by Luke Moffett and Kieran McEvoy (School of Law and Mitchell Institute, Queen’s University Belfast)
While talks remain on-going about the restoration of the Northern Ireland Executive and Assembly, Secretary of State James Brokenshire has apparently confirmed to the Victims and Survivors Forum that a public consultation on dealing with the past will go ahead in the coming weeks. It appears likely that a pension for injured victims, a controversial and important part of the dealing with the past for those wounded and their carers, will not be part of this consultation process
The consultation will focus on the legacy mechanisms agreed in the Stormont House Agreement. These include: the Historical Investigations Unit that will focus on the investigation and potential prosecution of conflict related crimes; a truth recovery mechanism (Independent Commission for Information Retrieval); a storytelling repository (Oral History Archive); and a mechanism which is designed to explore larger themes and patterns (the Implementation and Reconciliation Group). Much of the discussion on these mechanisms has focused on those who were killed during the conflict. However, for the hundreds of individuals who were very seriously injured, and who live with the real consequences of those injuries there is no equivalent agreed process to address their needs.
Over the past five years there have been proposals by WAVE, the Commission for Victims and Survivors and others on how a pension for seriously injured victims could acknowledge and alleviate their suffering as part of a comprehensive approach to the past. However, a key stumbling block remains who should be considered a victim for the purposes of a pension. Although there is a lack of hard data on the numbers involved, it appears that somewhere in the region of a dozen former Loyalists and Republicans were so seriously injured during the conflict that they might meet the criteria to qualify for a ‘seriously injured pension’.
Some suggest that by excluding these victim perpetrators it creates a ‘hierarchy of victimhood’. On the other hand, others argue that to include people who have been involved in paramilitary violence in a pension scheme cheapens the suffering of innocent victims, creating ‘moral equivalence’ between terrorists and those who were injured at their hands. These debates are further complicated by campaigners on the behalf of those killed and injured by the police and army who point out that those responsible for such actions already enjoy comparatively generous pensions as a result of their previous service.
There are options that try to navigate these diverging approaches to address this issue. This piece suggests that one way around the current impasse would be to establish parallel processes for ex-combatants and civilians who were injured during the Troubles/conflict drawing in particular from International Humanitarian Law, usually referred to as the ‘Laws of War’. Such an approach might help to alleviate Republican concerns regarding a ‘hierarchy of victims’ by engaging directly with and taking seriously their view (and that of former Loyalist activists) that they were combatants engaged in a violent political conflict.
The Laws of War, Ex-combatants and Reparations
As ever in Northern Ireland, the language used to describe the conflict, those who were involved in violence and those who suffered violence is extremely politicised. For example, using the common post conflict term ‘ex-combatants’ is rejected by many in the unionist community as giving an ex-post facto legitimacy to terrorist violence. That term is also largely avoided by the British government, not least because of its associate with the ‘laws of war’. The laws of war did not apply to the Northern Ireland conflict for a number of technical reasons including the levels of violence (too low), the fact that paramilitary groups did not have sufficient control over territory (to act like a de-facto state) and because the UK and Irish governments did not sign up to a specific Additional Protocol (II) of the Geneva Conventions until 1998 and 1999 respectively which outline specific regulations on non-international armed conflict. However, while the laws of war did not apply at the time, nor can they be legally applied retrospectively, the language used within the framework may be of use.
Republican and Loyalist spokespersons have repeatedly sought to distinguish themselves as combatants from the civilian population. For example, the ceasefire statements of the Combined Loyalist Military Command in 1994 and the IRA apology in 2002 both identify themselves as combatants, organised into ranks, and distinguish their injured from ‘the deaths and injuries of non-combatants caused by us’ and ‘all the victims of the conflict, combatants and non-combatants.’ Similarly the featured photo above of the Clonard Martyrs Memorial Garden in Belfast separates those IRA volunteers and civilians killed during the conflict.
Last year UN Special Rapporteur on Transitional Justice Pablo de Greiff released his report on Northern Ireland and dealing with the past. He suggested that other countries dealing with the past create separate reparations and demobilisation programmes to address the needs of different victim and ex-combatant constituencies. Often after the end of hostilities actors involved in the conflict are processed through disarmament, demobilisation, and reintegration programmes. These assist in transitioning combatants from fighters in war to civilians in society.
