Restorative Justice Notes PDF

offenses under international criminal law, and they are both comprised among the crimes under the jurisdiction of the international criminal court. Move to the regional level, EU Directive which is quite a binding and recent document (Study the directive in depth, the full text is available on bb because among supranational legal provisions, this legal document is the most comprehensive in terms of setting up a system of rights, assistance and protection for victims of crime. Directive 2012/ 29/ EU Article 2 – Definitions “Victim”: a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence; “Victim”: family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death; “Family members”: the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis, the relatives in direct lines, the siblings and the dependents of the victim. According to the 2023 Directive, victims are natural persons only, legal entities are not. The notion of victims includes family members if the direct victim is diseased because of the crime. Third, victims in this directive are only victims of crimes and not of abuses, crimes are the offenses qualified within the EU. P.14 of the directive states that the directive applied in relation to criminal offenses committed in the EU and to criminal proceedings * in the Union. This of course restricts the scope of the victim’s protection system set up in the Union but on the other hand, the citizenship or residence status of victims are completely irrelevant in the victims’ access to rights, assistance, support and protection. Think of what taking this directive seriously would entail for all EU MS. What comes next in our analysis is a philosophical and legal implication. Both the non-binding UN Declaration and the binding EU Directive state that “A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them”à Recital 19, Directive 2020/ 29/ EU. This statement brings about a sort of philosophical, legal and social revolution, they separate the recognition from the discovery, identification, accusation and conviction of the offender. Think about the implications of this provision and how very relevant they are in the frame of RJ. Being a victim, being recognized and considered as such does not rely on punitive criminal justice. This provision opens up the possibility of forms of justice for victims that are independent from trials, convictions, punishment ad so on. For a victim, this is extremely important: victims needs may have little or nothing to do with the offender being identified, comprehended or prosecuted. Victims urgent relevant needs may be associated to for instance medical assistance, information, support. Furthermore, opening a legal and social space for victim’s assistance and support beside and aside RJ allows to take in due considerations those victims whose needs will never be identified, apprehended, prosecuted or convicted. Think of the most unthinkable: suppose the offender to die such as in a suicide bombing, punitive justice can do nothing. There is no one to put on trial or to punish, RJ can still do a lot, such for instance bringing a group conference, or a mediation but also fitting support and victim assistance can do a lot if the offender is not there anymore. Providing victim support and assistance to victims who no one to blame because the one to blame is dead adds up to a feeling of procedural fairness, trust in public institutions and strengthens bonds in the community. Our next definition is drawn from the Council of Europe Recommendation on assistance to victims. The council of Europe has adopted other recommendations regarding victims, I chose this one only because it is the most recent one and because addresses the topic of support and assistance. 41 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ CE Rec (2006) 8, Assistance to crime victims – Rule n.1: Definitions “1.1 Victim means a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, caused by acts or omissions that are in violation of the criminal law of a member state. The term victim also includes, where appropriate, the immediate family or dependents of the direct victim. 1.2 Repeat victimization means a situation when the same person suffers from more than one criminal incident over a specific period of time. 1.3 Secondary victimization means the victimization that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim”. What is interesting for us are the definitions in 1.2 and 1.3, the first has nothing new for us. We have already talked about repeat and secondary victimization and here we find both definitions. As we mentioned already, consistent with international European legal systems, victims are entitled protection against these two forms of victimization. Of course, we let aside crime prevention and responsive regulation that would protect the victim from first victimization. We also know that in the frame of human rights, the state has positive obligation to protect life and integrity of persons and we know the state also ensures victims not to be victimized again. References can be made to the Talpis case we already discussed, Mrs. Talpis underwent a triple victimization as a direct victim, she experienced repeat victimization because of the attempted murder of herself, as a family member of a diseased direct victim, she is a victim according to the EU definition and she has experienced repeat victimization because of the murder of her son, then she went through secondary victimization because of the passive, ineffective, inactive, discriminatory conduct by the competent authorities who should have but did not protect her thus allowing repeat victimization and her son’s murder. Insofar, we have focused on victims of crime in general, meaning those suffering from any harm caused by any criminal offense or abuse of power. We know that the emergence of the victim though is associated with the development of legal and social concept of vulnerability and this concept has preceded a general notion of victim. The first victims to be legally and socially considered were the vulnerable ones and they have been considered victims precisely because they were viewed as such, think about Niels Christie’s argument The Ideal Victim. Main International and European legal texts concerning specific groups of victims “Vulnerable victims” Interestingly, international and European law offered a proof of ideal victim theory and of the relevance of vulnerability in drafting legal tools in favor of certain specific groups of victims only. Let me just mention some of the legal texts that concerned vulnerable groups just to provide an overall idea: At the UN level, we have UN Convention on the elimination of all forms of discrimination against women (1979), we have a protocol to suppress, prevent and punish trafficking persons, especially women and children (2000). At the EU level we have a series of directives such the one on combatting the sexual abuse and exploitation of children (2011), directive 36 (2011) on preventing and combatting trafficking in human beings and protecting its victims, we have the recent 2017 directive on combatting terrorism. We have the council framework decision on combatting certain forms of racism and xenophobia, this dates back 2008. 42 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ At the Council of Europe level, we have conventions on preventing and combatting violence against women and domestic violence (2011), the convention on the protection of children against sexual abuse and exploitation, we have the European Convention on the prevention of terrorism (2005), the convention against trafficking in human beings. The development of international criminal law, the birth of the International Criminal Court (ICC) also contributed to the drafting of a status of particular groups of relevant victims, the victims of international co-crimes such as genocide, crimes against humanity, war crimes. These victims gained more and more status in the frame of international criminal justice especially after the adoption and entry into force of the Rome Statute establishing the ICC and after the review conference of the Rome Statute held in Kampala 2010. The declaration addresses the impact of the Rome statute system on victims and affected the communities. The declaration focused on the participation of victims, protection of victims and witnesses, the role of outrage and the trust for victims. UN, International Criminal Court – Rules of Procedure and Evidence Section III – Victims and witnesses Subsection 1. Definition and general principle relating to victims Subsection 2. Protection of victims and witnesses Subsection 3. Participation of victims in the proceedings Subsection 4. Reparations to victims Rule 98 Trust Fund - In the process of understanding who the victims are in the frame of international law, it is worth reading definition drawn from the ICC Rules of Procedure and Evidence Rule 85: Definition of Victims 1. “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; 2. Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes. As concerning the Victim’s rights before the ICC, victims of international co-crimes within the jurisdiction of the court are entitled to: Right to participation Right to prevent their views and concerns to the ICC judges; right to make observations Right to a legal representative; legal representation by the Office of Public Counsel for the Victims (OPVC) Right to assistance and support Right to claim reparations in case of conviction of the accused Reparations is extremely controversial and debated due to a lack of effective results in cases of massive violations of HRs, massive victimization or collective victimization. Cases may concern millions of people in several different places, in the whole world. Nonetheless, the Trust Fund for Victims has been established in the system of the ICC which aims: 43 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ 1. To implement Court-ordered reparations (because the offender has been convicted) and 2. To provide physical and psychological rehabilitation or material support to victims of crimes that fall within the jurisdiction of the Court (that is genocide, crimes against humanity) The ICC and the Trust Fund for Victims website presents reparations as a form of reparative justice. While stressing the extreme importance of reparation for victims of international crimes, we must not be misled by these wording: reparative justice is not restorative justice, they are different concepts. We mentioned already how reparations is not the core feature of RJ which is based on voluntary encounters and dialogues, more than reparations. We now turn to the vulnerable groups of victims standing out in the majority of legal instruments adopted by UN, Council of Europe and EU. From the perspective of political and social sciences, it is particularly interesting