By Luke Moffett and Kieran McEvoy
There has been much said about victims in recent months in Northern Ireland, particularly in relation to the Haass negotiations on flags, parades, and dealing with the past. Perhaps the phrase most used is that any process to deal with the past in Northern Ireland has to be ‘victim-centred’. Although the view that the process should be ‘victim-centred’ is laudable, there has been little said as to what this will mean in practice. This blog seeks to outline some points on victim-centred justice to move beyond the rhetoric and political ‘sound bites’ to what a victim-centred process which is compliant with international human rights law might look like.
Before discussing a ‘victim-centred’ approach it is worth mentioning who is a victim. Although defining a ‘victim’ of the conflict or Troubles in Northern Ireland is a contentious issue, there are general principles in soft (non-binding) international human rights law. Principle 8 the UN Basic Principles on Right to Remedy and Reparations is a useful starting point. It defines victims as:
‘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. Where appropriate, and in accordance with domestic law, the term “victim” also includes 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 victimisation.’
Victimisation often goes beyond the family to affect subsequent generations, particularly where the harm suffered has not been addressed. Furthermore, Principle 9 states that:
‘A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.’
Under Principle 10 victims should also be treated with humanity, dignity and respect, and appropriate measures taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families.
This is consistent with Articles 2 and 3 of the European Convention of Human Rights, which protect individual’s right to life and freedom from torture, inhuman and degrading treatment. Articles 2 and 3 on the right to life and freedom from torture and ill-treatment require states to not only prevent such violations, but carry out effective, independent, and prompt investigations to identify those responsible and allow victims to participate in any investigation or criminal proceedings to protect their interests.
Furthermore, a breach of any right under the European Convention can give rise to a right to remedy under Article 13. Under Article 41, the European Court of Human Rights can award compensation to victims who suffered harm as a result of their rights being violated, particularly for serious violations in situations of political violence and conflict.
Violations under these articles could arise where victims and their families suffer further victimisation and harm by the apathy, hostility or denial by government agencies or individuals that inhibit their ability to participate in investigations or to seek a remedy. Accordingly any process established to address the past in Northern Ireland must be alive to the issue that no further harm should come to victims as well as the requirements with to investigations and remedies.
Victim-centred justice refers to the notion that victims should have a central role in transitional justice measures through special procedural and substantive rights. Procedural rights refers to victims’ role in proceedings and mechanisms, whereas substantive rights refer to outcomes or final decisions of any process.
International human rights law and best practices in other transitional justice processes suggest that victims have procedural rights to be consulted and informed on issues which affect their needs, access to proceedings to present their interests, adequate support and assistance, and protection from any further victimisation, particularly to ensure that they are not re-traumatised.
It is important to stress that these procedural rights and international examples of good practice do not provide victims with a veto over the criminal justice or transitional justice measure adopted to deal with particular human rights violations. For example, victim-centred justice does not mean that victims have a right to veto the establishment of any given transitional justice mechanism, or determine the outcomes of truth, justice, or reparations focused initiatives.
Nor do victims have the right to obtain a prosecution or conviction. Instead they have a right to an effective investigation and remedy for a human rights violation, whether committed by state or private individuals. Remedies may include truth recovery, acknowledgement, apology, compensation, rehabilitation or other remedial measures, but we stress again, they do not necessarily mean prosecution or conviction.
In relation to the substantive rights, justice entails that those responsible for causing harm to victims are publicly held to account for their actions and held liable for remedying the harm caused. The truth of what occurred should be established through the verification of the facts and a full and public disclosure examining the causes, consequences, and context of the past for all sides. Although victims have an arguable right to truth, because of the harm they have suffered, society also has a right to know what occurred to prevent its reoccurrence through institutional reform and education for future generations.
MANAGING VICTIM EXPECTATONS
One of the central challenges to genuine victim-centred justice is to ensure that victim expectations are properly managed. Promises made to victims which are undeliverable are not victim-centred. For example, a difficult reality faced in many jurisdictions (including Northern Ireland) is that achieving prosecutions for historical abuses may not be feasible for a range of legal reasons, such as the lack of strong enough forensic or eye-witness evidence that would be capable of sustaining a prosecution.
If a society decides to establish a truth recovery mechanism, another political and legal reality is that achieving truth recovery will be extremely difficult without some form of conditional amnesty or immunity guaranteeing that anyone who gives truthful evidence will not be prosecuted. Victim-centred justice in these contexts may mean giving victims truthful and accurate information about the legally and politically viable options, not simply telling them what they may wish to hear.
Reparations are measures to effectively remedy the harm suffered by victims and may include restitution, compensation, rehabilitation, measures of satisfaction (such as apologies and memorials), and guarantees of non-repetition. Reparations are generally made by those responsible for the harm caused to victims, whether state, paramilitary organisations, individuals or a combination of such actors.
In contexts where victims may also have been perpetrators of human rights violations, international practice would suggest that their claim to reparations may be reduced by a commensurate amount to reflect their responsibility in another’s suffering or indeed barred altogether. However, for those victims who committed violence but were unlawfully killed, the harm suffered by their families should not negate the right to reparations.
A final important point to emphasise with regard to the notion of victim-centred justice is to acknowledge the plurality of victims’ voices and experiences. How can a society achieve victim-centred justice when victims may have diametrically opposed views as to what should happen? All that can be done in such circumstances is to listen respectfully to such views, design mechanisms to deal with the past that are compliant with their rights, manage those institutions in ways that continue to maximise the voice of victims, and put in place measures designed to remedy the past abuses which they have suffered.
Luke Moffett and Kieran McEvoy are academics in the School of Law Queens University Belfast. They are currently working on an Arts and Humanities Research Council (AHRC) funded project entitled Amnesties, Prosecutions and the Public Interest in the Northern Ireland transition. With colleagues at Queens (Gordon Anthony), the Transitional Justice Institute, University of Ulster (Louse Mallinder) and local NGO Healing Through Remembering, the project is designed to provide legal, historical and international information on dealing with past in order to let people make up their own mind on these difficult and sensitive issue. This blog is part of a series written in response to specific requests for ‘user friendly’ papers designed to provide technical guidance for civil society and political actors. These and other project outputs may be found on the project website at http://blogs.qub.ac.uk/amnesties/
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