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The recommendation brought forward recently by Commissioner for Victims and Survivors, Judith Thompson, that terrorists injured by their own violence should be included in pensions for troubles victims, has brought widespread condemnation from innocent victims and the organisations representing them, including Ulster Human Rights Watch. Indeed we have been vocal and clear in expressing this concern in the media and, most recently, during our meeting with NIO Minister of State, Nick Hurd MP, when we also stressed our lack of faith in government assurances on this matter, which have yet to be enshrined in legislation.

Unfortunately the position taken by Judith Thompson, while being morally indefensible, sadly is legally defensible. This is because (up to the present moment) no distinction has been made in Northern Ireland at statutory level between innocent victims of terrorist violence, and perpetrators of the same violence, who while attempting to commit mass murder may have hurt themselves in the process.

And this brings us to the crux of the matter: the legislation – namely the Victims and Survivors (Northern Ireland) Order 2006, which provides the statutory interpretation of a victim in the Troubles context. This is a legal interpretation that stands alone globally in failing to recognise the moral dimension of victimhood, and the need for victims to be acknowledged as distinct and treated differently to the psychopathic terrorists who inflicted their suffering.

In fact, it is not only inconsistent with international norms, significantly it is inconsistent with other UK legislation, including the Justice Act (Northern Ireland) 2015, which brought into force EU Directive 2012/29/EU, which establishes minimum standards on the rights, support, and protection of victims of crime, and to which all UK legislation, including the offending 2006 Order, should conform.

So at the root of all this, victims of terrorism have been granted a statutory victim definition which is not fit for purpose, and which is uniquely appalling. Commissioner Thompson has, unsurprisingly, now brought forward pension proposals in line with this approach and understandably the instant reaction to these recommendations  has been for many organisations to publicly turning their fire on Commissioner Thompson, and demand her resignation.

We fully agree that Commissioner Thompson is rightly due criticism, not least for failing to recognise or to articulate effectively the legitimate disgust of victims of terrorism on being categorised together with murderers and criminals. She has also  failed to advocate for the necessary review of Article 3 of the Victims and Survivors (Northern Ireland) Order 2006, to achieve a definition of victims and survivors that complies with the definition of victim of crime provided in the Justice Act (Northern Ireland) 2015 and EU Directive 2012/29/EU.

However, as Commissioner Thompson’ s contract now comes to an end (and it is unlikely that she will be reappointed for a further term, due to the obvious loss of confidence in her position by so many victims and survivors), we believe the emphasis must continue to be focused on attacking the ‘interpretation’ of ‘victim and survivor’ in the 2006 Order, and that innocent victims of terrorism focus every effort to achieve real change by campaigning to see the reform of the Victims and Survivors (Northern Ireland) Order 2006 by bringing it into conformity with the rest of the legislation in the UK and the EU directive.

Achieving reform of the Statutory Instrument 2006 would ensure any present or future Commissioner’s representations and recommendations would have to reflect a true and accurate definition of victims and survivors – perpetrators NOT included – and that is where our focus must and will remain.

Published in the Newsletter 29/08/2019. Click here to view.

Meeting with Nicholas Hurd, Minister of State, in Stormont House

19-08-2019

Ulster Human Rights Watch Advocacy Service is calling today for ‘a completely new approach’ to dealing with the legacy of the past.

The victims and survivors service, which is publicly funded and a registered charity, told the Minister of State, Nick Hurd MP, that proposed measures contained previously in the Stormont House Agreement and recently republished following a consultation exercise by the N.I.O. would serve to ‘launder’ the actions of terrorists and do a great disservice to those who suffered and society at large.

At their Stormont House meeting, Ulster Human Rights Watch’s Advocacy Service Manager, Axel Schmidt, said the government had to re-think its plans on how to deal with the past if it is to avoid an unbalanced and one-sided system that favours the bomber and gunman.

 Mr Schmidt said: “During a positive and productive meeting with the new Minister we set out our view that proposals on a Historical Investigations Unit will be anything but fair. It is unconscionable to think you can have parity between the terrorist and the victim or members of the security forces who, over a period of nearly four decades have protected the whole of society throughout Northern Ireland.

“The present proposal is heavily biased against police officers and will lead to one-sided investigations against the security forces. Security forces keep formal records, terrorists don’t. They can pick and choose to suit their warped agenda and can readily destroy and have done so in the past, any incriminating evidence.

“The inclusion of what is termed ‘non-criminal police misconduct’ means officers could be investigated twice by the proposed HIU. Consequently this means that officers who protected the community against terrorism and have long since retired could be hauled back into the spotlight to be investigated by the HIU, causing, once again, great stress and trauma to both them and their families.”

