Published in July 2018.
This module is a resource for lecturers
Domestic criminal law
At the domestic level, some national systems, especially criminal justice systems, already have well developed legislation and mechanisms for compensating the victims of terrorist attacks. Indeed, State practice in many countries suggests the emergence of a regional rule on the provision of victims' redress in case of violent crimes which whilst not expressly for victims of terrorist crimes would include them also.
Of note here, some national laws governing terrorism offences reflect the impact upon victims within their sentencing approaches of convicted terrorists.
Examples of national legislation on sentencing*
Cape Verde Penal Code 2003
If the homicide is committed (a) using poison, torture, asphyxiation, fire, explosives or any other insidious means, or in any way that transforms the crime into a crime of public imperilment, or using any other act of cruelty to increase the victim's suffering,
3. The minimum and maximum penalties referred to in the preceding paragraphs shall be increased by one third if the following circumstances apply with respect to the depriving of the person of his liberty: (a) if it results in a serious offence against the integrity of the victim, in the lasting illness of the victim or in the suicide of the victim as a consequence of the deed, of the conditions in which the victim is held or of the withholding of care by the perpetrator.
Rwanda Penal Code (adopted through Decree-Law No. 21/77 of 18 August 1977)**
Where the acts of torture have resulted in the victim's death, the perpetrator shall be sentenced to death. Whoever has provided the premises used for the detention or sequestration shall be liable to the same punishment.
Togolese Penal Code on sentencing hostage-taking
Pakistan: The Anti Terrorism Act 1997
1. Any [money or other property] to which a forfeiture order under Sections 11R and 11S applies, along with [any addition, return,] profit and loss accrued, shall be deposited into a special fund to be notified by the Federal Government:
a. After the expiry of the limitation period within which an appeal against the forfeiture order may be brought under Section 11S (2), or
b. Where an appeal brought under Section 11S has been determined and disposed of.
2. Any fund constituted by the Federal Government under sub-section (1) may also be used to compensate victims of acts of terrorism or in the case of deceased victims, their dependents.
3. The Federal Government may, be rules made under this Act, prescribe the manner of administration of the fund and management or disposal of the money or property forfeited under this Act.
* UNODC (2008). A Review of the Legal Regime against Terrorism in West and Central Africa . New York: United Nations.
** Under review by the Rwanda Law Reform Commission since 2015 with a view of being updated. See, e.g., Kwibuka, Eugene (2017). Parliament agrees to Penal Code amendment. Newtimes, 19 October.
National assistance schemes for victims
As part of the move by the international community towards more victim-centred approaches, there has been "a pledge by States to consider putting in place, on a voluntary basis, national systems of assistance that would promote the needs of victims of terrorism and their families and facilitate the normalization of their lives" (General Assembly, Human Rights Council report 24/47, para. 55). These may take many different forms, such as victims support organizations, or domestic compensation schemes for victims of terrorism. Such schemes can be especially important to victims since generally, even if those terrorists involved are apprehended, prosecuted and convicted they will have little or nothing in the way of personal assets with which to pay compensation. Therefore, often the State will need to assist, which can be done in different ways. A few examples of approaches are outlined in the 'interest box' below.
National compensation and reparations models (1*)
These are some examples of national approaches to compensation and reparation schemes, illustrating the diversity of approaches adopted by States.
In 2004, legislation was adopted entitled "New norms in favour of victims of terrorism and of massacres of similar matrix". (2*) This legislative instrument provides for the monetary compensation of all victims of terrorist and similar acts and their families, regardless of their nationality, whether these acts were committed in Italy (for events occurred from 1961 onwards) or abroad (for events involving Italian victims, occurred from 2003 onwards).
The concept of 'victim' is defined widely to include "the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization". (Principle IV(8)).
Provision is made in the form of a pension, coverage of medical expenses of those who suffered permanent disability because of terrorist attacks, as well as for psychological assistance.
A 'Special Fund' exists from which victims are compensated. This compensation model is voluntary and ad hoc based on the objective suffering of victims; it is not legally enforceable since it is not enshrined in national law.
