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Closing the gap: symbolic reparations and armed groups

Published online by Cambridge University Press:  08 June 2012

Ron Dudai
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Abstract

The question of whether non-state armed groups could and should provide reparations to their victims has been largely overlooked. This article explores this gap, with a particular focus on symbolic reparations, such as acknowledgement of the truth and apologies. It argues that, while the question is fraught with legal, conceptual, and practical difficulties, there are some circumstances in which armed groups are capable of providing measures of reparations to their victims. The article identifies the issue of attacks on informers as one potential area for armed groups to provide such measures, and demonstrates that in a few cases armed groups have already engaged in actions that could be seen as analogous to symbolic reparations. The article's main case study is provided by recent actions by the Irish Republican Army (IRA) in relation to its past attacks against suspected informers.

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Articles
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International Review of the Red Cross , Volume 93 , Issue 883: Engaging armed groups , September 2011 , pp. 783 - 808
Copyright
Copyright © International Committee of the Red Cross 2012

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80 United Nations Human Rights Council, above note 22, para. 8.

81 See e.g. Moloney, Ed, Voices from The Grave: Two Men's War in Ireland, Public Affairs, New York, 2010, pp. 111–132Google Scholar.

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83 See e.g. Kim Sengupta, ‘Families appeal to IRA over graves’, in The Independent, 8 September 1998.

84 See ‘Help us find bodies – IRA’, in BBC News, 8 December 1998, available at: http://news.bbc.co.uk/1/hi/events/northern_ireland/latest_news/230227.stm (last visited 20 January 2012); ‘IRA continues search for missing bodies’, in An Phoblacht, 10 December 1998, available at: http://www.anphoblacht.com/news/detail/31650 (last visited 20 January 2012).

85 ‘IRA investigation locates grave sites’, in An Phoblacht, 1 April 1999, available at: http://www.anphoblacht.com/news/detail/32141 (last visited 20 January 2012). The IRA later admitted responsibility for the disappearances of two other people.

86 D. McKittrick, above note 82.

87 The actual recovery was carried out by a special body, the Independent Commission for the Location of Victims Remains (ICLVR), which was established by the British and Irish governments to co-ordinate the search for the disappeared. According to the legislation setting up the ICLVR, information passed in relation to locations of disappeared will be inadmissible in courts and forensic examination of the bodies will be limited to identifying the individuals and will not be used in police investigation. This was set up in two parallel legalizations, in the UK and in the Republic of Ireland: the Northern Ireland (Location of Victims’ Remains Act) 1999 (in the UK) and the Criminal Justice (Location of Victims’ Remains Act) 1999 (in the Irish Republic).

88 See Sinn Féin statement, available at: http://www.sinnfein.ie/contents/15239 (last visited 8 August 2010).

89 ‘Republican efforts continue to retrieve missing bodies’, in An Phoblacht, 13 July 2006, available at: http://www.anphoblacht.com/news/detail/15069 (last visited 20 January 2012); ‘IRA “was wrong” over bodies issue’, in BBC News, 11 July 2006, available at: http://news.bbc.co.uk/1/hi/northern_ireland/5170594.stm (last visited 20 January 2012).

90 See updated details on the ICLVR website, available at: http://www.iclvr.ie/en/ICLVR/Pages/TheDisappeared (last visited 1 September 2010). Many of the bodies were secretly buried in beaches, and the shifting and difficult terrain meant that the location of bodies has been difficult even when information was passed from the IRA. A former senior police officer who directs the ICLVR's investigative forensic work has confirmed that the information received has been mostly accurate and of high quality: see ‘Interview with Geoff Knupfer’, in BBC News, available at: http://news.bbc.co.uk/1/hi/northern_ireland/8020817.stm (last visited 1 September 2010).

91 Basic Principles, Art. 22(b).

92 Ibid., Art. 22(c).

93 Ibid., Art. 22(e).

94 McEvoy, Kieran and Conway, Heather, ‘The dead, the law and the politics of the past’, in Journal of Law and Society, Vol. 31, No. 4, 2004, p. 560CrossRefGoogle Scholar.

95 Basic Principles, Art. 22(d).

96 OHCHR, above note 24, p. 25.

97 An example of this type of reparation is the case of Juan Manuel Contreras San Martín et al. v. Chile, in the Inter-American Court of Human Rights, where, as a form of reparation for individuals wrongly convicted of crimes, the government has agreed in a friendly settlement: ‘[t]o publicly provide reparation to the victims before their community by means by an act of the Regional Government duly disseminated by the mass media, designed to restore their reputation and honor that had been certainly damaged by the judicial decisions that once harmed them’. Inter-American Court of Human Rights, Juan Manuel Contreras San Martín et al. v. Chile, Case 11.715, Report No. 32/02, 12 March 2002, para. 14.

98 F. Mégret, above note 23.

99 There is some overlap with the issue of the disappeared, but most individuals killed by the IRA as alleged informers were not disappeared. On the killings of informers by the IRA, see e.g. Moloney, Ed, A Secret History of the IRA, 2nd edition, Penguin, London, 2007Google Scholar.

100 Toolis, Kevin, Rebel Hearts: Journeys within the IRA's Soul, Picador, London, 1995, p. 194Google Scholar; R. Dudai, above note 79.

101 McKay, Susan, Bear in Mind These Dead, Faber and Faber, London, 2009, p. 235Google Scholar.

102 Ardoyne Commemoration Project, Ardoyne: The Untold Truth, Beyond the Pale Publications, Belfast, 2002, p. 367Google Scholar.

