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Future Policies for the PastCompensation and reparationSir Kenneth BloomfieldThe BBC English Dictionary, which focuses upon the contemporary use of words, defines 'compensation' as 'money that you claim from a person or organisation to compensate you for something unpleasant that has happened to you'. 'Reparation', on the other hand, is 'the act of giving someone money or doing something for them because you have caused them to suffer in the past'. For reparation, then, you look to some individual or organisation which has wronged you; for compensation, you may look elsewhere for an appropriate recognition of the hurt you have suffered. As victims commissioner in 1997-98 I concerned myself with both compensation and reparation, as chair of the Review of Criminal Injuries Compensation with compensation alone. Reparation can come about by compulsory or voluntary act. When you bring a suit before a court against someone who has damaged your person, your quality of life or even your reputation, the outcome can be a decision compelling the wrongdoer to pay damages to the plaintiff. As the litigation involving Count Tolstoy and Lord Aldington shows, such suits can on occasion have a problematic outcome. But reparation can also be made voluntarily, as an act of grace and/or acceptance of guilt. As victims commissioner I was urged by a number of witnesses to press for the acknowledgment of wrongful action, whether taken by the state itself, by the police and army, by paramilitary groups or by individual citizens. Some of these witnesses also argued that a regional variant of a Truth and Reconciliation Commission could provide the setting for what one might call 'moral reparation'. I was subsequently criticised in some quarters for not saying bluntly that the state and its agents had on occasion been guilty of wrongdoing for which they should apologise, and for failing to recommend such a commission. But I had not then, and do not have now, the means to determine the truth of various highly controversial episodes. If the courts and/or tribunals of some sort can demonstrate beyond doubt wrongful action by the state or its agents, unquestionably apology, coupled in appropriate cases with monetary reparation, ought to follow. As for a Truth and Reconciliation Commission, it remains my view that this could only have a truly beneficial effect if all the principal interests were to believe - even if for different reasons - that it would be helpful. My involvement in questions of criminal injuries compensation arose out of my earlier work as victims commissioner. In my 1998 report, We Will Remember Them, I had recommended 'an objective, independent and wide-ranging review of the "fitness for purpose" of the compensation system'. The government invited me to lead such a review, with the invaluable support of Desmond Greer, professor of common law at Queen's University, and Marian Gibson, an experienced social-work manager. We reported at the end of June 1999 and the secretary of state finally responded to our recommendations on July 26th 2000. We had three big questions to answer:
These issues might be summarised as 'quantum', 'eligibility' and 'retrospection'. Systems of compensation for criminal injuries differ, not only around the world but within the UK. In Northern Ireland awards under the current law are made on a 'common law' basis, just like awards in industrial or other non-criminal injury cases. In Britain, on the other hand, a 'tariff scheme' introduced in 1994 provides for awards attaching a tariff value to specific, carefully defined injuries. Other jurisdictions have taken a distinctly different approach in dealing with victims or certain categories of victims. In Israel, for example, support for the victims of terrorist action is analogous with the benefits of non-contributory insurance, with the injured person becoming a pensioner of the state. Criminal injuries compensation is one of the matters not devolved to Northern Ireland but reserved to the secretary of state. It follows that any new code of law for the region has to commend itself to the Commons, the vast majority of whose members do not represent Northern Ireland constituencies. Should people who suffer in Northern Ireland be more generously compensated than in similar circumstances in Britain? Where there is no devolved responsibility, the arguments for 'parity' will always be strong, not least on the part of the Treasury. My colleagues and I could see very clearly, as our work proceeded, that adoption in Northern Ireland of a copy of the GB scheme would result in a considerable reduction in awards overall. And we took on board powerful arguments, from legal interests in particular, for the retention of the common-law basis. But, frankly, we did not believe that a recommendation for no change would carry much conviction within the wider political system. What we recommended, therefore, was the retention of the common-law basis for the most serious cases, with a move to a regionally-calculated tariff for less serious injuries. I am sorry that the secretary of state was not, at the end of the day, able to accept this compromise. Instead, he announced last July a decision in principle to move to a regionally-based tariff system. Given the inevitable pressures for parity and the need for the Northern Ireland secretary to carry his colleagues, it is however a very important achievement that the starting point for a tariff system will be the historic level of awards in Northern Ireland, which by and large are substantially more generous. We are promised, in due course, consultation on a draft order in council. I note that the secretary of state's statement envisaged a three-yearly 'review' by government of tariff levels. Government should not merely review the tariff but - if we are not to have an insidious, long-term devaluation of established levels - commit itself to uprating, from time to time, to take account of inflation. The move to a tariff basis will certainly influence the quantum of compensation which future victims of criminal violence in Northern Ireland can expect. But we are unlikely to see new law in operation before 2002. However the quantum of compensation is to be calculated, there will be prior questions about eligibility. When I spoke to victims during my initial commission of 1997-98, some very hard cases came to light, which deeply influenced my recommendation that there should be a comprehensive review. In that review, we were able to exam ine these issues in detail and make recommendations for improvement. And the secretary of state has accepted that some changes are needed. Hitherto, the scheme as operated in Northern Ireland has had a 'once for all' character: a settlement, once made, is final. So, if Mr X comes along a year after an award has been made on certain assumptions about his medical condition, bringing conclusive evidence that it has proved to be much more serious, the answer has had to be that 'your case has been decided and cannot be reopened'. We recommended that a case should be eligible for reopening if the victim's earning capacity were to deteriorate as a result of the injury, to such a degree that allowing the award to stand would represent an injustice. It has been accepted in principle that cases ought to be reopened on such medical grounds, normally within two years of the original settlement, although with discretion to extend that in exceptional cases. Another area of perceived injustice was in the recognition of psychiatric injury. Under the law up to now, a woman could pop into the village to post a letter and return home to the farm to find her husband dead or dying on the doorstep, but nevertheless be unable to claim for any resulting psychiatric condition because she had not been on the scene when the loved one was killed. This requirement of presence at the spot will now be dropped, with claims entertained from persons with whom a 'close tie of love and affection' exists. A spouse, a cohabitant for at least two years, a parent or a child will be deemed to have such a close tie; but claims resulting from other relationships can be considered on individual bases. A further very difficult and controversial area is the payment of compensation to persons - or to their relatives on their death - who have been involved in criminal activities. Many such claims do not relate to high-profile paramilitary or other crime, but to affrays outside bars or clubs or other relatively low-level thuggery. We might find it difficult to be asked as taxpayers to dig into our pockets to compensate someone for injuries sustained in a fracas in which he had been a far from innocent party. What is more complicated is the question of the weight to be given to past activities and involvements. I met a still relatively young woman who had lost her husband through a sectarian murder. He had been a good husband, and she was convinced that throughout the marriage he had had no criminal or paramilitary involvement. But when she claimed for compensation it emerged that, years earlier and as a very young man, he had become a member of a paramilitary organisation, and compensation was accordingly refused. The secretary of state has the right to remove this bar at his discretion but has seldom exercised it. In accordance with our recommendations, there will in future be a more equitable approach. For criminal convictions, including convictions for paramilitary offences, the principles of the Rehabilitation of Offenders Act will apply, and a 'penalty points' system, akin to that in force in Britain, will be adopted. For those with paramilitary links (as distinct from convictions), the current ban will be replaced by a provision allowing the authorities to take account of character and way of life in determining whether any compensation should be paid and, if so, its value. I regret, though, that the secretary of state has not felt able to accept our plea for a distinction between the activities of a claimant and those of a person whose death or injury gives rise to the claim made by another. I can, of course, see the difficulty in an injury (as distinct from fatality) claim: a person both guilty and injured could benefit indirectly if not directly from any compensation paid to the family. But I remain uneasy about the possibility of innocent children, in particular, suffering over the very long term as a consequence of parental activity.