to analyze these groups. Who are the vulnerable ones according to the international legal provisions we have quoted? These are children, women, the elderly, people with disabilities, victims of crimes occurred in a country of which they are not nationals or residents, victims of violent crimes, victims of gender- based violence, victims of violence in close relationship and domestic violence, victims of sexual violence and other sexual offences, victims of trafficking in human beings, victims of terrorism, victims of torture and of organized crime, victims of crimes committed with a bias or discriminatory motive. We shall now ask ourselves: is this list complete? What kind of political selection there is behind the choice to provide special protection to these groups and not others? Are these the Ideal victims? Who is lacking in this last if any? Think that today, a victim of stalking, a crime that is considered among the expressions of gender violence, is entitled a much stronger protection than the family members of a murdered victim. Interestingly, the great novelty about the Victim’s directives is that it brought about the overcoming of this policy of categorizing and grouping vulnerable victims * of an Individual assessment of Victim’s needs. According to the EU Directive on Victim’s in general 2012, each victim can be vulnerable, no matter his or her age, status, gender, place of residency and no matter the crime that has been committed against him or her. The topic of individualizing and individualize assessment of needs comes together with the adoption of individualized protection measures and this is one of the key concepts of the victims’ Directive legal and social revolution. The victims’ Directive advocates at the end from stereotypes or prototypes of vulnerable victims that have been legally defined as such in principle as a group, all women, all children on an abstract basis. The directive advocated an evolution from these prototypes towards a case by case individualized analysis of the particular vulnerability of a specific life person in order to protect that person and address his or her real needs. We may say according to this Directive: no ideal victim anymore, only real victims with real needs expecting real tailored assistance, support and protection. As we can see, the task is huge and entails a great deal of responsibility, competence, humanity form any authority coming across any victim of any crime. The EU “Victims Directive”: a multi-level system for victims of crime in the EU It is now time to dedicate ourselves to the exploration of the multi-level system for victims promoted by the 2012 Victims’ Directive. The Directive advocates that every victim is granted the right to information, the right to assistance, support and protection, the right to participation in criminal proceedings and the right to have a decision concerning reparation and compensation. Therefore, the directive drafts three levels aspects of the system: 1. Information, assistance and support 2. Protection 3. Participation in proceedings 44 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Some of the aspects and activities in favor of victims are free from any possible issue conflicting with other people’s fundamental liberties and rights. Some others on the contrary are not free from problems of conflicting with them. Information, assistance and support has green light and therefore no problems, they can and be must assured to victims because never touch other people’s rights. With protection things are more complicated (yellow light): this is protection from repeat victimization, retaliation, intimidation, secondary victimization which is a very delicate issues because we do not want a pre-crime enforcement in the name of victim’s rights, we do cherish HRs, fundamental liberties and constitutional safeguards for everyone. Protection of victims can create problems when for instance it comes with information on how not to become a victim again, people can be instructing on how to avoid becoming victims of other crimes. In cases, protection requires the adoption measures free from liberties, victims’ protection needs must be strictly balanced with the rights of the accused, convicted, suspected person, the balance must be carried out by the judiciary and the subsequent measures should be judicially supervised. The exact nature of such protection measures should be determined by the judiciary through the individual assessment of victim’s needs but, as states also in Recital 58 of the Victims’ Directive, the extent of any such measure should be determined, prejudice to the rights of the defense and in accordance with those of judicial discretion. As a victim procedural right, it is important to underline how this right too must be balanced with the right of the accused, suspected, convicted person without prejudice to the right of the defense. In no way, victims gain or re-gain individual power to determine punishment. Victims do have a voice in the proceedings but not in the field of punishments, this field is left to the judiciary only. Furthermore, victims have no rights to the punishment of offenders. As far as the attitude, style of conduct, tasks and duties of any authority coming across victims, the EU requires that each victim of any crime regardless of the seriousness of the crime is granted: Recognition Respectful, sensitive and fair treatment Individualized and tailored assessment of needs Competent and non-discriminatory services Dealing with victims, assessing, supporting or protecting them are delicate tasks of extreme complexity. The attitudes required by any person having an institutional role are more similar to talents rather than professional skills, are more similar to non-technical skills rather than competencies one acquires with a PhD. Victims have almost hated being analyzed, scrutinized, checked by professional (Being them judges, social services, lawyers, psychologists and so on), they have instead almost regularly been met as persons, in person by those offering and sharing their own vulnerability, humanity. Any competent authority coming across a victim should intervene with: humility, humanity, compassion, attention and care, active listening and wisdom. PART C During this part of the lecture we will now turn RJ again and study how it regulated in the frame of international and European provisions concerning victims’ rights and protection. We will then conclude with a testimony and a small exercise. Victims and RJ: the international and EU legal framework 45 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ RJ and alternative conflict resolutions mechanism are mentioned in all the three legal texts we have been discussing during this lecture. RJ contributed to the discovery of the victim, to counter the isolation in punitive justice system, contributed to the development of a victim-sensitive culture and on addressing victim’s needs and rights which do not coincide with the offender being punished but are more complex and much more elaborated. The three legal documents, all encourage the use of RJ recognizing how it can be helpful with potential benefits and positive effects in victims, helping them recover and redress. On the other hand, especially the Council of Europe recommendation and the Victim’s Directive even more, are strongly victim-centered, they include cautions when sung RJ and underline how the interest of the victim and how the potential risks should be always be considered when recurring to RJ. These ask to consider the interest of the victims and the risk for the victims as first primary consideration when recurring to RJ, before the interest and for the accused or the offender but even before of the interest of and the risk for other subjects such as family members or community members. We will especially analyze the Victims’ Directives because it is the only binding document regulating quite strictly the operation of RJ in the frame of a system of victim’s rights. The Directive does so in a way that create few problems and worries from inside a RJ perspective. In the Directive, RJ is included among the proceedings of victims, the use of RJ is not mandatory for MS who have full discretion I deciding whether or not to introduce RJ in their legal systems, MS though are encouraged by the EU to use RJ but only under certain conditions and only if certain safeguards are met. So, if MS decide to regulate RJ and introduce it in their legal systems, the conditions and safeguards stated in the Victims’ Directive must hold. This might be quite problematic because some of these safeguards indeed may conflict with basic principles of RJ. UN 1985 Declaration – RJ Rule 7 Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims. CE Rec (2006) 8, Assistance to crime victims Rule 13: Mediation “13.1. Taking into account the potential benefits of mediation for victims, statutory agencies should, when dealing with victims, consider, where appropriate and available, the possibilities offered for mediation between the victim and the offender, in conformity with Committee of Ministers’ Recommendation R (99) 19 on mediation in criminal matters. 13.2. The interests of victims should be fully and carefully considered when deciding upon and during a mediation process. Due consideration should be given not only to the potential benefits but also to the potential risks for the victim. 