A.  THE COMPATIBILITY OF NORTHERN IRELAND LEGISLATION WITH INTERNATIONAL LEGAL INSTRUMENTS

The Victims and Survivors Order (Northern Ireland) 2006 defines a victim as “someone who is or has been physically or psychologically injured as a result of or in consequence of a conflict-related incident” as well as “someone who has been bereaved as a result of or in consequence of a conflict-related incident”. A conflict-related incident according to the Order means “a violent incident occurring in or after 1966 in connection with the affairs of Northern Ireland”. The key element of this definition is of course ‘conflict related incident’. It supposes that there has been a violent ‘conflict’ or a kind of ‘war’ in Northern Ireland and that all those affected by it should systematically be classified as victims. This definition leaves aside any reference to the terrorist campaign of the past 40 years and to the continual violation of criminal law and human rights law by terrorist organisations dedicated to re-writing the past to suit their political aims. What has been a terrorist campaign against the state and law-abiding people in Northern Ireland has been renamed ‘conflict’, a terminology that terrorists use in order to be treated equally with members of the security forces and to eliminate the distinction between right and wrong. In this way terrorism is considered to have some sort of justification and the actions by security forces to oppose and defeat terrorism are undermined.

The Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings defines a victim as “a natural person who has suffered harm, including physical and mental injury … directly caused by acts or omissions that are in violation of the criminal law …” If a terrorist act is committed and is sanctioned by law as a criminal offence then the person suffering harm is a victim. Although this definition does not refer specifically to victims of terrorism, it excludes the possibility of a terrorist – who violates the criminal law – being equated with an innocent victim of terrorism.

The UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by General Assembly resolution of 29 November 1985 has the merit of drawing a distinction between the victims of crime and the victims of Abuse of Power. The definition of victims of crime it provides is equivalent to that given by the Council Framework Decision, but it also includes the immediate family or dependants of the direct victim as well as persons who have suffered harm while intervening to assist victims in distress or to prevent victimization. Such a definition would apply to innocent victims and can be extended to victims of terrorism. It could not apply to terrorists, particularly those killed by security forces while perpetrating a terrorist act.

The other category of victims includes those who have suffered as a result of violations of internationally recognised norms relating to human rights. In this case the person becomes a victim if his/her rights have been violated under the European Convention on Human Rights. For example, a person who has been tried, convicted and jailed for a terrorist act in breach of criminal law but whose right to private life has been violated as a result of correspondence being unlawfully interfered with, could be classified as a victim of a violation of human rights law.

These two categories of victims are not to be confused to the prejudice of the innocent victims of terrorism or of the state in its fight against terrorism. The strategy of terrorist organisations has been to use violations of human rights law to undermine the state by way of propaganda. Human rights violations are usually condemned at international level by the European Court of Human Rights and any successes that terrorists or their families have had are widely publicized so as to depict state actors as human rights abusers. In relation to Northern Ireland, the reality has been that all cases of human rights breaches by U.K. authorities have been far less numerous than the violation of criminal law and human rights law by terrorists who have killed and injured thousands of innocent people.

The definition of victim as used at present in Northern Ireland legislation, which is interpreted as equating perpetrators who violate criminal law with innocent victims of terrorism, should be seen and declared incompatible with international instruments, such as the Council Framework Decision and the UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

B. THE ELEMENTS OF A PROPER DEFINITION OF VICTIM OF TERRORISM
The Council Framework Decision and the UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power do not define a victim of terrorism as such, but fail to exclude the possibility for a state to introduce legislation that would result in having terrorists equally considered as victims along with innocent victims of terrorist acts.

What would be helpful in the fight against terrorism is a definition of a victim of terrorism, one that does not give to terrorists, who kill or injure while perpetrating a terrorist act, and to their families the possibility to be considered victims on a par with innocent victims of terrorism. In a democracy like the United Kingdom there is no place, nor justification, for ‘Freedom fighters’ engaging in a so-called ‘conflict’ or ‘war’ with security forces. Terrorism is an attack on democracy and human rights in a state at peace with its neighbours, as it happened to be in Northern Ireland over the past 40 years. The reference to ‘conflict-related incident’ should be replaced with a reference to terrorist acts or campaign of terrorism combined with the violation of the criminal law.