'Every official dealing with this problem of hurt ... should ask himself or herself the question: would this be a suitable approach if I was dealing with a member of my own family? Because bureaucracy, and I was in it myself for years, can be very insensitive.' One of the most difficult areas we had to consider was that of compensation for bereavement. Here there are questions of both eligibility and retrospection. As victims commissioner and as chair of the review, I heard most harrowing tales from people who, particularly during the 70s, had lost close relatives, had expected some reasonable recognition of that loss from the state and society, but had found their entitlement to compensation limited to a very modest contribution towards funeral expenses. The plain fact is that the system looked almost solely at the economic loss sustained through the death of a close relation. Thus the loss of a child too young, or a husband too ill, to earn represented 'no economic loss' for the purposes of the compensation system. Clearly, many people regarded the sum offered in such circumstances as an insult, compounding the outrage flowing from the act itself. This situation was improved with the introduction of 'bereavement awards' in 1988. Today, in addition to any other entitlement, £7,500 is payable to the wife or husband of the deceased or - where the deceased was a minor (under 18) who was never married - to his parents (if he was legitimate) or to his mother (if he was illegitimate). By the same token, a bereavement award has not been payable to the child or unmarried partner of a murder victim, or to the parents of a victim who was over 18 when he or she was killed. We argued in our report for a more generous quantum and a redefinition of qualifying relationships. The secretary of state has accepted that a new Northern Ireland scheme should include spouse, cohabitant, parent and child (of whatever age). A spouse would receive £10,000 and other qualifying relatives £5,000, subject to a maximum of £50,000 in each case (as against the current total of £7,500 per case). Yet, even with this improvement, relatives are unlikely to accept as adequate levels of compensation for the death of a loved one. I have used the word 'compensation' solely because it is deeply entrenched in law, but sometimes it seems positively misleading if it can be taken to imply a making up for the degree of loss suffered. That is why we recommended, and the secretary of state has accepted, the description of 'bereavement support payment'. In our review the task we undertook was to consider 'whether the State has made decent, adequate and timely provision, within realistic limits of total cost, for the recognition of the sufferings of victims and their ability to enjoy a decent standard of life in all the relevant circumstances, and all within an efficient, humane and sensitive legal and administrative framework'. Our terms of reference asked the review team to look both backwards and forwards. We were to look at the fitness for purpose of the arrangements for compensation 'in the light of the experiences of victims of terrorist violence'. We were also asked to consider how any shortcomings we identified 'might be rectified for the future in any new statutory framework'. But were we, then, to say to those who had been ill-served by the system at the time their claims fell to be considered, that 'the only solace we can offer is that others, in time to come, may benefit from your distressing experience'? Having been a civil servant for almost 40 years, I was only too well aware of the great prejudice against retrospective legislation and the cool reception which can await recommendations by any appointed body straying outside its given terms. But we encountered feelings of injustice so pronounced that we did not feel we could leave matters there. So we recommended that, however belatedly, some recognition should be given to the hardships of those inadequately compensated in earlier days under the law as it stood. I am pleased that government has taken these issues on board, and that we can expect an enhancement of the funds so far committed to implementation of the Victims Commission report, specifically 'aimed at alleviating the financial hardships and other suffering inflicted on many by violence during the Troubles'. I conclude with a word about 'the disappeared'. Ever since I met Margaret McKinney in a BBC studio on the day of my appointment as victims commissioner, I have done everything in my power to push this issue, this terrible injustice, up the agenda. I included in We Will Remember Them a very specific appeal for action. I returned to the issue on many occasions, ultimately drawing a constructive response from Mitchel McLaughlin. And I have most recently served as one of the two international commissioners seeking to facilitate recovery of the bodies. In our review, we called for some financial recognition of the special trauma experienced by these relatives. I am sorry that the decision of the secretary of state to act in the way we suggested has been characterised in some quarters as 'an insult'. Of course the sum mentioned is not enough; it could never be enough. But it is, nevertheless, a recognition and acknowledgement by the state of a very special and very painful trauma. We proceeded on the premise that it is better to do something than to do nothing. I do hope that, on reflection, the decisions of the government can be accepted in that spirit.