13.3. Where mediation is envisaged, states should support the adoption of clear standards to protect the interests of victims. These should include the ability of the parties to give free consent, issues of confidentiality, access to independent advice, the possibility to withdraw from the process at any stage and the competence of mediators”. Directive 2012/ 29/ EU - Restorative Justice Article 2(d) – Definitions “RJ” means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an imparial third party. Use of RJ is not mandatory for EU Members States......but RJ is encouraged by the EU under certain conditions and if specific safeguards are ensure 46 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ «Restorative justice services, including for example victim-offender mediation, family group conferencing and sentencing circles, can be of great benefit to the victim, but require safeguards to prevent secondary and repeat victimisation, intimidation and retaliation» (Recital 46) Victims have a right to receive information from any competent authority about the available restorative justice services in order to access this right (Article 4 (j)) «Member States shall facilitate the referral of cases, as appropriate to restorative justice services, including through the establishment of procedures or guidelines on the conditions for such referral» (Article 12.2) Victims Directive in general insists for competent services and institutions; it also insists on competent RJ services that as well as other institutions and services coming across victims, it too shall be able to: Recognize victims of crime, and treat them in a respectful, sensitive and professional manner without discrimination of any kind; Provide victims with information and advice in a manner which can be understood by the victim; Be adequately trained on the specific support services to which victims should be referred and on the special needs of certain victims (such as children or other vulnerable subjects); Be evaluated and monitored On the specific ground of RJ practice, the Directive provides the following: Recitals n. 46; Articles 12, 25. RJ services shall, in particular: Have as a primary consideration the interests and needs of the victim repairing the harm done to the victim and avoiding further harm; Be confidential; Ensure adequate safeguards for victims: Ensure access to safe and competent services; Receive a training to a level appropriate to their contact with victims with special protection needs (such as children); Observe professional standards to ensure that RJ services are provided in an impartial, respectful and professional manner Art 12 is devoted to RJ and is titled – Right to safeguards in the context of RJ services Safeguard from repeat and secondary victimization, intimidation and retaliation (also within, during and after restorative encounters and dialogues) Access to safe and competent of RJ services Conditions: o In the interest of the victim only (RJ can be used only in the interest by the victim) o Free and unbiased information about the process and potential outcomes o Safety considerations o Confidentiality o Acknowledgment of the basic facts of the case by the offender A condition for RJ services to take place is the free and informed consent that can be drawn in any moment, another condition is that mediators and facilitators should be able to provide full and 47 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ unbiased information, they should consider the safety of victims. The offender should acknowledge the basic facts of the case before referring the case to RJ. As we see, there are few issues and the most important ones are “in the interest of the victim only” and “acknowledgment of the basic facts of the case by the offender”. If we look at the UN Basic Principles and the Council of Europe recommendation in criminal matters, both international standards from the UN and Council recommend to take into consideration the interest of all parties and require the acknowledgment or agreement on the basic facts of the case by the parties. RJ advocates mediators and facilitators, tend to follow what is stated in the UN Basic Principles and CE recommendation on RJ but of course, the Victims’ Directive is a binding document and so in case of the state wants to regulate RJ will have to find ways to draft legal provisions in order not to satisfy*avoid considering these two conditions that the Directive expressly requires and recognizes. To conclude, I would like to turn to reality once again. Watch and listen to the testimony by Gill hicks, these 20 minutes are worth listening, you will meet a real victim, a survivor because Gill survived a suicide bombing attack in the London Tube. After listening the testimony, I would like you (not compulsory) to do this exercise (look at the slide). With this lecture we have concluded the general part of our module and we can now inaugurate the special part which will be devoted to deepening IR issues, international criminal law and responses to massive violations of HRs. Lecture 7 start of the special part Restorative Diplomacy and Restorative Peacebuilding Lecture 6 has concluded what we consider the general part, where we dedicate ourselves to the analysis of broad topics such as theory of justice and punishment, conflict resolution mechanism, basic principles of RJ, victim’s rights, needs and protection. Today we start a special part where we will study interaction between a restorative approach and IR, gross violation of HRs, mass atrocities and collective violence, International armed conflicts, armed conflict of non-international character such as tensions, riots or other acts of violence, international criminal justice. We will try to discover how to shape restorative responses to such immense problems and what RJ has to say in these fields. Note that the general part and special part are strongly interconnected. General part will nourish the special part, which will help us understand general concepts, definition and perceptions and therefore the special part will nourish the general part. Today we are going to deepen restorative diplomacy and restorative peace building, the second step will be to address an immense and resolvable question that of how to deal with a violent past: how much unspeakable truth can a community bear? what use shall be done of violent past? we are memory of past memory, close the books or we will have to face harsher conflict? Is it possible to provide responses in terms of justice to these injustices? It is possible to provide responses in terms of justice to atrocities that involve thousands or millions of people on both sides, victim and offender? Which forms of justice are possible to respond to crime that Anna Arendt defines unpunishable and unforgivable? What is the role played by amnesty/ of international criminal courts 48 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ and tribunals/ criminal international proceedings which are retributive and punitive in nature? What is the role played by RJ? We will address all these questions through the following lectures. Our last lecture, 10 opens a window on experience and will be divided into 3 parts, each dedicated to exemplary cases. My selection is therefore quite personal, though not arbitrary. I will convey 3 cases among the ones I know better from direct personal experience I would like to share with you, coming from being in touch with protagonists (South Africa), or being involved as mediator (restorative response to terrorism in Italy and partially in the North of Spain) or direct personal experience coming from me being in close contact with other organizations (Israel and Palestine). We will therefore conclude our model into reality because RJ is yes, a ground innovative theory but most of all is a way of life, live restoratively. It deals with lives of people and communities. The main study material for whole special part is chapter number 6 of Restorative J and Responsive regulation. Each lecture will have further references which are not required to study for the exam. All documents mentioned during today’s lecture are available in bb together with links to relevant videos and are strongly recommended. To address restorative diplomacy and peacemaking/ peacebuilding, we need to remember not only enforcement pyramid but also recall what we have discussed about which kinds of peace, which quality of peace conflict resolution mechanisms can ensure. I remind you that participatory and dynamic modes of conflict resolution are more able to address complexity and of drafting responsive outcomes than authoritative coercive and punitive ones. Furthermore, the non-coercive dynamic and participatory the conflict resolution mechanism is, the more it manages, fosters and maintain a quality of peace. A key issue in restorative diplomacy and peacebuilding is in fact the definition of peace: what do we mean by peace? There are two opposite conceptualizations, a negative definition of peace as a mere absence of violence, conflict or war and a positive definition as a higher quality of peace, which includes among others the acknowledgement of violations, the establishment of basis to address long causes of conflict, war or violence, the reconstruction of social bonds, possibility of peaceful coexistence and mutual recognition, re-establishment of trust in institutions by means of necessary reforms, the pursuit of most meaningful social economic justice possible under given circumstances in order to prevent re-occurrence. This is what we make all a proper long lasting reconciliation, in other words, the perspective is to overcome a negative def of peace towards a positive definition of peace as a state incorporates legal, social and economic justice, victims’ rights, the rehabilitation and reintegration of offenders, healing of present and future generations. Positive peace of course in accomplishes more than negative peace which is often *importance when it brings about a ceasefire and a stop of direct violence. It is important also negative peace but positive is much more. A positive def of peace also includes peace processes and outcomes are towards all involved, something that can be extremely disturbing and hard to accept for victims that suffered particularly because of the conflict. According to John Braithwaite, a lit diplomacy led international leaders, professionals, experts who do not live on the field often fail: top-down elite diplomacy and peacebuilding often fails in procuring durable positive peace. I will address only Braithwaite readings relevant for a RJ study: first, top- down elite diplomacy is often unable to break the basic distrust between conflicting parties and this is often due to the fact “that self-interested practitioners of power politics can forge a realist temporary peace, a negative peace but are unlikely to permanent healing that engages forgiveness of democratic peoples”. Second, top-down elite diplomacy often fails because it is unable to heal people and the cause of this depends on its incapacity of acknowledging, dealing with and healing of harness hurts felt by people, the unresolved resentment felt by civil society, the underlined hatred and negative emotions and feelings daily experiences by people in highly divided and polarized societies such as in the aftermath of atrocities, dictatorships, wars. This leaves people “lived with hatred over abuses, 49 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ ethnically divided, deprived of a sense of identity with a democratic state and its institutions”. Furthermore, as we will study unaddressed hatred and resentment are most likely to be passed on younger generations and even future next generation. Therefore, according to Braithwaite “diplomacy adopt practices and *akin to those of RJ, diplomacy must be democratized, diplomacy must heal all peoples preparing soil of popular sentiment for peace and democracy”. This shapes restorative diplomacy and restorative peacemaking/ peacebuilding. Positive peace processes are difficult and complex of course and they have a very high price as we will discuss in our future lecture. Let me just anticipate how positive peace needs the acknowledgment of violence and horrors perpetuated by all sides. It therefore requires a high degree of honesty and the virtue of what Alexander