Beyond Attribution: Responsibility of Armed Non-State Actors for Reparations in Northern Ireland, Colombia and Uganda

This chapter explores the responsibility of armed non-state actors for reparations to victims. Traditionally international law has focused on the responsibility of the state, and more recently the responsibility of convicted individuals before the International Criminal Court, to provide reparations for international crimes. Yet despite the prevalence of internal armed conflict over the past few decades, there responsibility of armed groups for reparations has been neglected in international law. Although there is a tentative emerging basis for armed groups to provide reparations under international law, such developments have not yet crystallized into hard law. However, when considering the more substantive practice of states in Northern Ireland, Colombia and Uganda, a greater effort can be discerned in ensuring that such organizations are responsible for reparations. This paper finds that not only can armed non-state actors be held collectively responsible for reparations, but due to the growing number of internal armed conflict they can play an important role in ensuring the effectiveness of reparations in remedying victims’ harm. Yet, finding armed groups responsible for reparations is no panacea for accountability, due to the nature of armed conflicts, responsibility may not be distinct, but overlapping and joint, and such groups may face difficulties in meeting their obligations, thus requiring a holistic approach and subsidiary role for the state.

Reparations for ‘guilty victims’: Navigating Complex Identities of Victim-Perpetrators in Reparation Mechanisms

Reparations are often declared victim-centred, but in transitional societies defining who is a victim and eligible for reparations can be a politically charged and controversial process. Added to this, the messy reality of conflict means that perpetrators and victims do not always fall in two separate categories. Instead in certain circumstances perpetrators can be victimised and victims can be responsible for victimising others. This article explores complex victims, who are responsible for victimising others, but have themselves been unlawfully victimised. Looking in particular at the 1993 Shankill bombing in Northern Ireland, as well as Colombia and Peru, such complex victims are often seen as ‘guilty’ or ‘bad’ victims undeserving of reparations. This article argues that complex victims need to be included in reparation mechanisms to ensure accountability and to prevent their exclusion becoming a source of victimisation and future violence. It considers alternative avenues of human rights courts, development aid, services and community reparations to navigate complex identities of victim-perpetrators. In concluding the author finds that complex identities can be accommodated in transitional societies reparation programmes through nuanced rules of eligibility and forms of reparations.

A Pension for Injured Victims of the Troubles: Reparations or Reifying Victim Hierarchy?

Reparations have been often used victim-centred measures to redress both private harm and gross violations of human rights. However, with the increasing occurrence of internal armed conflict and political violence, identities of victims and perpetrators in protracted conflicts can become blurred for some individuals. In countries like Peru and Northern Ireland that have suffered protracted violence, victimhood has been contested around which individuals are seen as innocent and deserving to exclude any members of non-state armed groups from claiming reparations. This article explores the issue of a proposed bill on a pension for injured victims of the Troubles in Northern Ireland. It identifies that there is no consistent state practice or human rights jurisprudence in this area, but instead offers a more complex approach through four models that can grapple with the seeming diametrically opposed victimhood and responsibility, by including victimised-perpetrators in reparations programmes such as that proposed for a pension of seriously injured victims in Northern Ireland.

We Never Give Up II

Ten years after the production of the initial 'We Never Give Up' film, this documentary filmis a follow-up film about the experiences of ten survivors of South Africa apartheid and their struggle for reparations. Produced by the Human Rights Media Centre, Cape Town, the film was directed and filmed by Cahal McLaughlin in a collaborative relationship with Khulumani Support Group Western Cape.

Further Information:

This documentary film, produced with the Human Rights Media Centre, Cape Town, and in collaboration with Khulumani Support Group Western Cape, is the ten-year follow up to We Never Give Up (2002), which addressed the issues of reparations as dealt with by the South African government and the Truth and Reconciliation Commission. We Never Give Up II (2012) returns to these themes and to the same participants, asking how life has changed in the interim. The process of collaborative practices acknowledges the importance of sharing ownership/authorship in the storytelling processes as well as in validating traumatic experiences by those who survived major and sustained political violence. Made over a two-year period, involving close consultation with participants, the film offers insights, by those most directly affected, to what might constitute legal, financial, social and psychological reparations. The film has been screened in Cape Town, Bloemfontain, Zanzibar Film Festival, Belfast (Belfast Film Festival), Brighton, Guildford, Galway and London, always accompanied by discussion of the issues raised in Q&As. To emphasise the importance of the film for debates on policy around reparations, a 25 minute edited version was selected to be screened on SABC on ‘Special Assignment’ by SABC on April 29th, 2013 (South Africa’s ‘Freedom Day’), followed by a debate with Department of Justice spokesperson, Dr Khotso De Wee. The chapter 'Maureen Never Gave Up' in Daniels, McLaughlin and Pearce (eds.) 'Truth, Dare or Promise' (2013) Cambridge Scholars Press (ISBN: 1-4438-4959-6, ISBN 13: 978-1-4438-4959-3, Release Date: 2013-09-01), which analyses the production of this film, is offered as part of the portfolio.