ResponseSandra PeakeA great deal of attention has been paid - by individuals, community activists, victims organisations, academics and civil servants - to the issue of compensation. By and large, reparation, whether financial or moral, has been less to the fore. Sir Kenneth's paper focuses mainly on compensation, which reflects its prominence when considering the needs of those directly affected by the 'troubles'. There is no doubt that compensation is one of the most difficult issues facing those bereaved or traumatised. While the focus of the review team was on the proposed restructuring of the Criminal Injuries scheme, there are undoubtedly implications for those affected throughout the years of the 'troubles', whether at the hands of paramilitary groups, the state or individuals. The team was also asked to make recommendations which would affect those exposed to prior compensation legislation. The terms of reference referred to 'victims of terrorist violence', thereby excluding those affected by the army or police. While many cases involving state violence may be dealt with by the Ministry of Defence or the chief constable and not by the Compensation Unit, the latter will only work with individual cases if the crown does not assume responsibility. Some may thus potentially fall between the two agencies and this is an area where further work is required. Sir Kenneth highlighted changes to come: a move to a tariff system similar to that in Britain, recognition of psychiatric injury and recognition that the person affected may not have witnessed the incident. He also suggested changes vis-à-vis persons involved in criminal activities, families whose loved ones have paramilitary links and implementation of new funds such as the Bereavement Support Payment. While many of these recommendations will bring change, this will not however be evident until 2002. It is everyone's hope that by that time the killings and maimings will be events of the past. This poses the question of how we deal with those affected throughout the previous years. According to the review, this lies in the hands of organisations committed to alleviating hardship and suffering, such as the Northern Ireland Memorial Fund (an independent charitable fund that seeks to promote peace, reconciliation and remembrance by providing practical help and support). While such initiatives have provided valuable assistance to many, they should not have the role of supplementing inadequate compensation. Indeed some people may be deterred from seeking such charitable assistance. Additionally, the Memorial Fund schemes tend to be directed towards specific items, which may not meet the needs of individuals as well as direct financial help. There is no doubt that the review raised expectations of change. In the report there was the suggestion of £10,000 as a top-up award for those affected before 1988 and as payment for those who had not received compensation (such as families whose loved ones had disappeared). The rejection of the top-up payment by the government has undoubtedly added to some people's feelings of worthlessness and the opinion that the government does not think very highly of them. This raises difficulties for those who have never received compensation for whatever reason - such as lack of information or vulnerability at the time - as well as for those whose compensation was derisory, those excluded from compensation and those whose injuries have deteriorated over time. The proposed system accounts for the deterioration of injuries in the short term, but loss of earnings, costs of future medical and social care and future medical diagnosis involve an element of guesswork. While it may be possible statistically to predict a group of cases, it is not possible to predict accurately the course of a single case over many years or long-term life expectancy. In the past this may well have led to payments not reflecting the true cost for individuals, nor the effect of a variety of factors on their lives. Marie Smyth suggests earlier in this volume that relative reluctance to diagnose PTSD in Northern Ireland may have reduced compensation expenditure and affected its distribution. Could the same have applied to other areas, such as the opinion provided for the prognosis of physical injuries in terms of life expectancy? The reality is that no money will ever be enough; nor, in the case of bereavement, will it bring back loved ones. Many, however, associate compensation with justice and questions of 'worth'. At some stage the person may harbour a belief that compensation or litigation will somehow bring justice. They will inevitably feel let down after an award of compensation is made or where a case is dismissed. For some the issue can compound the sense of outrage following the act itself and it can become entangled with the fate of the perpetrator. Particularly in cases where no one has been caught, some think the person who has caused their trauma will somehow be punished if they are successful. They often do not realise that the case is about compensation at law and that the only outcome may be receipt of damages from the taxpayer. This 'outcome' may not always be viewed as a success and the process can leave individuals feeling more powerless and, in some cases, vulnerable. It can also leave some with a feeling that the traumatic event was not adequately presented, and that it was their fault. O'Brien (1998) suggests that while the end of litigation may mean an end to going over events with various strangers, it is unlikely to leave the patient happy and satisfied. Major issues here, regarding the sensitive and respectful treatment of individuals, need to be addressed by the medical, legal and judicial systems. Sir Kenneth refers to how the word 'compensation' is deeply entrenched in law but can be positively misleading. The change in terminology and practice with the Bereavement Support Payment is very important. People do have a right to decent, adequate and timely provision, albeit within realistic limits of total cost. The Human Rights Act will highlight rights issues more clearly, giving individuals a greater awareness of their entitlements. While compensation seeks from another agency recognition of loss endured, reparation addresses directly the individual or organisation that wronged the victim. While some may focus on financial reparation, for many there is a need for moral reparation, the acknowledging of wrongful action. Often, however, reparation is sought to no avail. The person responsible first has to be identified, yet often this identity is not known. Pursuing financial reparation via a civil action may be pointless given the circumstances of the perpetrator. The 'man of straw' legal term, implying that the person is not worthy of being sued, has prevailed in many cases during the 'troubles'. As to moral reparation, acknowledgment of wrongdoing and hurt caused is important for the victim's inner healing. Such sought-after acknowledgment has often focused on state violence. The bulk of cases involving paramilitaries are unlikely to lead to acknowledgment of wrongdoing: such actions are deemed by their perpetrators as having been 'legitimate' with, to some degree, victims viewed simply as casualties of 'war'. Reparation requires that:
The jury is still out on the applicability of the Truth and Reconciliation Commission to Northern Ireland. One of the prerequisites of reparation is a safe and secure environment and, as Sir Kenneth argues, all the 'principal interests' should believe it to be useful before any commission or tribunal would be established. Whatever model is developed must be in keeping with the particular political, social and cultural dimensions of this conflict. Peace is founded on justice, truth and charity. In the absence of truth, trauma will be passed on to the next generation and the one after that; and truth is integral to the healing process (Murray, 1998). But, for some, truth might well be unbearable. A variety of support mechanisms are required before any truth-finding initiative can be contemplated. The concept of reparation should be explored further, with the recognition that for many the identity of the perpetrator is unknown. The questions we need to ask are:
Both compensation and reparation are of concern to those directly affected by the 'troubles'. In looking forward to a new system of compensation, it is important to acknowledge those affected by the pre-1988 legislation as well as current law. It is vital that the needs of all those affected are addressed and that the enhancement of funds by government is sufficient to address the inadequacies of the past. While no amount of money will be enough, compensation is a running sore that must not be used for political gain. All those affected must be recognised and treated with respect and sensitivity, and the issue must be maintained as a priority by all involved in the building of a new future. Bibliography Murray, R (1998), State Violence: Northern Ireland 1969-1997, Dublin: Mercier Press O'Brien, S (1998), Traumatic Events and Mental Health, Psychiatry and Health, Cambridge Press: London
Future policies for the pastBrandon HamberDorte Kulle Robin Wilson Trying to carve out a future policy for dealing with the past in Northern Ireland is a sensitive and complex endeavour. To simplify matters, the issue needs to be dealt with at two levels. The first is that of the individual who was victimised and who, over the years, has faced the huge difficulties involved in trying to understand, and come to terms with, what has happened to them. These experiences are not reducible to concrete or specific outcomes: the hurts of the past for victims are generally multiple and immeasurable. Further-more, and only apparently ironically, for some their difficulties have become greater since the 'peace process' began. That process, despite all the associated political progress, has confronted victims with the atrocities of the past through prisoner releases; this is compounded by the reluctance of the state to probe further abrogations of human rights too closely, for fear of rocking the paramilitary boat. Moreover, the recent focus on victims has, perversely, put pressure on individuals who are not ready to reconcile themselves with previous atrocities to do so. And it has created a competitive discourse of 'victimhood', where different perspectives are fighting for the moral high ground - in turn, a source of further distress for the victimised. The second level is this wider socio-political context. Even though we have the Belfast agreement, conflict is far from a thing of the past. The two main communities remain polarised - indeed, more polarised than ever - and a visceral issue is who is a victim and who is not, who is deemed 'innocent' and who author of their own fate. This debate, notwithstanding its manipulation by ethno- nationalist entrepreneurs, is an inchoate reflection of the fact that victims from all sides feel unheard by society at large. Somewhere, within the social fabric of Northern Ireland, victims' pain is not being acknowledged, making them feel they need to compete with each other for social space, public recognition and attention, and financial support. This is most undesirable: society as a whole must assume responsibility for creating a milieu in which victims feel they are taken seriously, no matter what their political orientation. These few paragraphs demonstrate that dealing with the past is hugely difficult, in terms of both the human sensitivities involved and the policy and political issues. In Northern Ireland there is an expression 'History isn't merely the past: it isn't even over yet'. Flippant though it is, the foregoing chapters suggest that for both individual victims and the wider society the comment is a valid one. Past conflicts continue to play themselves out - if, thankfully, not as violently as before - while the old fissures hold firm. On the level of the individual, several important issues raised earlier in this report are worth reiterating. First, for those victimised by the violence of the last 30 years, and even today, 'compensation' for their loss, however vital, is inevitably inadequate. It fails to recognise the long-term nature of repair and restoration, and finance is inherently incommensurate with loss of life. Services for, support to and treatment of the individual victim are at least as important - probably more so - and these need to be evidence-based. This requires a new relationship between victims and service providers - particularly statutory providers who, for the most part, have failed to engage sufficiently with the impact of the conflict. At the same time, the role of the voluntary sector and lay workers, as experienced and sensitive providers, also needs recognition, albeit with proper monitoring and evaluation. Additional services that focus on trauma and its effects, as well as a wide range of ancillary supports - dealing with disabilities, children's needs, alcoholism and so on - may also need to be put in place. Equally, it is important that holistic approaches are adopted, and adapted to the individual victim. This needs to start from the recognition of the injustice done to them and their various and multi-faceted needs - extending, as these do, over time. In policy terms, this seems to imply the need for a minister, perhaps a junior minister, in government under the devolved arrangements. Here, victims responsibility lies with the Office of the First Minister and Deputy First Minister. Such a minister should not, as in the continuing Northern Ireland Office arrangements, simultaneously be a minister for security. He or she would need to be supported by an effective, cross-departmental, integrated approach to assisting victims. It is, of course, far easier to argue for 'joined-up government' than to actualise it, though the location of victims policy in OFMDFM is a good start. For that reason, there needs to be an effective voice for victims in playing a watchdog role over government. Apart from victims groups coming together in a more coherent way to this effect - and there are obvious difficulties in achieving that, given the mistrust and fragmentation - an ombudsperson or commissioner should thus be put in place. Indeed, among other things, this person could seek to broker better relationships between victims groups and encourage networks in which all victims feel able to participate. He or she could be mandated continually to challenge government, across the span of agencies and at all levels, to deal effectively with victims-related issues. The post holder would need to ensure that the debate about how Northern Ireland is to come to terms with a legacy of violence is put squarely on the table. At the broader societal level, solutions also need to be sought. Here, practical answers can be more difficult to find than providing victims with adequate support and social space to deal with their pain. One suggestion - although it is one that not all in Northern Ireland would subscribe to - is that the search for truth and justice needs to continue. In terms of truth, it seems unlikely at this point that there is going to be one event, such as a comprehensive truth commission, that will deliver all the truth about the past. We may all have to accept that there will be a series of events or episodes - trials, commissions of inquiry, investigative journalism, story-telling by victims and so on - that will bring out some dimensions of the truth for some people. There simply is not the willingness on the part of all protagonists to tell the human truth of what they did. Much is buried in the inaccessible files of the 'security services'; much more is buried under the protective langue du bois of paramilitary ideology. It is no coincidence that the '3Rs' of this report - repentance, reparation and reconciliation - have been so absent from public discourse in this area. All are about 'living in truth' - to borrow a phrase from the Czech president and former dissident, Vaclav Havel, where the implicit contrast is with 'living in ideology'. The strongly implied under-pinning of the Northern Ireland 'peace process' has been that, in the name of Realpolitik, an excess of truth would be highly undesirable.