Langer call “the betrayal of the compactness of one’s own side”. To reveal and to stigmatize its own violence is difficult task and a politically risky one especially for those forces that came out of the world or a conflict as the winners. Along this perspective, studies now focus on a multidimensional approach to peacebuilding, peacemaking and peacekeeping. Where durable building of peace involves the civil society on multilevel interventions that include among others disarmament, demobilization, radicalization, disengagement, reintegration of victims, offenders and civilians. The reform of laws and institutions, for instance a military is a judiciary and so on together with the establishment of accountable institutions people can trust. This multidimensional approach to peace proposes a community-based participatory * that of course well resonates with RJ. The multidimensional approach is also known as bottom up peace processes or Grassroots peacebuilding or restorative peacebuilding. In this process, peacemaking/ building/ keeping should be designed, managed and implemented with participation of direct and local actors, of affected communities, of other relevant social movement players. These actors, as opposed to elite diplomats, external negotiators and other distant experts, have a side of direct knowledge to share and this direct experiential lived knowledge is fundamental for the success of the process and its long-lasting outcomes. This is the idea once again that those involved must be empowered and participate, they must not lose the property of conflicts that affect them being the international or internal conflicts as Christie would have said “by owning their own conflicts, they have a say in the resolution, they have a say in what peace is and should look like”: Furthermore, civil societies as a whole and communities are the first line of defense against violence outbreaks, in favor of a high quality peace and the reasons for this are explained in desistance and voluntary compliance we already studied. This community-based strategy requires the capacity to involve all the relevant subjects, that interestingly, might also be marginalized or discriminated groups. During the same lecture, we are going to talk about role of women and often marginalized groups with the role the women can have I durable peacebuilding and peacekeeping. In this multidimensional approach, top down elite diplomacy and bottom up restorative peacebuilding should be integrated, it is not another all perspective. Responsive regulatory pyramid of International diplomacy. For this integration to occur, a responsive global regulatory strategy is needed as cited by Braithwaite. The responsive regulation pyramid are in diplomacy is nothing but the adaptation of it as such we studied already we know how it works, at the basis is the first preference (persuasion and participation) and in the case of international diplomacy this means to first and to the maximum extent resort to grassroots restorative peacemaking. Means of pressure and warning are used only when escalating the pyramid for the case persuasion fails or proves not to be enough, at the very top is the use of force as last resort method, having tried all other solutions first. As anticipated, we will now talk about the role of marginalized groups in grassroots restorative peace processes. Among them, there are women, war and peace being a man’s issue and task. It seems though that should be no longer the case as long as at least positive peace is concerned. This is to see how powerful is the soft power of marginalized ones in activating peace, these peoples are strongly committed to peace for reasons that deal with life and death. We do not have time to deepen this topic 50 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ so let me just mention the anthropological and sociological connection between feminity and life. Feminity is the protection of life and medical science suggests that women are less exposed to coronavirus probably because of the special antibodies genetically produced to protect the fetus. So, think of how this soft power for women or also mothers work. The UN have recognized finally the relevance of women in the field of peace building and security and they did so by adopting unanimously a Landmark security council resolution on Women, peace and security n.1325 (2000) that affirms the importance of participation of women and inclusion of gender perspectives in peace negotiations, humanitarian planning, peacekeeping operations and past conflict peacebuilding and governance. This resolution inaugurated others. Security council resolutions addressing role of women in past conflicts and peace processes count now 10 documents that formed the foundation of women, peace and security WPS agenda. These, especially 1325 and 2493 called for a greater participation of women in all stages of all peace processes including the mechanism set up to implement peace agreements and for the consideration of gender equality and women empowerment as critical to international peace and security, this is one side. On the other, these focus on women victimization in war and conflict, recognizing as sexual violence is used as tactic of war and is a matter of international peace and security that necessitates a response. Resolutions also recognize different and differential impacts of all violations in conflict on women and girls. Soft power of mothers and women is not new. Here is a pacifist US song during WWI, the title is explicit “I did not raise my boy to be a soldier” (NY, 1915). Explicit and appealing are also the lyrics chorus and verse 1. This song is old more than a century now and yet the request mothers to stop wars, conflicts killing their children and other mothers’ children still belong these requests to the present times. Image of Palestinian and Israeli mothers, Jews, Muslim and Christians who founded a choir for peace purposes and one of the songs they sing together in English and Arab is precisely “I didn’t raise my boy to be a soldier”. In the same land, Israel and Palestine are women and mothers founded the women wage peace movement to encourage peace negotiations and to urge the enforcement of UN Resolution 1325. In 2015 a peace march was organized in the two countries, thousands of people of both sides joined it. Following the march, Israeli and Canadian singers and activists performed the song “a prayer of the mother” together with Palestinian singers. The promotion of peace, human development, intercultural dialogue and prevention of violence thanks to soft power of mothers is the core activity of Women Without Borders, an NGO based in Vienna founded in 2001. Among its commitments are the following: Working from the bottom up and empowering the female leaders of tomorrow and at the individual, community and global levels Supporting and inspiring women in the process of moving from victimhood towards agency Advocating for a future without fear, suppression and violence against women Introducing and normalizing the idea of mothers as the first line of defense against extremism in their homes and communities Bringing the voices of impactful local leaders to the attention of the world This is an example of restorative peace building and we can find here many topics we covered during our lectures and the transformation passive victimhood into agency, this bottom up empowering peace building, the idea that mothers bring about soft power etc. Among the leading projects of Women Without Borders is MotherSchools parenting for peace models, now also a father schools project has been activated. Parents are therefore the first line against extremism in their homes and communities, the MotherSchools aims at responding to the threat of radicalization by sensitizing women to their roles and responsibility in building community resilience, by sensitizing parents in preventing radicalization and violence from their children. Violent extremism and radicalization are a tragic issue today and governments all over the world resort to police and enforcement punitive interventions as 51 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ usual which proved to be largely ineffective or at least insufficient. This is why actions to counter violent extremism are now turning to more restorative approaches. For instance, the case of EU Radicalization Awareness Network RAN: to get the society a local community, get involved in preventing violent extremism and radicalization. RAN especially connects features, NGOs, workers, civil society, organizations, local authorities, academics and others. The core idea here is to counter radicalization not by punitive means or by control from enforcement agencies but to prevent radicalization at the very roots first line at the very *. Procedural justice, RJ all demonstrate how procedural fairness, respect for dignity, participatory methods and inclusion set the proper conditions for desistance from crime to take place. Studies and reports from UN and other international bodies show how prisons incredibly. Prisons are places where prisoners can radicalize, and they do in many cases. Good schools are not places where pupils radicalize, this is why teachers can be fundamental actors in preventing violent extremism and radicalization. Schools that manage to treat with full dignity all pupils even citizens, rich or poor, coming from well-educated families or not, these provide safe and respective environment as part of their role to teach democratic and social values and therefore to help students form their identity thus preventing them from wanting to go fight. This idea also applies to social inclusion and equality and thus social workers in civil servants have a role to play in avoiding extremism to grow. The RAN is structured thematic working groups: One of the most important working group is the EXIT working group that deals with the process of moving from radicalized violent mindset and or radicalized and violent environment towards mainstream societies. Youth, families and Communities working group (RAN YF&C) engages with and empowers youths, communities and families to support the prevention of radicalization leading to violent extremism. Extremely important from a RJ perspective is the Remembrance of Victims of Terrorism working group (RAN RVT), victims of terrorism both targets of attacks and those who have lost a relative are “involuntary experts on the harm that violent extremism causes to humankind”. Victims will be remembered, and their voices brought cost to counter radicalization. Prison and Probation working group (RAN P&P) Communication and Narratives working group (RAN C&N) Education working group (RAN EDU) Health and social care working group (RAN H&SC) RAN YOUNG The problem of violent extremism and radicalization is a major concern within criminal justice system because