Abstract
Producing large-scale victimization is one of the prime goals of terrorists worldwide. A regular characteristic not only of the unparalleled attacks of 9/11 but with its more than 3,000 direct fatalities is to provoke maximum public attention by producing as many casualties as possible. Victims fall prone to such events due to a terrorist preference for soft and symbolic targets. Not surprisingly, victims of terrorism receive particular attention when counterterrorism policies are formulated. In practice, however, compensation and support for those directly or indirectly affected by terrorist acts is often rather poor. This chapter aims to analyze (1) the situation of victims of terrorism in a theoretical victimological framework and (2) legislation in favour of victims of terrorism from a comparative perspective. Significant differences can be found not only within Europe where victim policies are basically guided by European Union and Council of Europe but likewise in comparison with the policies in the US and Israel, which have both implemented particular legislation for victims of terrorism decades ago. The chapter argues for the adoption of a principled approach to compensation, based on social solidarity instead of tort law rules. Further attention is drawn to a particularly unprivileged group: those individuals who become victims of terrorist threats abroad and who, as a consequence of the territorial limitations applicable to compensation rules, have no access to victim compensation schemes in their home countries.
Updated version of article originally published by Springer Science+Business Media in the European Journal on Criminal Policy and Research, issue 13:1–2 (April 2007), pg. 13–31
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Notes
- 1.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations November 1985; UN General Assembly Resolution 40/34, 1985.
- 2.
United Nations General Assembly Resolution 52/133, “Human Rights and Terrorism.” December 1997.
- 3.
Albrecht, H.-J.: Antworten der Gesetzgeber auf den 11. September – eine Analyse internationaler Entwicklungen. Journal für Konflikt- und Gewaltforschung 4, 46–76 (2002); see also Irune Aguirrezábal Quijera, I.: The United Nations’ Responsibility towards Victims of Terrorist Acts. FRIDE, Madrid 2005.
- 4.
US Department of State: Global Patterns of Terrorism 2003. Washington, April 2004.
- 5.
Adopted by the Security Council at its 5053rd meeting on 8 October 2004.
- 6.
See also Commission on Human Rights resolution 2003/37 “Human rights and terrorism.”
- 7.
A/RES/60/288, 8 September 2006.
- 8.
European Convention on the Compensation of Victims of Violent Crimes of 24 November 1983, ETS No. 116.
- 9.
Recommendation R (87) 21 on the Assistance to Victims and the Prevention of Victimization, adopted by the Committee of Ministers on 17 September 1987 at the 410th meeting of the Ministers’ Deputies.
- 10.
For a compilation of the most relevant victim-related Council of Europe documents, see Council of Europe (ed.), Victims – Support and assistance, Strasbourg 2006.
- 11.
Adopted by the Committee of Ministers on 2 March 2005 at the 917th meeting of the Ministers’ Deputies.
- 12.
Guidelines on the Protection of Victims of Terrorist Acts, adopted by the Committee of Ministers on 2 March 2005 at the 917th meeting of the Ministers’ Deputies. The guidelines are available on the website of the Council of Europe at www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Fight_against_terrorism/2_Adopted_Texts
- 13.
European Court on Human Rights 28 March 2000, Kiliç vs Turkey; 18 May 2000, Velikova vs Bulgaria.
- 14.
European Convention on the Suppression of Terrorism of 27 January 1977, ETS No. 090.
- 15.
European Convention on the Prevention of Terrorism of 16 May 2005, ETS No. 196.
- 16.
Recommendation Rec(2006)8 on Assistance to crime victims, adopted by the Committee of Ministers on 14 June 206 at the 967th meeting of the Ministers’ Deputies. The new recommendation is intended to update and amend the earlier recommendations R (87) 21 (see above) and R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure.
- 17.
See recommendation no. 8.8: “states may consider.”
- 18.
Commission of the European Communities: Green Paper. Compensation to crime victims (presented by the Commission) Brussels, COM(2001) 536 final, 28.9.2001.
- 19.
OJ L 63, 4.3.1997, p. 2.
- 20.
OJ C 19, 23.1.1999, p. 1.
- 21.
OJ C 59E, 23.2.2001, p. 5.
- 22.
OJ C 232, 17.8.2001, p. 36.
- 23.
OJ L 82, 22.3.2001, p. 1.
- 24.
OJ C 72E, 21.3.2002, p. 135.
- 25.
OJ C 153E, 27.6.2002, p. 275.
- 26.
COM(2001) 521 final, 19.9.2001; see also OJ C 332E, 27.11.2001, p. 300.
- 27.
OJ L 164, 22.6.2002, p. 3.
- 28.
OJ C 19, 23.1.1999, p. 1. Point 51 (c).
- 29.
Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee. Crime victims in the European Union – reflections on standards and actions. COM(1999) 349 final, 14.7.1999.
