06/12/14

The Ulster Human Rights Watch is primarily dedicated to providing assistance to the victims of terrorism and believes that victims of terrorism, i.e. people who have never been engaged directly or indirectly in any form of terrorist activity and whose fundamental human rights have been violated, should be considered as a particular category of victims of crime.

The approach taken by the Ulster Human Rights Watch has been considered in the light of guidance provided by the European Union and the United Nations.

The Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings defines a victim as:

“a natural person who has suffered harm, including physical and mental injury … directly caused by acts or omissions that are in violation of the criminal law …”.

If a terrorist act is committed and is sanctioned by law as a criminal offence then the person suffering harm is a victim. Although this definition does not refer specifically to victims of terrorism, it excludes the possibility of a terrorist – who violates criminal law – being equated with a victim of terrorism.

The UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by General Assembly resolution of 29 November 1985 has the merit of drawing a distinction between the victims of crime and the victims of abuse of power.

The definition of victims of crime that it provides is equivalent to that given by the Council Framework Decision, but it also includes the immediate family or dependants of the direct victim as well as persons who have suffered harm while intervening to assist victims in distress or to prevent victimization. Such a definition would apply to any victims and would also include victims of terrorism. It could not apply to terrorists, particularly those killed by security forces while they were perpetrating a terrorist act.

The other category of victims includes those who, having engaged in criminal activities, have suffered as a result of violations of internationally recognised norms relating to human rights. In this case the perpetrator is not a victim of crime but becomes a victim if his/her rights have been violated under the European Convention on Human Rights or another internationally binding legal instrument. For example, a person who has been tried, convicted and jailed for a terrorist act in breach of criminal law but whose right to private life has been violated as a result of correspondence being unlawfully interfered with, could be classified as a victim of a violation of human rights law.

These two categories of victims are not to be confused to the prejudice of the victims of terrorism or to the prejudice of the state in its fight against terrorism.

The Victims and Survivors (Northern Ireland) Order 2006 does not provide a definition of victim but an “interpretation” concerning an individual who would appear to the Commissioner for Victims and Survivors for Northern Ireland to be a “victim and survivor” . The interpretation of victim and survivor, which is interpreted as equating a perpetrator who violates criminal law with a victim of terrorism, does not appear to be compatible with international instruments, such as the Council Framework Decision and the UN’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

The interpretation given in the NI Order 2006 encompasses all categories of victims that have been affected by or related to the campaign of terrorism in Northern Ireland, including victims of terrorism, so the definition of victims of terrorism proposed by the UHRW is inherently part of that interpretation and reads as follows:

“A victim of terrorism is:

1. A natural person who has been killed as the direct result of a terrorist act and was never engaged in any form of terrorist activity;

The close relative or a dependant of such a person;

2. A natural person who has suffered physically and/or psychologically as the direct result of a terrorist act and was never engaged in any form of terrorist activity;

The close relative or a dependant of such a person;

3. A natural person who has been killed or has suffered physically or psychologically as a result of finding him/herself in proximity to a terrorist act being committed or who has been wrongly associated with the perpetration of such an act;

4. A natural person who has suffered physically and psychologically as a result of bringing assistance to a victim of a terrorist act.”

The “interpretation” provided in the Northern Ireland Order 2006 should be replaced by a proper definition of victims which should differentiate the various categories of victims. This should be done in compliance with international instruments and also in order to provide the appropriate remedies that would address the needs of each category of victims.

Victims of terrorism have particular needs stemming from the physical and/or mental injuries they have suffered, which must be provided for by the State by way of compensation schemes, services and/or legal processes so that their human rights may be upheld and respected.

Those who engage in criminality, such as acts of terrorism, may suffer as a result of engaging in such activities. They should be given the appropriate support and services they require so that their need to reform is met and that in future they respect their fellow human beings, particularly the right to life of others, within the context of a democratic society.

It is suggested that a future European definition of victim should define what a victim of terrorism is. This definition should not include perpetrators, whose human rights would at all times continue to be upheld and respected, in compliance with the European Convention on Human Rights.