hardly as said prisons are number 1 place for radicalization besides Internet. Incredibly the very place meant to protect us from violent criminality is the place of birth and of growth of radicalization and extremism. The reasons are many but they deal in the end with what responsive regulation, procedural justice point out since the very beginning: punishment is an aggressive response and as such it strikes back whereas respect for dignity, procedural fairness, democratic empowerment and participation foster desistance which is an ally of positive peace. This is why it seems the UN in their UNODC handbook on the prevention of radicalization in prison, the importance of RJ to help extremist prisoners find their place back in the community and in dignity with dignity. This is a condition for desistance and for a positive and last-longing peaceful community. “Reconnecting with the victims and others who have been affected by the violent extremist prisoner’s behavior is a difficult process. In many instances, relationships and trust have been seriously damaged and cannot be repaired easily or immediately. RJ, processes, reconciliation and other mediated interventions, starting while violent extremist prisoners are still in prison, can help them find their place in the community. This is sometimes referred to as a “restorative reintegration process”. There is a growing movement to use restorative practices to facilitate the social 52 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ reintegration of prisoners returning to the community”. UNODC, Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to Violence in prisons, Vienna 2016 Lecture 8 - Dealing with the Past – Memory and Justice This lecture does not directly address topics mentioned in the compulsory readings, they indirectly do focus on some key concepts relevant for a discourse about RJ in both international and interpersonal settings. From a very practical point of view, what I will convey with this lecture is not properly part of what you have to study for the exam, our course is far too short and limited to address the many issues raised by RJ approach. The scene we will cover today remains somehow hidden in- between the lines on the book by John Braithwaite and Handbook on RJ. Today’s topics are going to nourish compulsory readings. Additional materials mostly bibliographical references are only recommended. What we will experience today is the impossibility to fully respond to the quest for justice together with the necessity to do so. In order to understand this, let me start with one encounter. Vera Vigevani Jarach was born in 1928 from a Milanese Jews family. Because of 1938 racist laws during Fascist regime, she escaped in Argentina in 1939, the rest of her family that remained in Italy was deported. Vera’s grandfather was exterminated in Auschwitz on 6th February 1944 on the very day of his arrival of the camp. Vera is the holocaust survival, she’s part of a family that did not survive and therefore she has a full status of victim according to international regulation we already addressed. In Argentina, a new life begun she married and became a mother in 1957 giving born to France, her only child that is a lovely girl. On June 25, 1976 3 months after military coup, Franca 80 years old by then is arrested or better kick napped and brought to ESMA, military school in Buenos Aires into a clandestine center for thousands. Franca is tortured and brutally interrogated for a whole month to die in one of the death flights – it means that she was pushed out of a flying plane into the ocean – water becomes like a rock when hitting with the body that disintegrates itself. For her mother, Franca remained desaparecido for long until 20 years Franca’s death that her mother came to know the horrible truth. Vera is a victim twice. She is one of the founders of a Spanish organization (Asociacion Madres de Plaza de mayo), another example of role of mothers in justice. Marco Bechis is an Italian Argentine movie director has dedicated a documentary to Vera, the noise of memory. This is available with English subtitles. Marco too is a victim and survivor. I am sure you know understand what I mean with the necessity and impossibility to justice, what justice can be brought to Vera, her grandfather and her daughter? Necessity and impossibility are contradictory concepts, and this is our challenge for today’s lecture. We will have to stick to this paradox, a lot will emerge from it, something close to a response is indeed possible, there is something to be found inside this tension. Probably, there are no solutions to the giant questions we will arise, only a striking for justice, attempts. The difficulties we will face today are part of such efforts. Our lecture is a way to offer something of an impossible and necessary justice. On one hand we will experience a moral and legal due to undue the type of injustices we will be talking about, on the other we will experience impotence and philosophical, political and even human impotence. When facing evil as in mass atrocities, collective violations of HRs and international humanitarian law, we will experience in even thinking of bringing justice when responding to crimes that are attacks to humanity as such, when addressing crimes with no name. We already talked about abuse of power that is another way to say a crime with no name yet. In fact, what we call today International Core Crimes are the result of experience, creativity of evil overcame the imagination of legislators, ICC have long been crimes without a name, the term “genocide” has been literally invented in 1945 by Lampkin and then progressively the term has been incorporated as crime 53 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ in international law and recognized as independent crime in 1948 in UN Convention on genocide which states on the Rome statute of ICC. Also the term “crimes against humanity” is still unclear but quite recent in the history of law in 19th century, still today the definition of crimes against humanity on article 7 of Rome Statute of the ICC has an open end, the last case, the last act mentioned and enlisted at article 7 paragraph 1 of ICC court refers to “any other inhuman acts of similar character intentionally causing great suffering to body or to mental or physical health”. Again, our worst imagination is not sufficient in drafting concepts that only evil can turn into unprecedented reality. Apartheid too is now a crime as stated in the definition of crime against humanity on art7 and is described in the Rome Statute. Think of the expression “ethnic cleansing” that has not yet been recognized as an independent crime under IL, the expression has been used in some US documents such as security council resolutions. It is still unclear which acts can be qualified as ethnic cleansing. Crimes used to have no name, crimes that now have a name, crimes that now stand in international and national binding provisions, crimes that still do not have a name. I want to stress and underline an aspect because it carries several victimological and criminological implications other than legal ones when talking about justice. If acts cannot even be * unlawful, how can justice be done’ how can injustices be acknowledged? How can justice be brought to victims? Isn’t it a secondary victimization for victims and survivors if humankind has not even created a term to refer to these acts? How can victims be recognized if language does not have even a concept to describe what has happened? Philosopher and holocaust survivor Hannah Arendt (1906-1985) have well understood the* and tragedy within the tragedy of not-knowing what to do, how to do justice in this unthinkable, unspeakable cases. These crimes without name, for which a name was found only ex-post that is only after because of evil making humankind no in practice what was not knowledgeable and thinkable in theory. According to Arendt, these crimes can neither be punished nor forgiven. Another argument by Arendt came out after the Shoah, the Nazi regime and WWII providing thoughts for today. Punishment especially retributive terms is simply impossible, there is never proportionality for such a scale, there is no way to measure and therefore respond or punish proportionally, retributive justice is powerless. Among the philosophers that worked on this there is Vladimir Jankélévitch(1903- 1985) assesses this issue directly in one of his articles concerning responses to the Shoah in terms of punishment or forgiveness: “One cannot punish the criminal with a punishment proportional to his crime: for in relation to the infinite all finite magnitudes tend to equal one another; hence the penalty hardly seems to matter; strictly speaking, what happened is inexpiable”- Critical Inquiry, Vol.22. Imagine yourself sitting and international criminal court judge and you have to decide which is the proportional punishment for a young paramilitary having killed thousands of people with his own hands or for a PM who was architect of the extermination of millions of people but has never touched a single person directly. Think of how to judge the killing of a single member in a context of genocide, that is with intent to destroy totally or in part a national ethical racial or religious group as such. Would you punish them more less or the same as killing of thousands? If you say less, aren’t you underestimating the gravity of genocidal intent as such? Aren’t you underestimating the worth and value of every single human being? Would you punish one genocidal killing more less or the same as the killing of one outside the frame of genocide and inside for instance the frame of crime against humanity, that is a killing committed as part of a widespread or systematic attack directed against civilian population with knowledge of the attack, which is the just punishment in these cases? Forgiveness seems impossible. Jacques Derrida (1930-2004) dedicated very important pages on this issue in several articles, what does it mean? Isn’t it the unforgivable that *forgiveness worth his name? “As I will not cease to repeat, it is only against the unforgivable, and thus on the scale without scale of a certain inhumanity of the inexpiable against the monstrosity of radical evil that forgiveness, if there is such a thing, measures itself”- To Pardon. The Unforgivable and the Imprescriptible. This is Derrida’s argument: “…yes, there is the unforgivable. Is this not, in truth, the only thing to forgive? The only thing that calls for forgiveness? If one is only prepared to forgive what appeared 54 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ forgivable (…), then the very idea of forgiveness would disappear. If there is something to forgive, it would be (…) the worst, the unforgivable crime or harm” – On Cosmopolitanism and Forgiveness, Routledge, 2005. As said, we have no answer