Distinguishing victims of terrorism from terrorists, who may be victims of violations of human rights does not mean that there is a hierarchy of victims, as some would like to argue, but emphasises that there are different categories of victims that cannot be mixed and must not be confused.

On this basis the following classification can be submitted:
- Persons who are killed or injured as a result of a terrorist act, that is in violation of the criminal law and human rights law should not be classified as victims of terrorism; this category of victim should be composed of innocent civilians and security forces personnel and their relatives;

- Persons who are killed or injured by security forces or otherwise while being actively involved in a terrorist act should not be considered as victims of terrorism, nor of a violation of criminal law or of a violation of human rights; however they may become victims of a violation of certain human rights only, while being arrested, detained or tried;

- Terrorists killed or injured by other terrorists while actively involved in a terrorist act should not be considered as victims of terrorism but as victims of a violation of criminal law and of a violation of human rights, since only security forces can use force legally;

- Persons arrested, tried and convicted for an act of terrorism and eventually found innocent should only be treated as victims of a human rights violation if an abuse of process could be established during the proceedings.

A proper definition of victims of terrorism would have the merit of drawing a definitive separation between genuine victims of terrorism and terrorists, who can only be victims of human rights violations, in particular circumstances. The latter category of victim, rather than being used as a tool to undermine the state, should be used to highlight the willingness of the democratic state to make the rule of law effective even when dealing with the perpetrators of the most heinous crimes. By doing so it would protect democracy, promote human rights and help in the fight against terrorism.

The power and potential of Northern Ireland’s experience is to inform the world and to drive forward a Victims Rights Agenda, which will provide support, a strong voice and substantial weight to Victims of Terrorism. This is the most particular circumstance of Northern Ireland and one which must be reflected in our Bill of Rights, and all legislation. Victims of Terrorism, which represent over 90% of all victims must be recognised, properly defined, protected and provided for.

This will act as a guide for the world, where many countries for the first time have experienced the horrors of terrorism as we have. By defining and enshrining rights and protections for victims of terrorism and for citizens against terrorism, we will be making a safer and better world for all.

Therefore the definition of victims of terrorism should include the reference to:
- A terrorist act;
- A violation of criminal law;
- A violation of human rights law;
- The non-involvement of the victim in terrorist activities.
This definition should apply to the direct victim of a terrorist act and also to the
members of his/her immediate family or dependants as well as to persons who intervene to assist him/her, or to prevent him/her from being victimise.

The proposed definition could read as follows:
“A victim of is:
1. A natural person who has suffered physically, psychologically or economically as the direct result of a terrorist act in violation of the criminal law and human rights law, who has never been engaged in any form of terrorist activity; A dependant and/or a close relative of such a natural person; A person who has intervened to assist or to prevent such a natural person from being victimized.

2. A dependant and/or a close relative of a natural person who died as a direct result of a terrorist act and was never engaged in any form of terrorist activity.”

PROCESS AND RIGHT TO APPEAL
Having established that the default legislative position and statutory practice is that
Anyone who has been convicted of an illegal conflict related act shall be debarred from classification as a victim, further the families of those killed in the commission of such acts, who knowing of their relatives activities, may be guilty of an offense themselves, will also be debarred. Finally those relatives or carers who continue to support, endorse or glorify in the illegal actions of their relatives, will similarly be debarred, from classification.

The right to appeal should be established with individuals, relatives and carers able to argue the case that they did not or do not support the use of violence. There will always be exceptional cases and for this purpose the Victims Commission will assess such appeals, with the final right of appeal lying with the Secretary of State.

There again may be exceptional circumstances where families of terrorists were oblivious and opposed to their relatives actions. We have always acknowledged that one mother’s grief is similar to another. However, this is undermined by those families who endorse and glorify in the crimes of their relatives, refusing to acknowledge the pain they have inflicted on others. Therefore, any exceptional circumstances should be examined.