The legal basis of the Spanish compensation scheme is the Law of Solidarity with the Victims of Terrorism 2003. (3*)
Article 1 states that "as a testimony of honour and recognition for harm suffered due to terrorist attacks, the state bears the payment of reparations otherwise due to the victims by the authors and [those] responsible of such acts". As such, the basis of this compensation scheme is principles of social solidarity and "civil responsibility" and not, e.g., any potential fault of the State to have prevented terrorist acts from occurring.
Article 2 provides that the compensation scheme, with its accompanying right of victims of terrorism to seek reparations, is underwritten by the Spanish government. Reflecting the underpinning principles of article 1, article 2 provides that the government "will bear the burden of the relevant indemnities on an extraordinary basis, based on the notion of civil responsibility and in agreement with the provisions of the present law". Therefore, though convicted terrorists retain primary responsibility for the compensation of victims, the State plays a subsidiary role in providing victims' redress where it is not available from the offender.
The Spanish government's role is ad hoc and voluntary, not legislatively based.
A narrow eligibility test is adopted, with compensation only being available to Spanish citizens, nationals of EU Member States, persons habitually residing in Spain, as well as nationals of foreign countries that have concluded reciprocal agreements with Spain in this respect.
Prior to the 9/11 terrorist attacks, the US (as well as Canada) adopted a very different approach to the compensation and reparation of victims compared with, e.g., the European examples of Italy and Spain. Rooted in the law of tort, victims were expected to be compensated by the responsible tortfeasor (i.e. the legal 'person' responsible). This posed specific challenges regarding terrorism related victims in that non-State terrorist groups do not represent legal entities which can be readily held to account within US courts.
Following the 9/11 terrorist attacks some aspects of the damage were compensated in the traditional way with the framework of US civil tort law and insurance law. E.g., under the Terrorism Risk Insurance Act 2002 (last reauthorized in 2015), the duty of compensation rests exclusively with the offender, be it a physical person, a legal entity, or a State. A proposal by the Bush Administration to create a new compensation programme for victims of terrorism financed by State Department funds was rejected by the US Congress. (4*)
The status quo was changed, in part, by the 9/11 Fund which was created to compensate victims for losses attributable to the New York attacks that occurred on 9/11. (5*) The Fund was established as part of the Air Transportation Safety and System Stabilization Act (ATSA) which was passed to protect the transportation industry from a possible financial floodgate of victims pursuing the airlines involved in the 9/11 attacks. The Act provided for a mega-grant of approximately $15 billion in loans and guarantees for the airline industry.
Included within the ATSA was a no-fault victims' compensation programme worth around $3-4 billion, for the 9/11 attack's victims and their families. Not part of any federal or State structure, the compensation scheme was conceived as an ad hoc mechanism to be administered exclusively by a Special Master appointed by the Attorney General. Compensation awards were paid directly from the National Treasury of the Federal Government to legitimate claimants, without their having to demonstrate liability or causation, only proof of damages which included economic and non-economic losses associated with death or physical injury. Successful complainants, however, waived their rights to sue potential tortfeasors other than the terrorist actors. (6*)
Significantly, it was made clear by the US Government that the Fund was not intended to be "a replacement of the tort system", and that its purpose was to provide "a sustainable, realistic and reasonable foundation" to rebuild families' lives. (7*) As such, it should be regarded as a one-off, ad hoc, solution to the 9/11 attacks specifically rather than as a longer term compensation model.
The Philippines (8*)
In February 2013, Republic Law No 10368, the Human Rights Victims Reparations Act, came into effect. It provides "for reparation and recognition of victims of human rights violations during the Marcos regime, documentation of said violations, appropriate funds therefore and for other purposes". The claims relate to the period of martial rule (1972-1986) of Ferdinand Marcos during which many victims suffered, died or disappeared when the police and military forces were able to operate with impunity.
Under the law, victims fall into one of four categories: (1) victims who died or have disappeared and are still missing; (2) victims who were tortured, or raped or sexually abused; (3) victims who were detained; and (4) all other victims. The reparation awarded is graded against the category of victims.
By May 2015, 75,730 claims had been filed with the Human Rights Victims Claims Board by either victims themselves or their next of kin.
An important source of funding for the scheme is P10 billion which was recovered from the Marcoses hidden assets recovered from their Swiss bank accounts.