to such questions, we must strive towards efforts on finding responses. In our next lecture, we will analyze which efforts have been made in the legal and political domains to provide response to gross violations of HRs and in fact one of the best books presenting this is entitled “After Hannah Arendt – Des Crimes qu’on ne peut ni punir ni pardoner” Antoine Garapon about crimes we cannot neither punish nor forgive. What is so peculiar about these crimes is attacks to humanity as such, this mass murder or atrocities, annihilation, what do victims and perpetuators experience? Unlike before, we do not have answers to this question. I provide just few scatches from survivals perspective, I convey a very general idea especially compared to the immensity of problems we have discussed: Victims of these crimes survived an event that should have put life to an end (crimes intentionally designed to kill, destroy, attack) Death known-by-acquaintance in practice not in theory, and being alive (some are dead people walking among the living) Being victimized by those who should institutionally protect (crimes, violations we are studying are perpetrated by governments, by the police, that is the victims have been victimized by those who have a positive duty to protect life) – imagine being in danger and in the position not to call the police because it is the latter itself that is the enemy. Feeling guilty for having survived, for not having saved others, for not having helped others – this is a paradox that shows you how important it is to treat victims respectfully as required by international legal standards we already analyzed – survivors feel often guilty for having survived, for not saving others, they feel ashamed for being powerless, unable to count and resist the oppressor. Existing for the dead among the living ones - It often happened victims feel a duty to exist for the dead among the living ones. They feel they have to carry the burden of the memory in the name of those who died The need for recognition- Recognition often implies narration to be recognized as victims, they have to tell someone what has happened to them therefore it is important for victims to connect to telling and listening. The need for truth is one of the most important, urgent needs of victims and need that punitive justice does not address (we already studied how judicial proceedings do not foster responsibility taking and truth telling, they bring about defensive attitudes which are opposite to responsibility taking and truth telling) Victims and survivors need the truth to be recognized and acknowledged which is also recognizing that victimization did occur indeed. Since facts are unimaginable, they are often unbelievable. Victims are often times not believed which results in terrible secondary victimization. Therefore, the need for recognition is central too and is associated with truth. We face here another tragic paradox, another necessity combined with impossibility: testimony and narration are for victims at the same time an impulse, a condition to be recognized, a burden, a healing or liberation process. Communication, narration, testimony is not always possible. What has been experienced is so huge, inexplicable that the very capacity to narrate, to testimony is challenged. Many survivors felt it was impossible to communicate what they have witnessed and undergone because it was unique and inexplicable. Finding words, a vocabulary to write and tell such phenomena is a very hard task in this case more than ever. Furthermore, the sorrow may exceed the resources of both narration and listening as Arendt pointed out in the capacity to bear what is being narrated that 55 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ is challenged. In one of her wonderful poems, Emily Dickinson stakes “tell all the truth but tell its length, the truth must * gradually or every man be blind”. We can find all these issues mirrored in Primo Levi’s (1919 -1987) account of the holocaust. He was an Italian Jew and a worldwide poet. He survived the holocaust after being imprisoned in Auschwitz. He is recognized as one of the most relevant witnesses of the Shoah because of his testimony in his poetry and because of the clarity of his accounts. Almost immediately, Primo Levi felt the compulsion to testify, the impulse to narrate. This impulse is intimately connected to a concern for justice and this is why this need comes together with the need to have an audience, to be listened to by listeners capable of bearing on enduring his unspeakable truths. In the “afterword of the periodic table” (one of his writings) and then in “the Drowned and the Saved”, when describing the world of Auschwitz assumes the sober language of the witness neither the lamenting tones of the victim nor the voice of someone who seeks revanche. Only in this way does a witness in the field of justice performs his task which is that of * for the judge. Interestingly, this passage ends with “I giudici siete voi”- we are the judges (readers). Among the readers, the listeners are us but also those who collaborated, the bias tenders who pretended not to know. In Levi’s onwards before there were oppressors or indifferent spectators now, they would be readers. He explains further “the things I had seen and suffered were burning inside of me, I felt closer to the death and living and felt guilty at being a man because a man has built Auschwitz and Auschwitz has gulped down millions of human beings and many of my friends. It seems to me that I would be purified if I told this story and I felt like…”. Here’s another quote from Drowned and the Saved: “…which the just man experiences when confronted with a crime committed by another, one feels remos because of its existence, because of its being irrevocably introduced into the world of existing things”. We know well how RJ can support reconciliation and positive peace, but RJ does not coincide with them, RJ opens the space of an encounter, a term which contains the words “to counter”. Accusation is the starting point in encounter, it is a way to address the difficult, impossible other. This is seen in one of the most dramatic poems written by Primo Levi and dedicated to the Nazi SS officer Adolf Eichmann: “Oh Son of death, we do not wish you death, May you live longer than anyone every lived. May you live sleepless five million nights, And may you be visited each night by the suffering of everyone who saw, Shutting behind him, the door that blocked the way back, Saw it grow dark around him, the air fill with death.”- 20 July 1960 The dynamic of accusation is an appeal to his necessary other for whom only recognition, truth in a word, justice can come. Often survivors explain how during oppression they have wished their oppressors to die but, in the aftermath, their desire and need becomes the opposite: to find the perpetuators alive, to question them. Let us know look at the opposite side: perpetrators. In cases of genocide, crimes against humanity, war crimes, violations of HRs things are very unique on their side too. There are many studies concerning the dynamics that lead people to become international crimes perpetrators. The issue is very complex, and I convey only general ideas. Again, holocaust studies are important but also other cases in recent history provides interesting fields of research. First, I would like to point out criminals are not in most cases mentally disturbed, sadists, studies show evidence that nearly each one of us under certain conditions and settings become capable of doing the unthinkable, it is not correct to believe perpetrators are different from us, they are ordinary people. On the contrary, the various circumstances in which each person’s destiny unfolds are relevant in becoming or not a perpetrator, a war criminal. Hannah Arendt not only studied those who became capable of evil and primarily Eichmann for whom she drafted the concept of “banality of evil”, she studied also those who kept the faculty of a just judgment and were able to act in the right way. This “moral personality” is quite interesting in comprehending the ways to counter evil. Second, I would like to point out how massive violence is usually presented and introduced by the making up of the enemy. A propaganda that may be carried out with many different tools, satire, political discourse, media, racist legislation and so on. The enemy of course is presented as dangerous and powerful, the enemy ideology constructs a 56 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ rhetoric that engenders fear and self-defense. This easily results in hate and isolation of the targeted groups. Once the enemy is created, it is dehumanized. This may happen again in several forms as emphasized the claim for intrinsic distinction between the enemy and us to underline domination on one side and inferiority on the other. This causes an asymmetry that proves essential for mass destruction, to demonstrate how different from us enemies are, they are presented as non-human. It is the case for instance tuzi propaganda. One systematic mass violence occurs, “victims are dehumanized by violence itself and deliberately inflicting conditions of life calculated to bring about physical destruction” – this is a quotation by the very definition of the crime of genocide. To bring about physical destruction but also moral one. Victims are diminished in their humanity by replacing their real names with numbers, by annoying their individual personality, by cutting their hair and compelling them to wear ugly dirty uniforms and so on. Victims are humiliated exploited isolated and then exterminated. By inflicting non-human conditions of life to victims, their representation as non-human is reinforced and the ideology being the deadly machinery is therefore strengthened. “Purifying and destroy” is the title of an interesting book on the anatomy and political use of mass violence, the superiority vs. inferiority ideology, the asymmetry in violence is also strengthened by the dissemination of ideas concerning purity, cleansing, immunization. To be carried out, massive and collective violence needs some sort of organization. Largest scale victimization needs large scale crime industry, technology and incorporation of many people create favorable conditions of fragmentation of responsibility. This is turn brings about the fact each individual provides a causal contribution to the deadly machinery, each contribution is never unique cause of evil that is fragmentarily committed by many hands. Violence in the 20th and 21th century, from WWI to present conflicts demonstrate how the use of technology not only allows the killings of thousands of people but it also contributes to the widening the distance between the perpetrators and the victims. This distance is at the same time physical, moral, social geographical. Killers are not mingled