For example the family of a terrorist killed whilst active would demonstrate their eligibility by showing their opposition to the glorification of their relative’s actions by way of propaganda, memorial or paramilitary funeral. It would be both illegal and immoral to afford the status of victim to anyone who has, or continues to advocate, associate or glorify terrorism. Such activities are illegal and a declaration of current rejection alongside documentary proof of previous disassociation would ensure success on appeal.

For those who acknowledge past association and criminal activity but were attacked subsequent to renouncing it, they would be eligible for definition after signing a declaration to that effect. However, any financial recognition or compensation they would be eligible for would be paid instead to their victims, or into a fund such as the Northern Ireland Memorial Fund.

II   DEALING WITH THE PAST
Peace Through Justice
Introduction
Victims in Northern Ireland are very much a product of the past, and anyone who is genuine in their commitment to deal with the Legacy of the past must firstly deal with victims. They must be given primacy in any initiative which is developed. Sadly to date this has not been the case as even the past in Northern Ireland has been politicised. It has always been said of Northern Ireland that we live in the past and it is indeed close and impacts on all aspects of our lives.  Many victims are trapped not by choice but by birth in a centuries old conflict, which predates and will undoubtedly outlive the present political deal making. The past has shaped both perpetrator and victims alike, and the only comfort many draw from that is, we can all learn from the past. In order to do this we have an obligation to deal with the past. This is a topic which has never been fully opened in the province as it has a Pandora’s Box risk attached. It has the potential to retraumatise victims, to raise then dash hopes, to create new victims and to add to, rather than detract from the causes of conflict.

Dealing With the Living Legacy of the Past
Recognition
As self help groups comprised of victims we see the creation of similar groups as a positive step in addressing the past as they allow people to speak of their experiences for the first time and to share history. They also provide the vehicle for training and the building of confidence capacity and skills to reintegrate victims into society. Alongside this they offer the best route to effective genuine cross-community engagement, and the building of a shared future.

We feel that a lasting memorial to the sacrifice and loss must be established. However there are enough cold marble memorials in our countryside and plans to create shared ones are unworkable. Therefore we advocate the idea of a ‘Living Memorial’ Centre, a place dedicated to the memory of victims and a place where their relatives can remember them. But also a place where history can be recorded archived and presented as a tool to break the cycle of conflict. It is also a safe space for victims to come and feel at home, where they can learn and be re-skilled, where group activities can be housed and a range of services provided. As a group we have already taken the first steps in such a pilot project.

In terms of the Eames Bradley proposals on Remembrance and Recognition they are both naive and dangerous. Far from recognizing victims with a £12,000 payment they demean and devalue victims. The first issue is to properly define victims as we have outlined, then our proposal is to revisit the Bloomfield Report on Compensation.

We propose a Review of the Compensation paid to victims in line with Historical Enquiries. We feel that the system identified the individuals, however the amounts paid out were inadequate. Whilst some may say it is too late, we feel that many victims are still in need and their circumstances were not fully nor fairly assessed at the time. As a result many suffered in silence and indeed poverty for decades. It is never too late to address the insult that was so often given after the injury of their loss. Therefore we propose that a system is put in place whereby a victim is entitled to direct state intervention in the area of protection, justice, compensation, health provision, welfare and victim specific funds.

It is through a proper definition that Victims are recognised and through proper support structures that victims are assisted. Individuals, groups, communities and organisations will remember and memorialize in very different and unique ways. However the issue of memorialisation, needs to be reviewed. Where history is so contested, and the hurt still so real the commemoration of terrorists, their organisations or exploits must be deemed illegal. At present the glorification of terrorism, or the incitement of others to engage in it is already illegal. However specific legislation must be passed to take into account the situation in Northern Ireland where the commemoration, justification, sanitization or memorialisation of terrorism, by organisations or individuals, no longer actively involved will lead to support for dissident groups. This must be stopped as victims are retraumatised by such acts.

Redress and Reconciliation
Victims have certain rights that must be valued and protected, these are well articulated and accepted internationally and form the basis for redress and recognition of victims. This we would argue is the first step in dealing with the past as it necessary to accommodate victims in any process. Their rights have often been violated and as a first step to dealing with these past wrongs a new beginning for victims rights must be established. To that end we include our policy paper on Human Rights and also the text of the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.” Annex 1

Such international standards need to be applied to help Northern Ireland deal with the past. They must however be adapted along with other human rights frameworks to reflect the fact that the majority of abuses were perpetrated by sub-state organisations. These terrorist groups have never properly been dealt with under the criminal justice system and also slip through the net in terms of the human rights instruments, laws and protections. Laws must be strengthened to protect democracy, the rule of law and judiciary, and to ensure that the past is not repeated.