For example, ongoing programmes in Colombia are seeing thousands of members of FARC handing over their weapons and moving to camps to begin their reintegration into society. These demobilisation and reintegration measures are being accompanied by other transitional justice measures, including truth recovery and reparations to which the Colombian government and FARC will contribute. The Final Peace Agreement also stipulates a basic income for demobilised FARC members to carry out economic activities. For those who are unable to work, a healthcare and pension programme is in place for two years, and three years for those FARC members who are seriously injured. For injured civilians the peace agreement will provide separate compensation and other collective reparative measures. In addition, the agreement specifies consideration for re-examining support measures for state forces who were injured.
In a similar vein in Kosovo, different schemes were created to determine eligibility for pensions for those killed or injured between those who had been members of the Kosovo Liberation Army and those civilians who were injured or killed during the war. In South Africa, armed groups which opposed the apartheid regime also insisted that their members be seen as combatants or fighters rather than victims. The South African Truth and Reconciliation Commission only treated members of these armed groups, including the South African Defence Forces, as victims where they were no longer combatants, such as when they surrendered, imprisoned or were wounded or injured or unarmed (i.e. hors de combat) and then subsequently injured or killed.
In Northern Ireland, peace talks, disarmament and reintegration have all been fragmented into discrete political settlements disconnected from any talks around dealing with the past. There is a sentiment that addressing the needs of belligerents of the conflict and their members (state and non-state actors) has taken priority over civilians affected by the conflict. Pablo de Greiff found it strange that compared to other countries, Northern Ireland had conflated reparations to victims with demobilisation of combatants. I believe that there could be space beyond the contested narratives over the past to have separate processes for ex-combatants and civilians, which could allow their needs to be addressed without a race to the bottom on moral or political one-upmanship.
Parallel pension and assistance for ex-combatants: A new way forward?
What would a parallel process look like? Well for civilians seriously injured during the Troubles/conflict they would apply for a pension under a proposed reparations body. This body would determine the amount of pension or cash sum, relevant carers who would benefit, and the severity of a claimant’s injury. The scheme for civilians could focus more on reparations, acknowledging the wrongfulness of their harm and providing appropriate measures to alleviate their suffering through a pension or cash-lump sum for elderly victims. There could be overlap between ex-combatants who were seriously injured and may want a pension. In such cases having a review panel in the civilian side of reparations would look at their responsibility and victimhood to find a balance and appropriate amount of a pension.
For ex-combatants from non-state armed groups who were seriously injured they could receive similar financial support or medical assistance under a separate body however described. This body would explore the particular needs of ex-combatants and ex-prisoners, perhaps drawing on the experience of the ex-prisoner networks established under the Good Friday Agreement and funded by the various EU Peace programmes. In particular, it would address the needs of those seriously injured and other appropriate measures to help their reintegration into society.
Such a programme could dovetail with some of the thinking contained in the Fresh Start Agreement. The latter includes measures designed to provide ‘support for transition’ for those previously involved in paramilitarism. This proposed body could be viewed in a similar light, providing medical, social and psychological support to those previously involved in violence, many of whom are now approaching old age.
There are already similar support and pension provisions for state forces. However, there are some gaps for injured soldiers, who were on temporary or short-term contracts, support groups are located too far away from where they live, and would need financial support to cope with their injuries. In such cases programmes for state forces should also be re-examined.
Creating distinct categories or programmes for different injured groups is common in other countries. Having parallel processes in place would encourage alternatives for different injured groups to find similar support mechanisms without the controversy of who is a victim, by instead replacing it with fairly straightforward questions of who is a combatant or civilian, and responding to their particular needs. It requires no-one to accept the legitimacy of the past actions of anyone else. It requires no one to accept that there is a hierarchy of victims.
This issue of pensions for those seriously injured in the conflict has dragged on for far too long. If politicians are genuinely interested in resolving it – and there are some in the victim community who are cynical as to whether or not they are in fact so minded – a modicum of political and legal imagination along these lines could fix this issue.
*This post originally appeared on Slugger O’Toole.