103 In an interview with the author, an ex-combatant and community activist said that: ‘When somebody was outed as an informer, the families felt themselves distanced from the republican community, because it was the republican community that killed their loved ones – but they were supposed to be part of it. They partly withdrew, because of the shame. The civilian population, especially young adults, didn't help because they inflicted a lot of cruelty on them’. Interview in Belfast, April 2009.

104 S. McKay, above note 101, p. 235.

105 Interview with ex-combatant, Belfast, August 2010.

106 Interview with ex-combatant, Belfast, August 2010. In the interview, he explained further the dynamics behind such pressure from republicans: ‘There's a tendency in a conflict situation that your first priority is to protect the army, and everything else is secondary. That happened and the leadership wasn't questioned. Like any other army the IRA wasn't a democratic organization. It's only when you're coming out of conflict that the possibility opens up to look at previous actions.’

107 Rosie Cowan, ‘He did the IRA's dirty work for 25 years – and was paid £80,000 a year by the government’, in The Guardian, 12 May 2003.

108 Jim Cusack, ‘Terror chiefs say “Sorry” to families of slain informers’, in The Independent, 5 October 2003.

109 Normally by way of a statement from the IRA published in the republican weekly An Phoblacht, usually signed by the codename P. O'Neill, the traditional code attesting to the authenticity of statements from the IRA.

110 ‘IRA Statement’, in An Phoblacht, 25 September 2003, available at: http://www.anphoblacht.com/news/detail/1407 (last visited 20 January 2012).

111 J. Cusack, above note 108.

112 ‘IRA apology’, in An Phoblacht, 5 April 2007, available at: http://www.anphoblacht.com/news/detail/18563 (last visited 20 January 2012).

113 ‘15-year-old Bernard Teggart was not an informer’, in An Phoblacht, 6 August 2009, available at: http://www.anphoblacht.com/news/detail/38660 (last visited 20 January 2012).

114 See e.g. ‘Killed for being an informer, but it was just a lie’, in Belfast Telegraph, 25 September 2010.

115 Basic Principles, Art. 22(d).

116 In addition, another consideration could be that campaigning for armed groups to provide symbolic reparations could also be a method of publicly ‘shaming’ groups that commit abuses.

117 ‘Volunteer cleared in IRA probe: Lenadoon man was not paid informer, family is told after in-depth inquiry’, in Irelandclick.com, 25 September 2003, available at: http://www.nuzhound.com/articles/Irelandclick/arts2003/sep25_IRA_volunteer_cleared.php (last visited 8 August 2010).

118 ‘Statement from the Braniff family in Belfast’, in An Phoblacht, 25 September 2003, available at: http://www.anphoblacht.com/news/detail/1407 (last visited 20 January 2012). See also e.g. Suzanne McGonagle, ‘Murdered teen's family welcome admission he was not an informer’, in Irish News, 7 August 2009.

119 IRA statement from 16 July 2002. The full text is available at: http://cain.ulst.ac.uk/events/peace/docs/ira160702.htm (last visited 8 August 2010).

120 The girl was killed by a stray bullet from an IRA unit shooting at a British army patrol. The IRA at the time claimed that she was killed by British Army bullets and even later claimed that it had killed a soldier in retaliation. See Eamonn MacDermott, ‘IRA apologise for death of Derry schoolgirl’, in Derry Journal, 24 June 2005. The full text of the IRA 2005 statement is available at: http://cain.ulst.ac.uk/othelem/organ/ira/ira230605.htm (last visited 8 August 2011).

121 ‘IRA apology’, in An Phoblacht, 13 April 2006, available at: http://www.anphoblacht.com/news/detail/13838 (last visited 20 January 2012).

122 ‘IRA offers apology’, in An Phoblacht, 6 September 2007, available at: http://www.anphoblacht.com/news/detail/20561 (last visited 20 January 2012).

123 See e.g. A.-M. La Rosa and C. Wuerzner, above note 4, p. 333.

124 See e.g. African National Congress National Executive Committee's Response to the Motsuenyane Commission's Report, 29 August 1993.

125 Unlike some recent codes of conduct that include explicit references to IHL or human rights, the IRA's code, often referred to as the ‘Green Book’, has no such references. It does contain a rudimentary procedural system of court martial for investigations and punishments of members. Though theoretically confidential, the Green Book was, for example, published in an annex in Martin Dillon, The Dirty War, Hutchinson, London, 1990.

126 ‘IRA apology’, 5 April 2007, above note 112.

127 ‘IRA statement’, 25 September 2003, above note 110.

128 Interview with ex-combatant, Belfast, 31 August 2010.

129 See contemporary condemnation of informer killings by the IRA in Human Rights Watch, Northern Ireland: Human Rights Abuses by all Sides, 1993, and Amnesty International, Political Killings in Northern Ireland, 1994.

130 A similar and perhaps even stronger case can be made in relation to de facto states or ‘state-like entities’, such as South Ossetia or Somaliland.

131 M. Sassòli, above note 3.

132 For example, Zegveld argued that ‘opposition groups which fail to achieve their goals typically disintegrate and disappear after the conflict’: L. Zegveld, above note 4, p. 156; and see also J. Kleffner, above note 32, p. 265.

133 This is also a result of the fact that many transitions out of internal, identity-based conflicts can be long, complex, and non-linear. See Campbell, Colm and Ní Aoláin, Fionnuala, ‘The paradox of transition in conflicted democracies’, in Human Rights Quarterly, Vol. 27, 2005, pp. 172–213Google Scholar.

134 Beck, Teresa, ‘Staging society: sources of loyalty in the Angolan UNITA’, in Contemporary Security Policy, Vol. 30, 2009, pp. 343–355CrossRefGoogle Scholar.

135 Ibid., p. 344.