- 30.
OJ L 82, 22.3.2001, p. 1.
- 31.
Wergens, A.: Crime victims in the European Union. Brottsoffermyndigheten, Umeå 2000.
- 32.
Commission of the European Communities: Green Paper. Compensation to crime victims (presented by the Commission) Brussels, COM(2001) 536 final, 28.09.2001.
- 33.
Case 186/87 Ian William Cowan v. Trésor public [1989] ECR 195; Case of Rolf Gustafson v. Sweden, judgement of 27 May 1997.
- 34.
Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, OJ L 160, 30. 6. 2000, p.
- 35.
European Parliament resolution on the Commission Green Paper on compensation to crime victims (COM(2001) 536) – C5–0016/2002 – 2002/2022(COS).
- 36.
OJ C 125, 27.5.2002, p. 31.
- 37.
Council Directive 2004/80/EC of 29 April 2004 Relating to Compensation to Crime Victims, OJ L 261, 6 August 2004, p. 15.
- 38.
See also Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, SN 140/01, p. 4.
- 39.
Peck, R.S.: The Victim Compensation Fund: Born from a Unique Confluence of Events Not Likely to Be Duplicated. DePaul Law Review 53 (2003), S. 209–30.
- 40.
Mariani, R.L.: The September 11th Victim Compensation Fund of 2001 and the Protection of the Airline Industry: A Bill for the American People. Journal of Air Law and Commerce 57 (2002), pp. 141–186; the final rules governing the Victim Compensation Fund of 2001 were published on March 6, 2002 (P.L. 107–142).
- 41.
U.S. Department of Justice, Office of Justice Programs: International Terrorism Victim Expense Reimbursement Program. Report to Congress. Washington, February 2006.
- 42.
See, e.g., Shapo, M.S.: Compensation for Victims of Terror: A Specialized Jurisprudence of Injuries. Indiana Law Review 36 (2003), pp. 237–249.
- 43.
Dixon, L., Kaganoff Stern, R.: Compensation for Losses from the 9/11 Attacks. RAND Institute for Civil Justice, Santa Monica 2004.
- 44.
Diller, M.: Tort and Social Welfare Principles in the Victim Compensation Fund. DePaul Law Review 53 (2003), pp. 719–768.
- 45.
Sommer, H.: Providing Compensation for Harm Caused by Terrorism: Lessons Learned in the Israeli Experience. Indiana Law Review 335 (2003), pp. 335–365.
- 46.
For more detailed information on the situation in the CoE Member States, see Kilchling, M., Albrecht, H.-J.: Victims of Terrorism Policies and Legislation in Europe. An Overview on Victim Related Assistance and Support, forschung aktuell – research in brief, No. 30. Freiburg i. Br. 2005, pp. 18 et seq.; the report is also available in Council of Europe (ed.), Victims – Support and assistance, Strasbourg 2006, pp. 199 et seq. (pp. 211 et seq.) or as document no. PC-S-AV (2005) 04 at www.coe.int
- 47.
Sommer, H.: Providing Compensation for Harm Caused by Terrorism: Lessons Learned in the Israeli Experience. Indiana Law Review 335 (2003), pp. 335–365.
- 48.
Cf. EU Council Framework Decision (2002/475/JHA) of 13 June 2002 on Combating Terrorism, recital no. 8.
- 49.
See footnote 12.
- 50.
Cf. Explanatory Memorandum to the CoE Recommendation (2006)8 on Assistance to Crime Victims, para 21.
- 51.
Cf. Reply by the Committee of Ministers to Recommendation 1677 (2004) “Challenge of terrorism in Council of Europe member states,” adopted at the 912th meeting of the Ministers’ Deputies on 19 January 2005: Parliamentary Assembly of the Council of Europe Doc. 1041122 of January 2005, item no. 19.
- 52.
US Department of Justice Office of Justice Programs: Responding to Terrorism Victims: Oklahoma City and Beyond. Washington, October 2000.
- 53.
US Department of Justice: New Directions from the Field: Victims Rights and Services for the 21st Century. Washington 1998; see also Dixon, L., Kaganoff Stern, R.: Compensation for Losses from the 9/11 Attacks. RAND Institute for Civil Justice, Santa Monica 2004.
- 54.
Gonzales, A.R., Henke, T.A., Gillis, J.W.: Responding to September 11 Victims: Lessons Learned from the States. www.ovcttac.org
- 55.
Sommer, H.: Providing Compensation for Harm Caused by Terrorism: Lessons Learned in the Israeli Experience. Indiana Law Review 335 (2003), pp. 335–365, p. 364.
- 56.
