It seems that despite the breakdown in the all-party talks last year, there is new impetuous to tackle the outstanding contentious issues (see Brian Rowan’s piece). The Haass-O’Sullivan proposals from last year seem to be starting point of this year’s discussions. There were some progressive proposals in last year’s talks, including a truth recovery process through the Independent Commission for Information Retrieval and an independent Historical Investigations Unit to continue historical investigations into unsolved deaths and serious injuries. For victims the proposals noted at the outset that support for victims is the ‘first requirement’ in comprehensively dealing with the past, with two tasks of providing a range of high-quality services and promoting understanding of such services, with the Victims and Survivors Service to continue its work in this area. While these services concentrate on assisting those physically harmed, a new Mental Trauma Service was suggested to meet the needs of those who continue to suffer from psychological harm.
More substantive measures to deal with the past in the Haass-O’Sullivan proposals included a historical archive and those responsible would acknowledge the wrongfulness of their actions. This would be more than an apology as an ‘unqualified acceptance of responsibility, express an understanding of the human consequences for individuals and society, and include a sincere expression of remorse for pain and injury caused.’ Nevertheless, such proposals avoided contention by omitting reference to reparations or ‘rights’ for victims. Really these proposals are a rehash of the Eames/Bradley report in 2009 and the Healing through Remembering report in 2006 in dealing with the past.
The current talks replicate this attention to victims with one of its guiding principles to ‘acknowledge and address the suffering of victims and survivors’ and to be ‘human rights-compliant’. These two principles are not mutually exclusive. But what is the best way to acknowledge and address victims in a human rights compliant way?
A human rights compliant approach
Our frame of reference in dealing with the past has been dominated by Article 2 (the right to life) of the European Convention of Human Rights. This is unsurprising given 13 cases at the European Court of Human Rights in the past thirteen years have found the UK government in violation of its investigative obligations under the Convention. Generally speaking a human rights compliant investigation includes one that is prompt, transparent (allows victim participation), independent and effective at identifying those responsible. The Police Ombudsman Office and the Historical Enquiries Team where created to achieve Article 2 compliance.
However these piecemeal measures have been ineffective in addressing the past in Northern Ireland. With cuts in funding to the PSNI and Police Ombudsman, and the closing down of the Historical Enquiries Team, the coroners’ inquests are the only show left in town to deal with the past and allow victims’ some form of process to find the truth. Yet, as with the PSNI Chief Constable warning in September, the coroners’ service was never created to operate as a truth or investigative process, being adversarial and limited procedural rules.
The justice system is under immense strain to provide a present day service, while addressing complex historical violence involving allegations of state collusion. As noted by the Court of Appeal in the Jordan inquest appeal, continuing legacy inquests will be in violation of Article 2, with some not being heard until 2040. As stated by the Court ‘it seems inevitable that the requirement of reasonable expedition will continue to be breached unless there is a new approach.’
The Haass-O’Sullivan proposals do reflect an Article 2 compliant approach. However, leaving the coroners’ service outside of a comprehensive approach to deal with the past, to continue its legacy inquests will not overcome the current impasse. Northern Ireland’s most senior judges in the Court of Appeal in the Jordan case believe that the legacy inquests can be taken out and dealt within a comprehensive approach. They suggest the on-going Historical Institutional Abuse Inquiry as a possible judge led inquiry which can be Article 2 compliant.
There is a danger in limiting ourselves to Article 2. While over 3,500 people lost their lives during the Troubles/conflict in and about Northern Ireland, tens of thousands more very seriously injured, both physically and mentally, raising issues under Articles 3 and 13 (freedom from ill-treatment and right to remedy). Truth recovery processes and possible criminal trials will not completely satisfy victims, due to insufficient evidence and witnesses.
There is a need for a wider process aimed at acknowledging the past by both governments, paramilitary groups and other actors to recognise the harm caused, apologise, disclose, and remedy victims’ continuing suffering. We should also not forget those victims in the rest of the United Kingdom and the Republic of Ireland, as well as allow access to those who now live further abroad.
What do victims need?
Since February the Commission for Victims and Survivors has held two conferences on dealing with and remedying the past. Both of these conferences highlighted the continuing needs of victims and the necessity for a comprehensive approach to addressing the past. While discussions on dealing with the past have focused around truth and justice, two further important issues have been acknowledgement and reparations. While legal processes may hold some individuals criminally responsible and uncover some facts, victims need more inclusive acknowledgement and remedy of their suffering.
In the conference workshops on acknowledgement and reparations a mature discussion touched on a number of key issues. There was a common sense of a need for acknowledgement of the suffering caused and the context in which violence occurred, as well as long term process to address trans-generational harm.
Participants also noted that it was essential to have the difficult discussion of whether perpetrators should be able to claim reparations. There are a number of legal approaches in distinguishing victimised perpetrators from innocent victims, such as reducing their compensation by 10% or limiting them to just rehabilitation.
More recent proposals of a pension for those severely injured during the Troubles and their carers, have been appropriated by some politicians wanting to ensure that only ‘innocent’ victims can avail of the pension, despite the serious suffering of complex victims and the likelihood that only a handful of them would be eligible. Compensation through a pension or university scholarships could enable victims and their families’ new opportunities, rather than being dependent on piecemeal payments from the Victim and Survivor Service.
Importantly there was some consensus that the Victim and Survivor Service, while it has provided some support to victims, it is insufficient. As a service it is discretionary and subject to budget cuts. Instead reparations are an integral part of human rights law as a right for victims. The UN Special Rapporteur on Truth, Justice and Reparations, Pablo de Greiff has called upon states to adopt dedicated budget lines for reparations to victims, rather than discretionary services or victim funds.
As the UK government retains sovereignty to sign international treaties, such as the European Convention of Human Rights and the UN Convention Against Torture, it is obliged under international law to be responsible for providing resources to domestic implementation of those obligations. A dedicated budget line form the UK Treasury would allow security for victims to avail of their rights to an effective remedy through a new process, rather than being made to feel like beggars waiting for the next budget cut.
Being creative
We are well versed in Article 2 investigations, but the law can only indicate a bare minimum requirement. To really build a Northern Ireland where human rights are central, we need to think creatively of how we can create processes that are victim-orientated in remedying the past. The current piecemeal approach trudges on at over £50 million per year and rising, with little truth and only three convictions from the HET. Victims have been engaging to find a creative solution to remedying their continuing suffering. What is needed is political leadership to ensure the best approach to remedying the past, rather than the bare minimum.