with their actions, often times they are not even there together with the victims. That deadly and destructive actions delegated to machines operating in their absence. Victims themselves may be used to do the dirty work and complete that of technology. This was the case of special squads of prisoners in concentration camps where the prisoners themselves were in charge the crematoriums and it was them who were daily dealing with crimes. One powerful tool in delivering mass destruction is obedience to authority. The crimes we are studying here are crimes of obedience, never forget that in human history, these have been far more lethal and horrible. Obedience here is to an ideology, to authority, to unlawful laws, the dynamics of obedience has been subject of interesting studies by the US Psychologist Milgram. When obeying tend not to be feel responsible for their actions, to act in their own absence, when obeying they feel bad in acting but act may be blaming the authority but without question or rebelling to it. Let us now come back to our paradox of necessity and impossibility. Something that can still be done is to remember. The topic of memory in relation to justice, IR is absolutely fascinating though controversial. I cannot convey systematic ideas, but I will share a few dilemmas by outstanding thinkers, historians such as French Ricoeur, Avishai Margalit and Tzetan Todorov. These thinkers will provide us with a sort of conclusion in line with our approach. How can we tackle the problem of a violent past? Todorov asks himself. Is memory a form of justice for crimes cannot be neither punished nor forgiven? If so, what kind of memory can bring justice and reconciliation? We can bring more conflicts and divisions. “Memory is knowledge from the past, is not necessarily knowledge about the past” Magalit “memory brings revenge as often as it brings reconciliation and the hope for reaching the catharsis through liberated memories may turn out to be an illusion”. Here are some questions for you to think about whose answers have political, social, psychological legal implications that in no way we can address: Why should be remembered? To whom do the dead belong? To whom to the victims belong? What should be remembered? Whose memory? Who is entitled to remember? How to remember? Why to remember? Todorov points out how remembering is always by definition an interaction between forgetting and complete preservation of the past. Since 57 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ memory is intrinsically selective because we cannot remember everyone and everything therefore some degree is needed. Since memory is so what should we remember, the evil or the good? Who should be remembers? Who are the victims in the frame of mass atrocities that include thousands of people? even victims themselves carried out the dirty work, should victims and perpetrators be remembered together or separately? To whom the dead belong? Whose memory is the just memory, of victims? Which place the memory of perpetrators have in a just memory? Who has the right to forget? Who are the victims? Malgalit provides the interesting concept of moral witness “being a moral witness involves witnessing actual suffering not just intended suffering, amoral witness has by acquaintance of suffering, the paradigmatic case of moral witness is one who experiences the suffering one who is not just an observer but also a sufferer”. Malgalit also talks about communities of memory that gather close those who have a special bond because they have shared victimization or heritage of conflict and atrocities. Should the community of memory be a large to include a whole country, population among which are victims and survivors, perpetrators or family? Think of how much RJ is needed to create a good just memory, that does not create new divisions nor conflicts. From the point of view of political scientists all questions can be raised since there is a politics of memory. Quoting Todorov and Ricoeur we can ask: which are the uses and abuses of memory? In front of a wounded history, a traumatic past, how cane peoples, individuals come to the re- appropriation of their past in ways that reopen the future? Memory can be manipulated for political reasons and for oppressive violent political purposes, memory can be used to freeze and block transformation and development and prevent reconciliation. Is there a just memory? Is there a good policy of memory? Ricoeur has introduced the concept of just memory. How is the past transmitted to present and new generations? How is the past passed on in ways that are not radioactive? Radioactive memory is deadly in stressing more evil to younger and future generations, an ever ending cycle of violence, hatred affected even those who are not even born when atrocities took place. It is now time to sum up and look for a conclusion. We can find some responses to aforementioned questions in the following thinkers: as Todorov says, “Those who do not forget the past also run the risk of repeating it by reversing their role: there is nothing to stop a victim from later becoming an aggressor. The past has no rights of its own. It must serve the present, just as the duty to remember must serve the cause of justice”. Todorv also introduces two relevant opposed concepts: literal memory and exemplary memory. Events from the past can be revisited literally in this literal concept, facts can never be overcome and therefore present is subjugated to the past which never passes. The past stakes a claim to the future. Memory is liberating. Each uses the past in view of the present and for the sake of the future, it draws lessons from the past injustices to avoid present and future ones. Past finds its right place, it does not block the future but helps to build a better future. According to Todorov another word for literal memory is justice. But memory needs narration and this needs enough respect for each moral withness either on the side of victims or perpetrators. Narration needs enough respect for each moral witness to be supported when telling their inexplicable accounts. As Paul Ricoeur explains, this exercise of memory is here an exercise in telling the story otherwise, by telling and listening we can put light to the past. Past facts of course remain unchanged but we can discover new meaning and the story can be told otherwise and the story can go on in the present and in the future and come to a different end as in Vera Vigevani Jarach journey, victims do not resuscitate, Franca does not come back but the future can be different. This exercise implies according to Ricoeur letting others tell their own stories especially founding events which are the ground of a collective memory. He states, “it is very important to remember and what is considered a founding event in our collective memory may be a wound in the memory of the other”. Again “whereas the traumatic character of past humiliations brings us back permanently towards the past, * of the same events is directed towards the future and regulated towards justice”. Here Ricoeur quotes Todorov “It is the power of justice to be just regarding victims, just also regarding victors, and just towards new institutions by* we may prevent the same events from recurring in the future”. So, “we 58 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ have here a work on memory which reverts from the past to future, and this revision from past to future is by way of drawing out the exemplary significance of past events”. Ricoeur to remember not only victory and success but to ensure a parallel history if victimization, to memorize the victors of history, the forgotten and the humiliated. It is recalled again the need to reconcile ourselves with the past: “It is necessary for the continuation of action that we retain the traces of events, that we be reconciled with the past, and that we divest ourselves of anger and hatred. Once again, justice is the horizon of both processes. Let us conclude by saying that at this point in our history we have to deal with the problem of evolving a culture of just memory”. The woman we met at the beginning of this challenging lecture, Vera Vigevani Jarach seems to have found the way towards reconciliation. Along the line of reconciliation is the issue of justice as memory. Here the topic is the memory of good. We tend only to remember the evil, also victims do so but is fundamental the goods lights too. The memory of good This is the fascinating case of the Righteous Among the Nation: those who had the “courage to care”. An Israeli initiative to pay tribute to non-Jews who put the life at risk to save them during the holocaust, there are people of all backgrounds from royal family members to peasants, from atheist to Muslims. The Holocaust Museum in Jerusalem has created an official program, a database of Jews and a garden where a tree has been planted to remember each Jews. As explained by Elie Wiesel “in those times, there was dark everywhere, all the gates of compassion seemed closed, Jews were dying and the outside world adopted an attitude either of complicity or of indifference, only a few had the courage the care, these few men and women were helpless, vulnerable what made them different from their fellow citizens. Let us not forget there is always a moment when moral choices made and so we must know that good people who helped people during the holocaust and we must learn from them, and in gratitude and hope, we must remember them”. The relevance of remembering the good has also been recognized by the European Parliament: Declaration of the EP of 10 May 2012 on support for the establishment of a European Day of Remembrance for the Righteous that points out how to remember the good is an essential process of European integration because it teaches that everyone can always choose to help others and defend human dignity and that public institutions have a duty to highlight those personalities who challenged crimes against humanity and authoritarianism with individual responsibility. Italy passed the law. Among NGOs advocating the memory of good is The Gariwo - the Garden of the Righteous Worldwide a non-profit organization based in Milan with international coworkers. It creates gardens of the righteous worldwide and use the communication means, social networks and public events to spread the message of responsibility. Lecture 9 Transitional justice, post-conflict justice, international criminal justice I will provide a very simplified overview of the justice mechanisms established to respond to gross violations of HRs and international core crimes. I will then focus on the potential of RJ in dealing with such cases. For the study of these topics, you must refer to the book of John Braithwaite with provides for references to this topic with a special consideration for South-Africa paramount experience (chapters 2, 