'Can we get to a position of shared history and shared memory? ... I just don't think that is an obtainable goal, because we have, each of us, our own shared histories within our own community or across communities, and our own memory.' The introduction to this conclusion has already demonstrated, if demonstration were needed, that policy and political initiatives in this area may perversely do more harm than good if not very carefully thought through - indeed, if not very sensitively discussed with victims' representatives. A truth commission which purported to tell the whole truth, and nothing but, yet was widely seen as telling only some truth, and that shrouded in much ideology, could add insult to grievous injury. Whatever the means of truth recovery, however, the surfacing of truth will be painful for all concerned: victims, perpetrators, witnesses and bystanders. This is clearly evidenced by the events and revelations of the Bloody Sunday Tribunal, although the pain that comes with the truth is a necessary step on the road to healing. Few victims would say they would not want to know the extent of what had happened to a loved one. Given the tenuous nature of the peace in Northern Ireland, the best approach may not be the adversarial style of the British or Irish courtroom. The focus on restoration or repair might favour the continental legal model of exploration and investigation. This is particularly true in a society where the violence has been largely (although certainly not exclusively) 'horizontal' in nature - within and between communities, rather than solely between the state and its citizens. This type of violence demands a mainly horizontal solution, which focuses on rebuilding relationships and addressing the damage done to the social fabric by the violence of the past. Pursuing such matters exclusively through courts will not repair the trust - as well as community life and interaction - destroyed in this way. Nor indeed will it be able to elicit all the truth, often tacit and informal, about the nature and extent of such violence. The South African Truth and Reconciliation Commission uncovered, at least to some degree, the atrocities of the apartheid state. But one of its weaknesses - a weakness identified by the commissioners in their final report - was that it failed to deal with this horizontal violence, manifest in the conflict between the African National Congress and the Inkatha Freedom Party, which claimed more than 14,000 lives between 1990 and 1994. Current levels of violence, including criminal and domestic violence, in South Africa suggest moreover that the social fabric has not been repaired, despite the commission's successes at the national level. It is thus erroneous to think that there can be only one solution to addressing the past. It seems that when the conflict is primarily between an authoritarian régime and its people one solution - perhaps a truth commission or several commissions of inquiry - may be needed. It needs to be recognised that such a commission(s) or tribunal aims to render the state as a whole accountable for its responsibility in substituting coercion for rule by democratic consent. Hence truth commissions have hitherto taken place in societies emerging from dictatorship, that in South Africa following on from that in Chile. In this scenario, a truth commission - or a commission of inquiry like the Bloody Sunday Tribunal - makes sense where the primary actor in an atrocity or atrocities involves the state. When the conflict is within and between communities, however, other solutions may be required - solutions which address the micro-social impact of the conflict on everyday life. This is not to say that the distinction between what is state violence (and a violent response to it) and what is intercommunal violence is easy to make: it is not as, inevitably, the state intervenes in the latter and is itself a proxy target for it. Nonetheless, there is a clear pattern to contemporary conflict which, ironically, makes Northern Ireland somewhat more modern and typical than its clichéd representation as a unique 17th-century hangover suggested. In today's globalised environment, inter-state wars over interests are increasingly rare, intra-state conflicts over identity increasingly common (Kaldor, 1999). In such 'new wars' - notably in ex-Yugoslavia in the 90s - the perpetrators of violence are less soldiers, more paramilitaries; tragically, too, the victims are less combatants, more civilians. Where the responsible actors are primarily non-state, it is critical to bring citizens as a whole into the process of addressing what has happened. Inaction is often deemed 'innocence' in Northern Ireland. Yet such inaction - or, worse, covert support for ethnic protagonists claiming to act in the community's name - is not the basis of a human-rights culture. On the contrary, each community from which perpetrators are drawn can otherwise be declared 'responsible' by the 'other side' via the construction of enemy images - enemy images so easily, and mutually, perpetuated. Every citizen is not a victim - but they can be deemed to be affected, if not damaged, in some way. In a recent Balkan Crisis Report (Institute for War and Peace Reporting, 2000: 3), the notions of collective and individual responsibility were teased out by the Serb journalist Miroslav Filipovic, imprisoned by the Milosevic régime for publishing stories about atrocities by Serbian forces in Kosovo. Filipovic draws a clear distinction between the responsibility of the state and the responsibility of the population for the atrocities in Kosovo. In terms of the former, he claims that if wrongdoing has taken place with the sanction of the state this needs to be investigated and, preferably, result in a trial; he sees such trials as necessarily targeted at individuals directly responsible: I do believe that the actions of Serbian citizens in the wars on the territory of the former Yugoslavia, including Kosovo, will one day lead to public trials, within Serbia or at The Hague tribunal. The whole point of my articles, in fact, is that no crimes were committed by the Serbian nation or the Yugoslav Army as a whole, but by individuals through individual acts. Filipovic's arguments highlight the importance of bringing the individual perpetrator into the picture. He clearly does not feel that the state is responsible alone, without the collusion of individuals. The denial of any individual responsibility by perpetrators displaces the fundamental question as to why particular individuals reacted in the violent way they did when the majority in their community did not. This poses some interesting questions for Northern Ireland, where there is much collective blaming on the one hand and diffusion of individual responsibility on the other. From one ideological perspective, paramilitary violence is an automatic reaction to the existence of 'conditions of conflict' (O'Doherty, 1998: 157); from the opposite paramilitary pole, it is a displaced individual responsibility - that of 'politicians' who stirred young men to sectarian murder. And for those who defend state violence, the collective behaviour of paramilitaries allows individual soldiers and police officers to ignore with impunity the human-rights conventions by which (unlike paramilitaries) they are, under the rule of law, bound.