Restitution
The role of victim support groups is vital to the process, they act as an interface with victims giving them a voice and contact with the outside world. They must be the conduit for any initiative to deal with the past.
We also refer you to a policy paper entitled “ A Fair Future” which spells out our vision for the future of the victims sector which must be pivotal to any government plans to deal with the past. It outlines our concerns for current provision, and our ideas for the future including proposals for a Victims Commission.   

Initiatives to Deal with the Past
Many victims were overcome with a sense of foreboding when the Eames Bradley Report was published, and our analysis of its contents has done little to dispel that sense. Our analysis and response was carried in the main Daily Newspaper the Belfast Newsletter, and subsequently endorsed by the overwhelming majority of victims of terrorism groups.

The general analysis is contained in the executive summary with a fuller and more detailed examination of key factors outlined in the following chapters. We will make relevant comments upon the key Eames Bradley Recommendations however, we will not be bound by their structure or strategy and will outline our continuing approach to the issues of importance to victims. Of the thirty-one recommendations we feel that the majority are unacceptable in their present form to our members. While some contain kernels of truth or elements of interest, when placed in the overall context of the Report they soon become unacceptable. Our approach is not to cherry-pick this document but assess each recommendation on its own merits within a holistic framework. Many acceptable structures proposed would quickly become unacceptable when practically applied, for example due to the flawed foundations like the erroneous definition of a victim.

The Reports Recommendations may be summarized as follows
Recommendations 1- 3, 7-9 deal with the proposed Legacy Commission and Forum
Recommendations 4-6  with victims and the Victims Commission
Recommendation  10 the role and relationship of government institutions
Recommendations 11 – 15 with wider societal issues such as sectarianism
Recommendation  16 expunging of terrorist’s criminal records
Recommendations 17 – 23 changes to the present justice system and truth issues
Recommendations24 – 29 explored ideas and issues around remembering
Recommendation  30  a communal declaration of peace
Recommendation  31 a shared conflict memorial

WHATS IN A NAME ?
That which we call A ‘South African Style Truth and Reconciliation
Commission’ by any other name would smell as foul
Shakespeare, summed up the dilemma faced by Eames and Bradley aptly as he lent words to Juliet in his masterful work Romeo and Juliet. Why when we have fallen in love with someone or something can their name and all that brings with it be such an impediment to the course of true love.  

'Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What's Montague? It is nor hand, nor foot,
 Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;

The other quote fashioned by the Bard which seems to lend itself to the work of the Eames Bradley group would appear to be The lady doth protest too much, methinks. When the group protests that they have not proposed a Truth and Reconciliation Commission,  advocated an amnesty, or given to terrorists the means to rewrite their bloody past victims think perhaps they ‘doth protest too much’ . We believe that they have indeed fallen foolishly helplessly in love with these dangerous notions and knowing that the very names are so odious to society they have refashioned them.

The rejected South American and South African ‘Truth and Reconciliation Commissions’ have been renamed a Legacy Commission, a de jure amnesty for on the runs has been re-branded as ‘a recommendation on how a line might be drawn at the end of its five-year mandate…’ now doesn’t that sound sweeter? Therefore let us be under no illusion that while it may not be called a Truth Commission, and while the group have protested a little too much that it is not their model, the Legacy Commission is just that. The features which victims find so unacceptable are all contained in their proposals for the Legacy Commission. It is a poor substitute for the present and if accepted our improved Criminal Justice System. It forces victims to choose Truth or Justice, whilst providing a de facto amnesty or immunity for the perpetrator. It is not established to benefit victims affording them protection, truth, redress but rather is a mechanism to cover the past in the unseemly haste to move on for political reasons. The victims will continue to suffer as truth and justice will be finally sacrificed.

