system evolved and was amended. In the early days, compensation
awards for those bereaved were decided through the courts – sometimes on the steps of
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the courts - and were therefore at the discretion of a judge or subject to negotiation by legal
representatives. This created a system up until 1978 where awards varied widely and there
was no element of the payment which acknowledged the pain and loss of bereavement.
The Criminal Injuries (Compensation) Order of 1988 introduced a provision for a
bereavement award. In 2002 a tariff scheme was introduced which set a scale for damages
to be paid and did also include acknowledgement of loss. The scale was revised in 2009 and
applicants had the right of appeal to an appeals panel who had the discretion to amend
awards. This situation continues to the present day. At no stage were families of
paramilitaries killed during the conflict eligible to receive compensation. Furthermore,
families of former paramilitary prisoners, who had completed their sentences and were
killed, (not whilst engaging in illegal activities) were not eligible to receive compensation
payments.
Compensation for those who were seriously injured was calculated in terms of loss of
earnings and life expectancy. It should have ensured these victims and survivors had a
decent quality of life for the rest of their lives, but capping the award at 16 years loss of
earnings meant that for those injured in the 1970’s, their compensation was woefully
inadequate.
All of this has contributed to great inequity between victims and survivors in respect of the
compensation they were awarded.
A number of initiatives have provided ex gratia payments to victims and survivors. The
Remembrance Commission which was established by the Irish government and operated
between 2003 and 2008 distributed almost €3.9 million to individual victims and survivors
and in excess of €2 million to fund support services to victims resident in the state.
The Northern Ireland Memorial fund was established in 2001 and has provided financial
assistance to victims since that time. The Irish Government’s Remembrance Commission
committed initial funding of €2 million to the Fund. Because of how the Memorial Fund
records its information, it is not possible to tell how many individual victims and survivors
have been assisted by it. Applicants could apply for assistance year on year so it is possible
some people have received assistance under a number of schemes over a number of years.
Special payments of almost £70 million were made to former full and part-time members of
the Ulster Defence Regiment when that regiment was disbanded. In the current year a fund
of £20 million has been made available to provide gratuity payments to former members of
the RUC Reserve. In 2000 the RUC bereaved and seriously injured fund was given £9 million
and a further £2 million was disbursed to widows of RUC officers killed prior to 1982 who
had been financially disadvantaged. This £9 million was disbursed through the Police Fund,
which continues to receive an annual budget in the region of £2 million from the
Department of Justice.
Name of organisation Total Fund available Number of Average payment per
Beneficiaries
victim/survivor
Remembrance €1,637,920 309 €5,300
4

Commission (Irish
Government 2003-
2008)
Acknowledgement
Payments
Remembrance
Commission (Irish
Government 2003-
2008)
Economic Hardship
Payments
(Spouse/dependent
children)
Remembrance
Commission (Irish
Government 2003-
2008)
One-off payment to
those rendered
permanently incapable
of working
Remembrance
Commission (Irish
Government 2003-
2008)
Treatment of injuries
Remembrance
Commission (Irish
Government 2003-
2008)
Exceptional Medical
Payments
UDR/Royal Irish
Regiment Special
Payments (Part time
Reserve)
€461,250 34 €13,566
€646,000 48 €13,458
€69,213 28 €2,472
€1,042,510 77 €13,539
£14.28m 1020 4 £14,000
UDR/RIR Special
Payments – Full Time
Service IN ADDITION to
redundancy and
Pension
£55.44m 5 1980 6 £28,000
RUC Hearing Loss
Claim Fund
£11,348,466 7 515 8 £22,035
NI Police Fund £1.85m 9 747 10 £2,477
4
Figure from UDR/RIR Aftercare Service Annual Report 2008-2009
5
A total fund of £250m was made available to the UDR/RIR in respect of the redundancy, pension and special
payments above when the regiment was disbanded. Only ex gratia payments are noted here.