'If we're going to move forward together and if we're going to share our stories, then we have to give each other the right to be confused. And we need each other to try to find answers.' The debate about dealing with the past in Northern Ireland will only move forward once individual, as well as collective, responsibility for acts of omission or commission - by the state and its services, as well as by paramilitaries - is openly acknowledged. The starting point should not merely be to blame, but rather to identify how those responsible can demonstrate genuine accountability for the consequences of their actions. Acts of remorse and restitution - another two 'Rs' - whether financial or symbolic, also need to be undertaken towards those injured or bereaved. Where international human-rights conventions, such as the Convention on Torture, or international humanitarian law, such as the Geneva Conventions, have been violated, the law should, ideally, follow its course. It may as well be recognised, however, that the Realpolitik referred to above will constrain such developments. A senior Northern Ireland human-rights lawyer, surveying the legislation to ratify UK support for the International Criminal Court, asked only half in jest under which provisions on war crimes and crimes against humanity two leading IRA figures with public political roles might be arraigned before it. Continuing his reflections on Kosovo, Filipovic writes: Ultimately, I hope this will also involve a regional process of truth and reconciliation, through which people from all territories of the former Yugoslavia will reflect on the wars of the past decade and be brave enough to confess their mistakes, misconceptions, and unlawful actions. In Northern Ireland, a typical - admittedly, in some cases, stereotypical - response from middle-class (particularly Protestant middle-class) citizens is to assert that 'others' have been at fault: I, who had nothing to do with the conflict, am not responsible in any way. Filipovic challenges us to see things differently: a cornerstone of reconciliation is that all citizens reflect on and confess their mistakes, misconceptions and, in extreme cases, unlawful actions. The South African TRC tried to address both the broader social and individual responsibilities. Perpetrators had to come before it as individuals, though the commission reserved the right to hold the state and political parties responsible (and it did) for the actions of subordinates. At the time, the commission argued that most in society, especially the (largely white) middle classes, were responsible because they had not tried to change the situation in which human-rights violations (from all sides) took place. The debate in Northern Ireland needs fleshing out on two dimensions. First, can the truth behind 'vertical conflict' (between state and communities) only be revealed if it is extracted through truth commissions, tribunals or inquiries? Secondly, can the truth about 'horizontal conflict' (between communities and within communities) only be revealed if it is admitted? If the answers are yes, then, in terms of the former, we need to ask what are the trust-building mechanisms (or coercions) necessary to ensure the state and those who fought with it reveal the truth. A truth commission, or a similar body, could compel state witnesses to attend and subpoena documents from officialdom - but the prior political will to set up such a structure would remain a prerequisite. Sub-state actors involved in 'vertical conflict' could also be difficult to draw in, as they can not be subjected to the same pressures or sanctions as officials. So far, paramilitaries have only been willing to express 'regret' for their actions, except the reference to 'abject remorse' in the loyalist ceasefire statement of 1994 - and that proffered only to 'innocent' victims. Aside from the Bloody Sunday Tribunal - and that took decades of campaigning by relatives - the state has also proved highly reluctant to engage in an holistic process or admit to any wrongdoing. One of the authors was once on the receiving end of blatant misinformation by an army press officer about the slaying of three young thieves by undercover soldiers in west Belfast. Here, as in several other instances, the requirement in the European Convention on Human Rights that security personnel exercise force 'which is no more than absolutely necessary' was clearly transgressed - albeit not on such an egregious scale as at Bloody Sunday. Thus, the commission of inquiry and legal trial routes may be ways of forcing further truth to come out. Again, however, the vast majority of atrocities were not committed by the army (still less the police). To get a larger truth-recovery process under way to deal with vertical violence, one of the parties engaged in 'armed struggle' in the past is going to have to break the deadlock by beginning a process of self-reflection or making the truth about past operations more public. This could be risky as its political enemies could use this in formation against it. At the same time, however - as the African National Congress proved when it undertook its own investigation into atrocities committed by its troops in training camps - such an approach might challenge one's opponents to begin also to come clean. It would, moreover, represent a hugely important signal, in the positive sense of the term, that a line was genuinely being drawn under the past - as against the 'that was then, this is now' stock response of today's paramilitary-linked politicians. But how can those who engaged in conflict - or those who still claim the conflict was not about them - be convinced that it is in their interests to admit to past complicity, omissions, commissions, misperceptions and denials? This takes enormous inward reflection. Acts of civic and political leadership can provide a model. When, for example, a senior cleric was asked by the Opsahl Commission on ways forward for Northern Ireland whether the Protestant churches should apologise for the discrimination experienced by the Catholic community under the unionist ancien régime, he fumbled in replying. A Scottish journalist whose family background was in the Communist Party, mimicking the latter's weasel words about Stalinism, commented ironically: 'Mistakes were made.' Such reflection on the past can also be discomfiting, contextualising as it does the individual responsibility rightly discussed above. It can result in an entire revision of simple lines demarcating 'good' from 'evil', the sheep from the goats, an unease which can even entail identity crises. Yet shaking up old boundaries in Northern Ireland is not only necessary: it also allows of a way in which all may believe they have something to gain from a society characterised by peace and a solidarity that stretches beyond roots. The agreement says that a peaceful and just society would be the true memorial to victims; all the more corrosive, therefore, that its protracted implementation has been against a backdrop of polarisation and continued, albeit lower-level, violence. At the time of writing, the agreement was once more subject to negotiations between the parties and governments. On the surface, these were about decommissioning, policing, security 'normalisation' and so on. But, as we explore the need for truth and justice in Northern Ireland, it becomes clear what has eaten away at the credibility of the agreement is the issue of responsibility.