The central problem with these models, which the Legacy Commission adopts, is that they trade truth for justice, in a manner which excludes and abuses victims. This is often necessitated by the political agenda of the work, as it was established to give a degree of legitimacy to the current regime. No other concern has dominated discussions of truth commissions, especially from legal scholars, as has the issue of justice.  For many, the proper response to the perpetrators of human rights abuses, violence, ethnic cleansing, or genocide, must be criminal proceedings by some sort of tribunal, a court of law (international law, perhaps) duly authorized to render judicial dispositions: to establish justifiable facts of the matter, to render verdicts and, if called for, to punish. But, the Legacy Commission cannot by its nature deliver this sort of justice. Rather the advocates of such appeasement have created a range of quasi-justice forms and entities, among them “transitional justice,” “restorative justice,” or “retroactive justice,” most of which aim, in the end, to move away from criminal verdicts - retributive justice - and toward “truth-seeking” and reconciliation .

These alternative forms of justice mean that the work of truth commissions falls, in Martha Minow’s (1998)  phrase, somewhere in the morally, politically, and emotionally fraught continuum between “vengeance and forgiveness.”  The range of ‘alternatives’ offered to ‘deal’ with the past all fall short of the present accepted method of truth recovery in the United Kingdom namely the Criminal Justice System.

Advocates of the appeasement of those responsible for human rights abuse argue that they must be granted amnesty, their past actions blotted out in order that they are included in the new political arrangements. In short many argue that they must be appeased to ensure peace. However, the victims who long for peace and security more than most feel that reconciliation requires justice as well as truth? Here, justice is most often understood as being retributive and vengeful. Ours is not a desire for revenge but a desire for equality and justice. Equality before the law for all and equal protection under it, remains the principle and objective of victims.

The kind of justice meted out by a court of law, anywhere in the democratic world, in a criminal trial in which the accused has been found guilty of an offence in accordance with appropriate procedures, and a punishment proportional to the offence has been determined, is what we ask. The pursuit of retributive justice in a transition to democracy is important, not only because of the intrinsic worth of doing justice, but also because the enactment by the courts of the rituals of retributive justice will educate society in the practices of the rule of law that are crucial to the stability of democracy. We ask for equal citizenship and for basic human rights as are enjoyed by all those in a democracy – we ask no more – we will accept no less !

Like so many things in Northern Ireland the truth is contested, with each side jealously defending their version. To Sinn Fein/IRA such was the historical justification of their actions that no act of terrorism of human rights abuse could be defined as criminal. They may express regret or remorse but never accept the ‘truth’ that what they have done is wrong criminal and must never be repeated.

In a world in which it is yet possible for many people, in the face of overwhelming evidence of every imaginable sort, still to deny the magnitude, intention, or very existence, of the Holocaust, it is not surprising that the authenticity of more poorly documented human disasters may be made objects of great contention. The leaders of Republican terrorism still deny their own little holocaust and seek now to redraw history to their liking.

Any ‘truth’ recovery process which does not make a moral judgment of their human rights abuses followed by sanctions cannot be supported by the victims. The issue of the complexity and multiplicity of truth is a central one,  linking the problematic demands of justice and the hopes for reconciliation. It is also the arena in which the parties’ competing versions of history and the politics of memory play themselves out. In Northern Ireland all sides have their own version of the truth of “what really happened.”

However it is one thing to make public what happened, “to establish the facts,” and quite another to establish a society-wide consensus on what they mean. Facts do not necessarily conduce to shared truths. And even if they did, in some objectivist and positivist universe, and although truth is always a good thing, one cannot escape the fact that as the African proverb reminds us, ‘truth is not always good to say’. Without an agreed independent arbiter any process will simply be a method for collecting a range of differing often antagonistic stories, versions of the truth. In short there needs to be arbitration, between truths, in short judgment has to be exercised and the outcome binding on the participants. At present the only process which satisfies these criteria is the criminal justice system.
It exists to apply agreed rules to an issue, it is empowered to compel parties to present their version of events, their ‘truth’, it then draws on other evidence to reach a conclusion on what version or combination of versions constitute an agreed ‘truth’ and then acts to compensate or sanction the parties involved. This is what we as victims feel is needed in society.