According to a fix tariff system relatives of a victim who came to death receive an amount of 500 minimum salaries, persons who become invalid receive compensation equating 50 or 100 minimal salaries. Victims who suffered serious injuries are compensated by an amount of 30 minimal salaries, those who were slightly injured an amount of 15 minimal salaries. Regular pensions solely based on the fact of a terrorist victimization are not paid. Concrete figures can be drawn from several cases that came to public attention in recent years. Families of the victims of the two passenger jet crashes of 2004 received 100,000 Rubles (∼€ 2,800) from the federal government. Victims injured by a terrorist bombing in Moscow in 2004 received 50,000 (serious injuries) 3,000 Rubles (light injuries) on the basis of a decree signed by the Moscow mayor. Survivors of the North-East theatre siege received some US$ 2,700, whereas families or relatives of those who died received approximately US$ 9,500.
- 57.
See, e.g., article 2 of the Council Directive 2004/80/EC of 29 April 2004 (see footnote 38).
- 58.
CETS No. 196, see footnote 16.
- 59.
The controversies about how to subsidize the members of the European Parliament in a way that can be assessed to be just by the public in all EU member states is a good example. The present model of payment based on the national standards is as controversial as a uniform system providing the same extent for all the representatives would be.
- 60.
After the 2002 synagogue attack in Djerba/Tunesia the federal government of Germany provided some € 10 million as ad hoc subsidy for the German victims who legally not eligible for compensation according to the State Compensation Act for Victims of Violent Crime (Opferentschädigungsgesetz – OEG) which, at that time, was strongly territory-based as well.
- 61.
The new UK compensation scheme for victims of terrorism abroad, endowed with an initial capital stock of £ 1 million from the 2006 budget, is administered by the British Red Cross.
- 62.
Such as, e.g., the so-called “Fonds de Garantie” of France which, according to article 9 para 1 of Law no. 86–1020 of 9 September 1986 on the Combat of Terrorism, is also available for French citizens who were victims of terrorist acts committed outside French territory.
- 63.
See, in particular, the Austrian Crime Victims Compensation Act (Verbrechensopfergesetz – VOG) that, in its article 1, provides that Austrians and EEA citizens with regular residence in Austria who became victim of a violent crime are entitled to claim for compensation under the VOG, independent of the place of victimization. For more details, see Raschka, W.: Austria, in: Greer, D. (ed), Compensating Crime Victims – A European Survey, Freiburg 1996, pp. 15 et seq.
- 64.
In Germany, two parliamentary initiatives of the Liberal Party (cf. BT-Drucksache 16/585 of 08.02.2006) and the Green Party (cf. BT-Drucksache 16/1067 of 28.03.2006) for an expansion of the scope of application of the OEG (see footnote 61) to include German nationals who were victims of terrorism and other forms of violent crime abroad were unsuccessful. A third initiative launched by the government parties (cf. BT-Drucksache 16/12273 of 17.03.2009), finally succeeded. As of 1 july 2009, such victims now receive, besides health care and some funeral costs, a lump sum between € 714 and € 25,632 for bodily injury, according to the actual degree of injury; in case of death, dependants receive a lump sum between € 1,272 and € 4,488; in addition, close relatives can claim for psychotherapeutic treatment (article 3a of the OEG (see footnote 61), as amended by the Third OEG Amendment Act of 25.06.2009, BGBI, I, p. 1580).
- 65.
See, as concrete examples of such a subsidiary clause, article 8 para 3 of the Austrian VOG (see footnote 64) or article 3a para 4 of the amended German OEG that provide that victims are exempt from compensation if they are eligible to receive similar compensation under foreign legislation.
- 66.
There is principal dispute as to what extent failure in criminal policy in general and prevention in particular can be a rationale for state compensation for victims of crime. For more details, see Greer, D.: Compensating Crime Victims – A European Survey, Freiburg 1996, p. 695 (with further references); see also the explanatory report to the 1983 European Convention on the Compensation of Victims of Violent Crimes (see footnote 9), paragraph 9.
- 67.
Compare also the report of the UN Secretary General of 27 April 2006: Uniting against terrorism: recommendations for a global counter terrorism strategy, U.N. doc. no. A/60/825, p. 5, available at http://www.un.org/unitingagainstterrorism/sg-terrorism-2may06.pdf
- 68.
See, e.g., Council of Europe, Commissioner for Human Rights, Berlin Declaration of November 2004, (www.nhri.net/pdf/CommDH-NHRI2004)1_E.pdf
- 69.
Preamble of the 1983 European Convention on the Compensation of Victims of Violent Crimes (see footnote 8).
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Albrecht, HJ., Kilchling, M. (2010). Victims of Terrorism Policies: Should Victims of Terrorism Be Treated Differently?. In: Wade, M., Maljevic, A. (eds) A War on Terror?. Springer, New York, NY. https://doi.org/10.1007/978-0-387-89291-7_7
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