'It is brilliant that everybody around this table would aim to move forward but the politicians do not seem to want to know and they do not seem to want to move forward. Until we find some arena where they feel comfortable enough to sit and listen and put their political agenda aside for just one day I think we're stuck.' Among unionists, there is an underlying sense of moral unease about the failure of certain paramilitaries to take responsibility for the hurt they have inflicted (and continue to inflict). Amongst republicans, there is unease about the failure of the state to come clean about the past, as well as the failure of the conservative middle class - John Hewitt's 'coasters' - to acknowledge its complicity in the perpetuation of social division. For those who claim the conflict was not about them - and for some victims anxious to cling to a cause for comfort - there is a fear that revisiting (mis)perceptions of the past may destabilise moral and social universes; many feel they have lost values that characterised their society and that governments have compromised under pressure from 'terrorists' who are not held to account. For theological nationalists, meanwhile, the agreement is seen as legitimising an executive that has no legitimacy unless sovereignty lies in Dublin. These attitudes will always tend to lead people to point the finger of blame - a focus on the antagonistic 'other' which consumes the spirit of the agreement: tolerance and dialogue. If the focus is exclusively introverted and based on own needs and wants - those of an individual or of an imagined community - it will be very difficult to make a transition towards a relatively peaceful society. Tolerance requires the reconstruction of the individual victim's and victimised communities' feelings of personal safety, and overcoming the fear that violent acts might recur. And dialogue - listening, not just what Damian Gorman has called 'waiting your turn' - is only possible when people see each other as fellow citizens, not adversaries. Clearly, therefore, there needs to be more emphasis on the long-term process of reconciliation rather than a short-term truth-seeking event or institution. Fundamental distrusts, half-truths and accusations across communities continue to seethe below the surface. These need to be voiced and addressed in structured ways in safe places. Voluntary organisations, as well as government, have a responsibility to create such avenues and places, be they through community groups or more structured forums. In terms of the issues of forgiveness and reconciliation - fraught terms, as we have seen - new relationships need to be built in the present if we are effectively to address the past. In fact, it may well be a misnomer to talk of reconciliation in some locales in Northern Ireland. The word reconciliation implies that there was conciliation at some point and that it was ruptured and needs to be repaired. But in some communities forging relationships with the other has yet to take place, let alone being reconciled one with another. Cross-community involvement and the enhancement of trust need to be the foundation upon which any policy for dealing with the past is built. But if reconciliation is a process, it can start even from bleak beginnings. What does need to be avoided is avoidance itself. Euphemistic phrases like 'community development' and 'peace-building', however well-intentioned, can mask the real challenges - often discomfiting, as indicated above - of cross-sectarian dialogue on controversial questions. The lack of shared understanding of where we are going, where we have come from and how we got here has created a situation of moral hazard. This is typified by the question: is nobody guilty, or are we all guilty? The questions of guilt and responsibility - from the person who pulled the trigger through to those who sanctioned such actions through commission or failing vigorously to oppose - have been pushed to the side as society in Northern Ireland has struggled to cope with the here-and-now and prevent further loss of life. The difficulty of being in a state of transition - where the old social rules no longer apply and new ones are being forged - is that it is no longer helpful to look at the past in absolute terms. Clearly, everybody has had a responsibility for what happened, and what will happen, but we have to face the fact that some may have had, and may have, more responsibility than others. And we need to continue the quest for truth on a number of levels. Similarly, while it is true that in some sense all of us have suffered over the last 30 years, it is an injustice to those who have been individually victimised not to recognise that they have suffered a great deal more. That means reconciliation is a complex process of trying to arrive at empathy and understanding, forgiveness and repentance on many different levels. Complex and morally fraught as this is, it is an inescapable process that all the people of Northern Ireland will have to undertake if we are adequately to come to terms with the violence of the past. Confusion, according to one of Brian Friel's characters, is not an ignoble condition. Or, as 'Belfast citizen' wrote to the Times at the outset of the 'troubles', 'Anyone who isn't confused here doesn't really understand what's going on.' This, strange as it sounds, is a healthy psychological state. It is healthy to avoid the certitudes that led us into battle in the past - healthy to abjure the fundamentalism of a single identity that can only be defined in antagonistic terms against another. It is healthy to under-mine the conviction and clarity of those who think it virtuous to argue over who is a victim and who is not, whilst those victimised do not have adequate support. It is only when our static views of the past are challenged that we will be able to go beyond the enemy images that have justified atrocities. This does not, however, mean that one can responsibly urge that 'confusion' simply be manifest and run unchecked. There is a need for strategic political leadership. This is not to say that all the wrongs in Northern Ireland were the fault of politicians, or to displace all responsibility for change on to them, but political leadership is a precondition of healing the wounds of the past. South Africa's process of reconciliation may have been flawed in many ways, but it was the leadership of President Mandela, F W de Klerk and others like Archbishop Desmond Tutu that gave the South African people hope and direction when the future seemed grim. At times, in Northern Ireland there seems to be the opposite tendency, continually to paint the future as dark and compromise as surrender - rather than a strategic choice made in the public interest. Thus, politicians need to be challenged to take a greater responsibility in thinking about how the past can be addressed, both at the social and individual levels. And civil society needs to play a more constructive (and united) advocacy role in challenging political leadership.
'The normal thing about justice is there is collective innocence and individual guilt. I don't believe that's the case in Northern Ireland. I fear that we have replaced it with refusing to accept any responsibility and, now that the paramilitaries have joined us ... we have collective innocence and individual innocence, which is catastrophic for the people who have suffered.' At times, many politicians appear to think that peace and functional governmental structures - obviously vital - will be sufficient to take the society forward. On the contrary, lessons from elsewhere in the world, where there has been protracted violence linked to the political context, teach us that every effort needs to be made continually to address the legacies of distrust, as well as the pain of victims. If politicians need to show greater leadership, they also need to begin to admit to their own failures in the past, without fear of the 'peace process' being completely derailed. Such acknowledgment can provide a good example for communities struggling to understand their own role in past conflicts. The idea of politicians, or some collection of people in this society, leading us towards a symbolic day of reconciliation, acknowledgment and apology is one worth exploring. The symbolic value of such events cannot be overestimated. Similarly, voluntary organisations need to take a more active interest in developing mechanisms to address past conflicts. This should happen within and between communities and help begin the process of reflection about all our misperceptions of the 'other' over the years. Politicians, and society at large, may also need to prepare themselves for the fact that the past will continue to raise its head. The recent attempts to prosecute Gen Augusto Pinochet, decades after his actions, the issue of reparations for acts during World War Two by Germans against Jews, and the conflict over the genocide of