Ulster Human Rights Watch Advocacy Service also set out the reasons why it is opposed to an Independent commission on Information Retrieval (ICIR) and the Oral History Archive (OHA), which are tailor-made for terrorists to tell their stories without fear of prosecution, and also submitted to Minister Hurd detailed alternative proposals which the organisation believe would be a fair and equitable solution to this intractable problem.

Mr Schmidt added: “The Ulster Human Rights Watch (UHRW) strongly believes that dealing with the legacy of the past requires a completely new approach, with the clear three-fold objectives of upholding the rights of all innocent victims of terrorism, respecting former members of the security forces and strengthening the hand of the State in the fight against terrorism.”

Perpetrators of terrorist atrocities, who have injured, maimed and murdered innocent people could hardly dream of a better status under the law, as to be put on an equal footing with their victims.

Hence, the deep concern following the recently publicised NIO proposals analysis of the 17,000 responses that were received as a result of the consultation on ‘Addressing the Legacy of Northern Ireland’s Past’, which ended on October 5 last.

Among the many issues raised by respondents, two are of particular unease to the Ulster Human Rights Watch (UHRW) Advocacy Service and other victims and survivors groups: the definition of a victim and the unfairness of the proposed institutions, particularly the Historical Investigation Unit (HIU), towards former members of the police and armed forces.

The present Victims and Survivors (Northern Ireland) Order 2006 ‘interpretation’ of a victim and survivor is all the more unacceptable as it runs contrary to the EU Directive 2012 (2012/29/EU) that obliges the United Kingdom to bring its own legislation into compliance with it.

The EU Directive provides a ‘definition’ of a ‘victim of crime’, namely ‘a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence’.

The definition, which also applies to victims of terrorism but excludes perpetrators, has been implemented in Northern Ireland by the Justice Act (Northern Ireland) 2015 (Section 29).

However, surprisingly, the Victims and Survivors (Northern Ireland) Order 2006 has not been revised to keep in step with the Justice Act and consequently appears to be in breach of the EU Directive definition.

This issue must be urgently addressed by the Secretary of State for Northern Ireland as a matter of priority. A review of the Order 2006 providing a definition of a victim of crime, including a victim of terrorism, that is compliant with the EU Directive, in the opinion of the Ulster Human Rights Watch (UHRW), would dispel immediately the confusion that has been maintained for so long between genuine victims and perpetrators.

It would also enable significant progress to be made in dealing with the past in Northern Ireland.

This equivalence between perpetrators and their victims in the Order 2006 is echoed in the proposed Stormont House Agreement institutions by a parity of treatment between terrorists and members of the security forces.

The distrust expressed by many consultation respondents comes as a result of the Historical Investigation Unit (HIU) proposals being undoubtedly biased against former members of the security forces and most particularly against police officers. Inevitability, as a result, there will be an increase in one-sided investigations against the security forces who keep records of their actions which can be accessed and used against them in contrast with the terrorists who don’t keep formal records and destroy incriminating evidence.

The position of former members of the security forces will be made even worse since the HIU will have the power to carry out, not only criminal investigations, but also non-criminal police misconduct investigations.

This will be patently both unfair and degrading for police officers who may be investigated twice by the same body, while terrorists can only be investigated once for criminal activities.

Consequently those who committed themselves to protecting the community against terrorism and have long since retired may be hauled back into the spotlight to be investigated by the HIU, causing great stress and trauma to both them and their families.

Such investigations will, without doubt, generate stories that will disproportionately draw attention to the actions of the security forces while leaving in oblivion the atrocities carried out by terrorist organisations.

Security forces will have limited means of defending themselves against untrue or biased stories being told against them.

In addition their position will be further aggravated by narratives that will emerge from the Independent Commission on Information Retrieval (ICIR) and the Oral History Archive (OHA), which are tailor made, intentionally or not, for terrorists to tell their stories, while protected from any form of prosecution.

There is little doubt that terrorists and their sympathisers will use the opportunity provided by these three proposed bodies, the HIU, the ICIR and the OHA to blacken the reputation of the security forces, justify their engagement in terrorist activities and glorify terrorism with a view to rewriting the history of Northern Ireland.

They will be assisted in doing so, perhaps unwittingly, by the Implementation and Reconciliation Group (IRG) whose mandate will be to prepare the ground for a final report, based on summary reports of these bodies, and to be delivered by academics after a period of five years.

The Ulster Human Rights Watch (UHRW) strongly believes that dealing with the legacy of the past requires a completely new approach, with the clear three-fold objectives of upholding the rights of victims of terrorism, respecting former members of the security forces and strengthening the hand of the State in the fight against terrorism.

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