6
As at note 1
7
Figures correct as at 30/09/2008. At that date 1,236 cases were still to be assessed
8
PSNI FOI Request response F-2008-04813
9
Figures from NI Police Fund Website for the 2010/2011 year only
5

(An Annual budget of
£1.8m)
RUC Reserve Gratuity
Payment Scheme
RUC Pre-1982 Widows
package November
2000
RUC
bereaved/seriously
injured fund November
2000
NI Memorial Fund
2010-2011
3. Rehabilitation
£20m 6000 11 £3,333
£2m 80 £25,000
£9m 12 TBC TBC 13
£1,515,370 14 2,708 £560
The rehabilitation of victims and survivors is defined as the provision of medical and
psychological care and the provision of legal and social services, and so one could contend that a
number of government initiatives have gone some way to meeting those needs
In 2009 the Stormont Executive endorsed a Victims and Survivors 10 year strategy
built around the three strands of dealing with past, meeting present need and
building for future
The establishment of the Commission for Victims and Survivors in 2009 set in place
statutory provision for reviewing law, practice and services relating to victims and
the need to ensure victims voices were heard at the heart of government. The
Commission’s focus in the current year is the preparation of a Comprehensive Needs
Assessment which will report in March 2012 and quantify need around areas such as
physical and mental health and well-being, social support, truth, justice and
acknowledgement and personal development
In the current funding period for government, £36 million has been allocated to
victims and survivors and provides a range of support including social support,
training and personal development, advocacy support, funding to meet health and
well-being needs (primarily listening ear and counselling services), befriending
4. Satisfaction
Providing satisfaction to victims and survivors may include initiatives and processes such as truthseeking,
the search for the disappeared, public apologies, judicial and administrative sanctions and
commemoration and memorialisation..
10
This is the total number of grants paid in 2010/2011 and it is possible applicants received more than one
grant
11
Exact number not know as yet, this is based on press reports – numbers have been requested from DoJ
12
A total of £11m announced of which £2m was to address inequalities in pensions to widows bereaved prior
to 1982
13
This provided funding to the NI Police Fund for a number of years, exact breakdown to be confirmed
14
NIMF Financial Assistance, non-means tested schemes for one year only
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It is in this area of judicial and administrative sanctions that we have potential to see the greatest
overlap in terms of reparations initiatives designed through a victim perspective and the area of
legal remedies that has impact across wider society.
The Independent Commission for Location of Victims’ Remains was established in1999 by
Treaty between the British and Irish Governments. The purpose of the Commission is to
obtain information, in strict confidence, which may lead to the location of the remains of
"the Disappeared" (those killed and buried in secret by proscribed organisations prior to 10
April 1998 as a result of the Northern Ireland conflict). Although concerned with the deaths
of only 16 people – a fraction of 1% of those who died – the Commission is significant for a
number of reasons. Firstly for the nine families whose loved-ones have been returned to
them for burial, it is unlikely that this would have happened without the initiative. Secondly,
the fact that the Irish and British Governments acting jointly initiated and funded the
Commission gave it international standing . Thirdly, it represented the first time that former
combatants – in this case former members of the IRA – engaged voluntarily with an agency
of the state in respect of its wrongdoings.
In recent times we have seen an increase in the number of public apologies delivered by the
state where it has been responsible for conflict-related deaths. The most prominent of
these was following the publication of the Saville report into Bloody Sunday. The apology
delivered by Prime Minister David Cameron was significant not only in its delivery but in the
reaction to that amongst the people of Derry gathered to hear the findings and amongst the
families of those killed and those who were wounded in terms of their positive welcoming of
it. This apology followed a long and protracted public inquiry which clearly established the
facts of that day. Set against that, however, is the more recent apology to the family of Pat
Finucane delivered in parallel to an announcement that a senior judicial figure would review
the papers in the case in private, where such an apology has been cited as hollow by those
campaigning for an inquiry into Mr. Finucane’s killing because it was delivered without the
full facts of the case being made public. One must also consider apologies delivered by
former combatants in the wake of their ceasefires. In the case of Loyalism expressing
“sincere and abject remorse” for its actions and in the case of the IRA who offered “sincere
apologies and condolences” to the bereaved families of non-combatants and
acknowledgeded the grief and pain of the families of combatants. The question remains
whether an apology in the absence of any other truth or justice-seeking initiative is enough.
The subject of commemoration and memorialisation is one that society continues to
struggle with. Collective commemoration of those who lost their lives as a result of the
conflict is challenging because it is tied to the issue of definition of victims and firmly-held
beliefs that there are “innocent” and “guilty” victims. One initiative that has had a measure
of success is the Day of Private Reflection established by Healing Through Remembering
which takes place on 21 June each year and urges society to remember in its own way those
who have suffered as a result of the conflict and had only a limited number of collective
events. The development of the Maze/Long Kesh site is a further example of difficulties
around agreement in this area. Broad agreement between the major political parties that
the site of the former prison should be developed to include a conflict transformation centre
and exhibition space has been reached, but there will continue to be significant discussion
and debate as that project progresses over how the past is interpreted at that site. We are a
long way off from collective commemoration.