the aboriginal people of Australia are cases in point. On a less dramatic scale, in countries such as Brazil, Argentina and South Africa, victims' needs have still not gone away, even when many years have passed. It would thus be naïve to think that the needs of the 3,500 or so families who lost a loved one and the thousands of people injured in Northern Ireland could miraculously - or even with the maximum resources and the best of services - disappear in the short term. Like other countries wracked by political violence, Northern Ireland is in for the long haul in dealing with the impact of past violence. In the agreement there is a call for finding common denominators, and many have recognised the apparent symmetries in experience of suffering during the 'troubles'. Some, however, still see all violent acts simply as an offence against humanity. This view may stop people committing such acts, but it may also dehumanise those who have. A more inclusive perspective accepts inhumane acts as a foregone part of the conflict and gives an opportunity for both perpetrators and victims to move on with the acceptance of committed atrocities, while at the same time not trying to silence them. This more humanitarian approach does not compel individuals to understand or sympathise with the perceived 'other', but to tolerate and respect diversity. In the current fashion for identity politics it is often forgotten that for diversity to flourish there has to be a common denominator of tolerance - in the light of the current public blame-game, aided by ionised enemy-images, this is all the more important. It is an ambitious project, but some people working with victims and perpetrators in Northern Ireland who may once have felt there was a time for 'an eye for an eye' might now be minded to 'turn the other cheek' and accept a different truth. This approach stems from a commitment to humanity - and an acceptance that inhumanity is an inseparable part of it. Can there be forgiveness without acknowledgment of the inhumanity of oneself and of one's own side? Is it not necessary to admit to the ability to cause pain and to focus on the common inhumanity of people, along with their common humanity? From this point of view there would be less blaming, passing judgment and fighting for the moral high ground, and more focus on the political circumstances and the backgrounds of individuals, in order better to recognise what might have led them to conduct inhumane acts. This is not meant to justify violence, but rather to acknowledge that violence has been an integral part of the history of Northern Ireland and that, sooner or later, it has to be dealt with in a constructive way. A way of bringing in collective responsibility, along with the personal responsibility of the perpetrator, is to stress the importance of empathy. If everybody could recognise that they themselves or someone close to them would be capable of conducting so-called inhumane acts - and could explore the differences in perception of when a threat becomes serious enough for some to feel a pressure or responsibility to defend their 'own side' or retaliate for previous violations - then perhaps Northern Ireland could become a less 'troubled' society. This would allow for public rituals to take place where the different sides could accept moral responsibility for their part and initiate processes of forgiveness. Over time, this might even lead to reconciliation. This is a long process and many struggles will have to give way for a new society where people can coexist. The hardest struggle to give up might even be the struggle for recognition of victimhood: the moral high ground is a powerful position, once secured, and leaves no justifiable room for others to criticise. The layer upon layer of unfulfilled truth and justice, unexplored forgiveness and reconciliation, and much needed commemoration and remembering in Northern Ireland represents a long-term challenge, the outcome of which will never be certain. Many times we may find that we roll backwards. Yet without looking backwards we will not be able to go forward. Moreover, there is an underlying message of hope as well as humanity in these conclusions, sober though they are. It is that we do not need to wait for Northern Ireland's political class to agree - still less, for London, Dublin and Washington to agree for them - on an all-singing, all-dancing truth commission before we can make progress towards a future more reconciled to its past. In the end, such progress will largely be the product of a multitude of small, mutually-reinforcing acts, acts to which we all already have the capacity - indeed responsibility - as citizens to contribute. The papers presented in this report and the discussion they stimulated represent one of those small acts. Hopefully, they will open up more debate. Coupled with reflection, that is itself one way that we begin to share ideas as we endeavour to find a workable way to deal with the past. Bibliography Institute for War and Peace Reporting (2000), Balkan Crisis Report 185, October 13th, www.iwpr.net Kaldor, M (1999), New and Old Wars: Organized Violence in a Global Era, Cambridge: Polity Press O'Doherty, M (1998), The Trouble With Guns: Republican Strategy and the Provisional IRA, Belfast: Blackstaff Press
ContributorsSir Kenneth Bloomfield is a former head of the Northern Ireland civil service and author of two relevant reports for government, on the needs of victims in general and the issue of compensation in particular Karola Dillenburger is a chartered psychologist and social worker lecturing in the School of Social Work at Queen's University Belfast Brandon Hamber is a clinical psychologist and programme manager at the Centre for the Study of Violence and Reconciliation in Johannesburg, South Africa Dorte Kulle is a research associate of Democratic Dialogue and is associated with the Department of Ethnography and Social Anthropology at the University of Aarhus, Denmark Avila Kilmurray is director of the Northern Ireland Voluntary Trust Brian Lennon is director (acting) of Community Dialogue Duncan Morrow lectures in politics at the University of Ulster Sandra Peake is director of wave Trauma Centre Bill Rolston is a professor of sociology at the University of Ulster Marie Smyth is on the academic staff of the University of Ulster and has published widely on aspects of violent social division, including research ethics and methodologies Dave Wall was director of the Northern Ireland Association for the Care and Resettlement of Offenders and is now head of the Voluntary Activity Unit at Stormont Robin Wilson is director of Democratic Dialogue
PublicationsReports are £7.50stg each for individuals, £10 for institutions, £4 for unwaged/students; please add 10 per cent p&p. Discussion papers are £2 each, plus p&p. Briefing papers are free. Orders can be by letter, phone, fax or e-mail; cheques are payable to Democratic Dialogue. ReportsReport 1: New Thinking for New Times Report 2: Social Exclusion, Social Inclusion Report 3: Reconstituting Politics Report 4: Power, Politics, Positionings Women in Northern Ireland Report 5: Continentally Challenged Securing Northern Ireland's Place in the European Union Report 6: Politics The Next Generation Report 7: With All Due Respect Pluralism and Parity of Esteem Report 8: Politics in Public Freedom of Assembly and the Right to Protest Report 9: New Order International Models of Peace and Reconciliation Report 10: Hard Choices Policy Autonomy and Priority-setting in Public Expenditure Report 11: No Frontiers North-South Integration in Ireland Report 12: Independent Intervention Monitoring the Police, Parades and Public Order Discussion papersMedia and Intrastate Conflict in Northern Ireland Making 'consent' mutual Making democracy work Economic governance international experiences: a new direction for Northern Ireland Two-tier policing a middle way for Northern Ireland? Elections in Northern Ireland systems for stability and success Irish nationalisms in perspective The Civic Forum a consultation document from New Agenda Reinventing government a once-only opportunity Scotland's parliament lessons for Northern Ireland The Civic Forum and Negotiated Governance Beyond either-or the politics of 'and' in ethno-nationalist conflicts Making a Difference: preparing the Programme for Government Flagging Concern: the controversy over flags and emblems (July 2000) Order on Policing: resolving the impasse over the Patten report (October 2000) Briefing papersStructurally Unsound: the Northern Ireland bids for further EU monies (March 2000) The Criminal Justice Review: a response (October 2000) The Future of Selection: verdict of a 'young citizens' jury' on the 11+ (November 2000) The Northern Ireland Assembly and Women: assessing the gender deficit (Dec 2000)
* Out of print: photocopies can be supplied or the text downloaded from the DD web site.
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