Deciding which victims should be eligible for a pension following the Troubles.
As the debate on dealing with the past rumbles on, Dr Luke Moffett reflects on the recommendation for a "pension" for all those killed in the Troubles and examines the practice in other countries to provide some insights in how to tackle this issue and asks who should be eligible for such payments?
Reparations have become a dirty word in Northern Ireland, after the controversy around the Consultative Group on the Past recommendation for a recognition payment or pension for all those killed in the Troubles. Despite this, numerous other states and international courts continue to order reparations to remedy the harm suffered by victims of human rights violations and international crimes. There is hope we are slowly moving towards reparations being a vital piece of the “solving the dealing with the past puzzle”, with the proposed pension for seriously injured victims, but difficulty remains as to who would benefit from it. A pension for those seriously injured would serve to ensure financial security and freedom to spend the money as they see fit to ease their everyday pain and disability, rather than being dependent on discretionary benefits, which increasingly face welfare cuts.
Reparations are meant to alleviate the daily suffering of victims who continue to live with the consequences of the past by officially acknowledging their harm and providing appropriate remedies. For the State such reparations, even for violence committed by terrorist groups, are about ensuring social solidarity with the victims, that as a society we empathise with victims’ plight and seek to ease their suffering in building a shared future. Although there has been more attention given to whether or not victimised-perpetrators should be eligible for a pension, the scope of eligible victims needs to be clarified to ensure that the redress goes to those who most need it and appropriate remedies are given to victims. Issues of entitlement of the larger group of affected victims of psychological injuries will need to be dealt with, as will the current age requirements in the draft bill of being over 55; this would mean that for children and teenagers seriously injured in the Troubles in the 1970s-1990s, they would have to wait until they are 55 years-old before being able to claim their pension.
Victims of physical or psychological injury
Most reparations programmes in other countries dealing with terrorism or past atrocities exclude compensation or pensions for those with psychological injuries, concentrating such monetary awards on those killed or physically injured. This is the case with the 9/11 Victim Compensation Fund, which was limited to those killed or physically injured as a result of the attacks in New York and Pennsylvania. In Spain, the pension for victims of terrorist acts is available for those who have suffered physical injury amounting to a disability, with varying degrees of disability determining the amount of award. That said, it also includes compensation for those killed as well as psychological assistance for victims and family members who have suffered mental trauma. Pensions and psychological assistance for those injured is in addition provided with educational bursaries or fee waivers for university courses.
Similarly in Tunisia a monthly pension is available to those physically injured and to the spouse or children of those killed. This is accompanied by free health care and public transport for those physically injured. In Northern Ireland, while free healthcare and motability services are available, other forms of services are funded through the Victims and Survivors Service (VSS).
In other countries, compensation for physical harm is often prioritised over psychological suffering. This can be perhaps explained as reparations trying to provide the most appropriate remedy. Those with serious physical injuries were unlikely to build up a work pension or return to their jobs after being injured, and now require full-time carers and mobility aids. Monetary payments are the most appropriate means to redress physical harm, by providing money to allow new opportunities to victims. Specialised psychological rehabilitation is more appropriate for those with psychological harm, such as through the Mental Trauma Service, which would be more accessible through universal point of entry for those that need it, rather than the application process of a pension.
Prioritising physical injury can be, in more crass terms, about concentrating resources on those who suffer the most. While serious thought needs to be given to some form of reparations to those bereaved, seriously injured victims are ‘top of the list’ in terms of physical day-to-day needs. By including victims who are psychologically injured will increase the scope of eligible victims, as research commissioned by the Commission for Victims and Survivors puts the level of those who suffer from PTSD in Northern Ireland as 5-8% of the population. This large number of potential victims of psychological harm risks reducing the total pot of money available for each individual beneficiary, or making the pension scheme unaffordable.
Consideration needs to be given also as to whether excluding those with psychological injury from the proposed scheme can be justified under the Disability Discrimination Act 1995 as not being discriminatory on the grounds of ensuring appropriate reparations to physically and psychologically injured victims. The Victims and Survivors (Northern Ireland) Order 2006 definition of ‘victims and survivors’ includes both those who have been ‘physically or psychologically injured as a result of, or in consequence of, a conflict-related incident’. Psychologically injured includes those who:
- witnessed a conflict-related incident or the consequences of such an incident; or
- provided medical or other emergency assistance to an individual in connection with a conflict-related incident.
However, this definition is the basis of the work of the Commission for Victims and Survivors and is too broad for a feasible reparations programme. The VSS already provides payments to those who suffer chronic pain as a result of a conflict-related injury, including those who have a psychological injury. That said, psychological injuries can amount to disability for the purposes of criminal injury compensation schemes, as held by the Court of Appeal in the Hoy case, where a psychiatrist or clinical psychologist confirms that the individual has a mental illness, which is disabling, and as a direct result of a crime. This would be a very high standard for an individual who suffered from a psychological injury to prove. It would also require standards to be drawn as to the level of disablement, as there is with physical injuries. However, this case is based on the language of the Criminal Injuries Compensation (Northern Ireland) Order 2002 that refers to ‘personal’ and not just physical injury.
The current Criminal Injury Compensation Scheme 2009 includes those with ‘a disabling mental illness confirmed by psychiatric diagnosis’. This mental injury is qualified as being the direct result of a physical injury or sexual offence, or has to satisfy one of the following categories:
- being put in reasonable fear of immediate physical harm to themselves; or
- in a close relationship of love and affection with another person who sustained physical and/or mental injury and the relationship still exists and witnesses the injury or is closely involved in its immediate aftermath.
a) ‘The claimant suffered physical injury(s) as a result of Troubles related incident(s);
b) The injury(s) has resulted in disablement.’
At what age should a victim be eligible for a pension?
All the laws examined have no age limit for a victim to claim a pension, the only exception is in Chile where children of those who suffered human rights violations are eligible beneficiaries until aged 25 alongside their surviving parent, but those children who suffer disability get it for life. The absence of an age requirement in many of these laws reflects that harm, rather than age, is the attention of the law. Atrocities committed against victims are arbitrary in the age at which they strike, many of whom have been seeking redress for years. Introducing a reparations bill to alleviate the suffering of those seriously injured victims and telling those under the age of 55 years old to wait longer seems callous and unnecessary if the intention of the law is to remedy harm.
Although we call these monthly payments ‘pensions’, they are not about retirement age, but rather about responding to harm on a committed monthly basis to ensure their future financial security. Those who are under the age of 55 are unlikely to be in large numbers as long as they satisfy the requirements of physical injury that amount to disablement as a result of a Troubles related incident(s).
Reparations are a way to make amends for past wrongs alongside other truth and justice processes to comprehensively deal with the past. Nearly six years on from the Consultative Group on the Past and the recognition payment, hopefully we as a society in Northern Ireland have matured to accept that reparations are a necessary and important part of alleviating the suffering of those who are seriously injured and remove the burden from injured victims in claiming compensation through the courts.