5. Guarantees of non-repetition
This final category of reparations includes institutional reforms that seek to increase civilian
control of military and security forces, strengthening judicial independence, the protection
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Conclusion
of human rights. Such guarantees of non-repetition, however, can only ever be implicit in a
sense that it is about creating the political and societal conditions where a return to armed
conflict is difficult or impossible to contemplate or enact. It depends on the confidence of
society and of those in marginalised groups in the new political arrangements and the ability
of those arrangements to protect their human rights, identity, lives and livelihoods and as
such are part of an uneasy peace-building process rather than a fully fledged peaceful
society.
The Patten Commission which examined the Royal Ulster Constabulary and made
recommendations regarding its renaming as the Police Service of Northern Ireland,
its size, make-up, recruitment procedures and operations could be seen ass part of
the institutional reforms that embed a new paradigm in a society in transition.
Likewise the Review of Criminal Justice System consultation process, the
appointment of an Attorney General for Northern Ireland, the establishment of an
independent Judicial Appointments Commission, establishment of Public
Prosecution Service as opposed to a Crown Prosecution Service have changed the
landscape of the justice system and it is proposed that further reform will take place
in respect of the Prison Service to bring it into line with other reforms that have
taken place
The establishment of the Office of Police Ombudsman was an important part in
establishing civilian oversight of policing and embedding a culture of public
accountability. Notwithstanding the current difficulties of that office in respect of
historic cases, reports by the Criminal Justice Inspectorate have judged its work on
contemporary matters to be satisfactory.
The violations that reparations benefits are meant to redress are usually of the sort that is
irreparable. Nothing will restore a victim to their situation before their loss, whether that loss was
as a result of sustaining a physical or psychological injury , or after the loss of a parent, a sibling, a
spouse or a child. No amount of money and no combination of benefits can erase either such
experiences or some of their consequences. This is no excuse for inaction. However, understanding
the inherent limitations of what we can do and communicating those limitations effectively to wider
society and to victims and survivors affects the way they are established and run, and the benefits
that can flow from them.
Whilst we must acknowledge that significant societal changes and a number of victim-centred
initiatives have taken place, we cannot think that the job is done by any means. We therefore still
have a duty to victims to continue the process of reparations, embracing all of the areas of need.
In the north of Ireland, transitional justice as a concept is not widely embraced. The harsh political
reality is that for many advocates and practitioners working with victims and survivors, it is seen as
something rather academic and remote and not practical, supportive or reparative. Politically, those
from the Catholic/Nationalist/Republican community are more predisposed to embrace the
opportunities afforded to reform or repair institutions that did not work and to make restitution to
those who have suffered harm or disadvantage than are their counterparts in the
Protestant/Unionist/Loyalist community. We are doing little to address that perception.
Some transitional justice practice would say that States have a legal duty to acknowledge and
address widespread or systematic human rights violations, in cases where the state caused the
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violations or did not seriously try to prevent them. In the past, reparations were seen as punitive -
something that was paid by the losing side to the victor – and we have not fully done our job as
advocates, academics and practitioners in successfully re-branding the product to make it fit its 21 st
century purpose.
Part of the problem in the north of Ireland is that the state itself was not the only violator of human
rights and yet it seems it is being held more accountable for righting the wrongs inflicted by others
simply because there is no mechanism yet in place that can hold all of the actors to the conflict to
account.
Transitional justice practice is clear on this, though and states that: “The state should... provide
reparations to victims of rebel groups as well as of groups that were not under government control
or acquiescence. This duty can arise either as a matter of law - for failure to guarantee rights...or out
of basic fairness to victims, who should be treated similarly regardless of who the perpetrator is,
since this is out of their control. One of the purposes of reparations is to help facilitate victims’
integration in society, to make them feel that the rest of society cares about what happened to them
by providing some kind of redress. It is also a way to distribute across society the costs of providing
redress for harm. In this way, the state can provide reparations not because it was responsible for
wrongdoing, but because of its obligation to provide for the common good and to assist in
reintegrating victims - without making distinctions as to who committed the crimes.” 15
Until we put in place mechanisms to deal with the legacy of conflict which has a 360 degree
perspective, we cannot fully meet our duty to victims and survivors and to building a new and
inclusive shared society.
15 As at 3
9