Unheard Voices: Stories from the Troubles

Produced in association with WAVE Trauma Centre, this short film records the experiences of six victims and survivors of the Northern Irish Troubles. Filmed and edited collaboratively, UV addresses issues of trauma, loss, justice and recovery. The story-tellers range from a police widow, to the brother of a sectarian victim, to a youth worker who lost is legs in an explosion. This film has been screened, with public discussions, between 2010 and 2012 by the Good Relations Departments of the following Borough and City Councils - Belfast, Derry/Londonderry, Lisburn, Ballymena, Coleraine, Moyle and Newtownabbey. It has also been screened at the Hallwells Contemporary Arts Centre, Buffalo, and at St Bonaventure University, NY (2012)

http://www.wavetraumacentre.org.uk/about-us/wave-projects/unheard-voices

Further Information:

This 30 minute documentary film was produced in collaboration with WAVE Trauma Centre, Belfast. Working closely with six survivors of the Troubles violence in Northern Ireland through all stages of production and exhibition, the film contributes to on-going discussions about dealing with the conflicted past in a contested present. The role of storytelling, identified by two government reports – the Bloomfield Report and the Eames-Bradley Report - as an important method of addressing the violent past, is one of the key research questions involved in the research. Public screenings and discussions have been organised by the Good Relations Departments of seven borough councils (Belfast, Lisburn, Derry, Ballymena, Newtownabbey, Coleraine and Moyle). The film has also been screened in New York State and London. One of the recurring themes brought up in these public discussions in the role and limits of storytelling alongside the legal issues of justice, prosecutions and reparations. An accompanying co-written article with PhD student, Jolene Mairs, 'Unheard Voices' in Mc Keogh, C. and O'Connel, D. (eds) (2012) Documentary in a Changing State,Cork University Press, is part of the portfolio presented for REF.

Reparative Complementarity: Ensuring an Effective Remedy for Victims in the Reparation Regime of the International Criminal Court

This article examines the reparation regime of the International Criminal Court in light of its first reparation decision. Based on the reparation jurisprudence established in international law and human rights law to provide victims of international crimes an effective remedy, this article suggests that in order for the International Criminal Court to achieve this objective it needs to go beyond individual criminal responsibility due to its limitations. This article considers the role of reparative complementarity in ensuring an effective remedy to victims of international crimes as part of the reparation regime of the International Criminal Court.

Justice for Victims before the International Criminal Court

Many prosecutors and commentators have praised the victim provisions at the International Criminal Court (ICC) as 'justice for victims', which for the first time include participation, protection and reparations. This book critically examines the role of victims in international criminal justice, drawing from human rights, victimology, and best practices in transitional justice.

Drawing on field research in Northern Uganda, Luke Moffet explores the nature of international crimes and assesses the role of victims in the proceedings of the ICC, paying particular attention to their recognition, participation, reparations and protection. The book argues that because of the criminal nature and structural limitations of the ICC, justice for victims is symbolic, requiring State Parties to complement the work of the Court to address victims' needs.

In advancing an innovative theory of justice for victims, and in offering solutions to current challenges, the book will be of great interest and use to academics, practitioners and students engaged in victimology, the ICC, transitional justice, or reparations.

Realising Justice for victims before the International Criminal Court

The International Criminal Court (ICC) has been celebrated for its innovative victim provisions, which enable victims to participate in proceedings, avail of protection measures and assistance, and to claim reparations. The impetus for incorporating victim provisions within the ICC, came from victims’ dissatisfaction with the ad hoc tribunals in providing them with more meaningful and tangible justice.1 The International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY/R) only included victim protection measures, with no provisions for victims to participate in proceedings nor to claim reparations at them. Developments in domestic and international law, in particular human rights such as the 1985 UN Declaration on Justice for Victims and the UN Guidelines on Remedy and Reparations, and transitional justice mechanisms, such as truth commissions and reparations bodies, have helped to expand the notion of justice for international crimes to be more attuned to victims as key stakeholders in dealing with such crimes.

With the first convictions secured at the ICC and the victim participation and reparation regime taking form, it is worth evaluating the extent to which these innovative provisions have translated into justice for victims. The first part of this paper outlines what justice for victims of international crimes entails, drawing from victimology and human rights. The second section surveys the extent to which the ICC has incorporated justice for victims, in procedural and substantive terms, before concluding in looking beyond the Court to how state parties can complement the ICC in achieving justice for victims. This paper argues that while much progress has been made to institutionalise justice for victims within the Court, there is much more progress needed to evolve and develop justice for victims within the ICC to avoid dissatisfaction of past tribunals.

Report on the Remedying the Past, Healing for the Future Conference