1* - See further, Bottigliero, Ilaria (2012). "Realizing the Right to Redress for Victims of Terrorist Attacks." In Counter-Terrorism: International Law and Practice, Ana-Maria Salinas de Frías, Katja L. H. Samuel, Nigel D. White, eds. New York: Oxford University Press. Ch. 33, which has informed part of these materials.
3* - Law 2/2003 of 12 March, of modification of Law no. 32/1999 of 8 October, of solidarity with victims of terrorism.
4* - See, Murphy, S. D. (2003). " Contemporary Practice of the United States Relating to International Law." American Journal of International Law, vol. 97, p. 189.
5* - US Department of Justice. September 11th Victim Compensation Fund of 2001 , 115 Stat 237-41, paras. 401-9. The victim compensation program is contained in Title IV of the Air Transportation Safety and System Stabilization Act (ATSA) (adopted 22 September 2001).
6* - See, US Department of Justice September 11 th Victim Compensation Fund. Closing Statement from the Special Master, Mr. Kenneth R. Feinberg, on the Shutdown of the September 11th Victim Compensation Fund .
7* - Cheryl Schneider et al v. Kenneth R. Feinberg, Special Master of the September 11th Victim Compensation Fund of 2001, John Ashcroft, Attorney General of the United States, United States Department of Justice , Judgment of 26 September 2003, US Court of Appeals (Second Circuit), Docket No. 03-6124 and 6130.
8* - Doyo, Ma Ceres P. (2015). " 75,730 claims of rights violations under Marcos are being processed." Inquirer.Net, 29 September.
Despite the encouraging progress towards the increased support of victims of terrorism that such mechanisms represent, there are several ways in which existing or new schemes may benefit from further strengthening. Some such issues, in relation to which an agreed international approach in the form of a framework could assist in addressing, relate to: restrictions over questions of locus standi, i.e. the right of victims to institute proceedings against a State for compensation; State compensation schemes that are not based on an enforceable right of victims to receive compensation; State compensation schemes that are generally established on an ad hoc and ex post facto basis; and State compensation schemes that generally cover only monetary aspects of redress.
In practice, it has sometimes been necessary for associations of victims of terrorism to be formed following a terrorist attack in order to lobby a State for compensation. Additionally, such victims' associations can be helpful in "confront[ing] the serious gaps in the protection of victims of terrorism and .... mak[ing] sure that all of those affected receive medical, psychological, social and legal support they are entitled to" (see Asociacion 11-M Afectados Terrorismo), including by acting as a focal point for liaising with local and national bodies on behalf of the victims. Often, victims also need to better understand more about the attacks, such as their motivations, as part of their healing process.
One example of such a group is the Asociación 11M Afectados del Terrorismo. This comprises the families of victims of the Madrid bombings in 2004, which resulted in the deaths of 191 persons and wounding of a further 1,800 more after ten bombs were detonated on-board four commuter trains. The Asociación also assisted victims in seeking justice and reparation through the Spanish courts which led to the award of amounts between €30,000 and €1.5 million in compensation to each victim. This sum included payments to both families of victims who died during the attack and disabled victims (Bottigliero, 2012, p. 912). Similarly, following the 9/11 attacks, the victims' families established several associations with various aims and different affiliations, reflecting the scale and diversity of those affected (Bottigliero, 2012, p. 910). For example, some survivors of 9/11 created their own associations, such as the World Trade Center Survivors' Network, a principal objective of which is to offer mutual support to fellow survivors in rebuilding their lives.
Another example is the Victims Support Fund in Nigeria which was created to support victims of Boko Haram's terrorist activities with both financial and non-financial assistance. Such activities include the identification of sources and means of sustainable funding, the development of fund raising strategies, and the management, including disbursement of support to victims, liaising as necessary with all relevant stakeholders in order to gauge "the persons, communities, facilities and economic assets affected by Boko Haram terror activities". There are several priority areas in terms of the support it aims to provide:
- Economic empowerment for victims of terrorism (women).
- Educational support for terror-affected and displaced children.
- Psychosocial support for people affected by terrorism.
- Facilitation of foster programming for children orphaned by terrorism.
- Support for over-stretched hospitals to provide free treatment to victims of terrorism.
- Critical assessment of state of insurgency in the Nigeria.
- Socio-Economic analysis of the impact of insurgency on the victims.