3, 4, 6). Also, the new edition of UNODC book on RJ has introduced references to the role RJ plays in transitional settings as announced last week we can decide to study alternatively the new edition that has just been released, the previous is the one we have on bb. In case you prefer the second option, in the slide you can find the main quotation from the recent handbook concerning RJ in transitional settings. I would like you to look at the definition of “Transitional Justice” in the Stanford Encyclopedia of Philosophy, an online encyclopedia. This entry of transitional justice is indeed extremely complete 59 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ account of the issue. In preparation to this lecture I invite you to keep in mind the analysis we carried out in lectures n.2,4,7 and 8, trying to make connections between the issues we will afce today and theories of justice, the concept of positive and negative peace we worked on in lecture 4, peacebuilding and peacemaking we addressed in lecture 7 and the topic of memory and justice, the enigmas and paradox (impossibility vs. necessity) this poses. Conflict resolution mechanisms and models, we studied already will come back to us today, I remind you of adversarial methods based on adjudication and punitiveness, negotiations and RJ. We will see these three models and methods through the major strategies the international community and single states have put in place in response to mass atrocities, large scale abuses and other violations. The question during our last discussion was about justice after horrific violence we have tried to scatch how responses stand at the very heart of attention between possibility and impossibility of justice. Now the question for today is: how can societies in the aftermath of conflicts, wars, dictatorships, repressive and oppressive regimes moves towards stable, democratic and possibly reconciled conditions? This is what Transitional Justice is about. According to the UN definition, transitional justice must incorporate a wide and multilevel range of interventions that include all sections of society. Transitional justice expands the notion of justice and presents it as a combination of several elements each one difficult to attain. First, in TJ justice embraces on one hand the tasks traditionally attributed to the judiciary and judicial system, investigations, truth seeking, accountability, justice mechanisms, individual prosecutions although these same tasks and mechanisms must be adapted to the specific context of addressing mass atrocities and victimization. Second, justice here includes apologies, reparation and victims’ redress. This task is made extremely difficult and complex by the large number of victims and by the very peculiar condition of them we have discussed in lecture 8 such as the burden to narrate and testify. Victims’ redress and reparations is made complex also by the variety of victims’ needs, of protection recognition, truth, reparation. Complex needs practical material psychological, emotional, social, cultural and even spiritual. Victims’ needs are at the same time the needs of individuals, family, communities, targeted groups and entire populations. Reparations may be material, economic, symbolic. Examples of reparations are free accesses to health services, social insurance, economic compensation, public apologies, access to education. To implement reparations programs, both adequate funding and stable economy are necessary. Something that can be hard to get in transitional context and in the aftermath of wars or armed conflicts. Access to reparation must be fair and equal and implies in turn the identification and recognition of who the victims are and we know how blurred the boundaries between victims, perpetuators, collaborators might be as Primo Levi pointed out when in The Drowned and The Saved he wrote about the grey zone which does not separate the victims from the perpetrators. Third, in transitional justice, justice also reform of legal system for instance the legally binding recognition as independent crime of violent acts that during the previous regime were not enlisted, did not have a name. Part of the legal reform are also the following actions: (a) the state compliance with international humanitarian law, (b) the state adherence to HRs conventions, treaties, additional protocols, (c) the state acceptance of optional compliant procedures and for instance also the ICC international criminal court, (d) the state reform of domestic law to implement the states’ obligations to respond, ensure and protect HRs. Fourth, in TS setting justice may include institutional reform such as the reorganization of the whole political and institutional structure, appointment of states’ representative, the function of the administration and of the government, institutional reform may also include lustration and *** of public officials and employees. Lustration concerns the delicate task of purging, cleansing, cleaning the traces of previous violent element from both the ideology and public administration. This is the case for instance of the de-Nazification of Germany after WWII. Purging and cleansing is extremely problematic. Once again, boundaries between perpetuators, collaborators, victims are blurred. In addition, lustration may appear in conflict with freedom of expression, democracy and political freedom especially when the transition is seen by sectors of society as the victors’ establishment. So, *** of public employees means the control of records and work for the new state that often times are by necessity the very same people who were 60 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ working under the former regime and this happens in the army, in the public administration, in the public legal entities. Fifth, in TJ justice also absorbs cultural measures and initiatives such as monuments, preservation of tragic events occurred, museums, public ceremonies, educational activities, documentaries and support of public engagement program. This are very important measures that require though a just and inclusive politics of memory and to take sides of what Todorov cause the exemplary memory opened towards the future and new future as re-discussed in our previous lecture. If cultural measures are not this inclusive respectful participatory nature, we may say of this restorative nature, they can end up being conflictual and more divisive. TJ: …importance of a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures, including, among others, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combinationthereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the State and promote the rule of law in accordance with international HRs law. The scope of TJ by UN is inter alia as we read “to ensure accountability, to serve justice…”, these objectives are challenging. In the background stand all relevant issues underlying by a restorative peacebuilding approach and by the politics of memory, remembering and forgetting, forgiving, grieving and educating, overcoming divisions and taking distances from the past, we know by now that transitional justice can better address its ambitious aims if it works in combination with RJ and restorative peacekeeping, peacebuilding, peacemaking. This set of challenging aims (Truth, Justice and accountability, healing, reconciliation, remedies to victims, reparation, rule of law, guarantees of non-recurrence) draws the line of what the UN calls impunityon this side we have what is not impunity and responses or non-responses are impunity. Among the legal tools and documents drafted by UN on TJ within the states’ obligation to protect HRs are a set of principles requiring actions to fight impunity. The term “Impunity” must not be misunderstood combatting implies punishment per se, what is deemed necessary by UN is to avoid the lack of any response and to ensure the following principled rights: The right to know which in turn embraces: Inalienable right to truth The duty to preserve memory The victims’ right to know and its effectiveness The right to justice The right to reparation The right to guarantee of non-recurrence (ECOSOC, Commission on HRs, 2004, 2005) – Set of principles for the protection and promotion oh HRs through action to combat impunity Although UN recommends use of RJ, it is indeed not so keen on measures other than criminal punitive justice in response to large scale atrocities. In fact, the UN has promoted and established ad hoc international tribunals and ICC which are not restorative, they use criminal law. Furthermore, in this principle. To combat impunity, a set of restrictions are enlisted and these concern, among others, 61 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ restrictions on amnesties, asylum, prescription, extradition, justifications to due obedience and also restrictions on the effects * disclosure. This shows how problematically the UN endorses punitive responses to impunity while the UN never openly affirms a right to conviction or * perpetrators. Victims and affected populations’ needs deal much more with truth and recognition rather than conviction with the guarantee of non-recurrence rather than punishment and the same UN report of 2004,5 that provides the set of principles to combat impunity shave lights on features that are typical to restorative peacebuilding and diplomacy. One of the reports on combat impunity in fact states “turning from law to practice, recent experience reinforces a central premise of the Principles: an effective programme for combating impunity requires a comprehensive strategy, comprising mutually reinforcing measures. Another important factor behind successful programmes is the broad participation of citizens, including victims, in deliberations about their design. More generally, the study highlights the central role of civil society in ensuring that States meet their obligations to protect human rights through effective measures of truth, justice, reparations and other guarantees of non-recurrence”. This is a sort of re-description of restorative diplomacy and peacebuilding. Worth mentioning in our RJ module is also the UN Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international HRs law and serious violations of International Humanitarian law (HRs resolution 2005/35). We find here again a definition of victim which is fully consistent with the UN Declaration we already studied. The core issue here is the victim’s right to remedies that is threefold, it comprises of: The right to an equal and effective access to justice The right to an adequate, effective and prompt reparation for the harm suffered The right to access to relevant information concerning violations and reparations mechanisms Reparation for the harm suffered in turn includes: Restitution such as restoration of liberty, enjoyment of HRs, identity, family life and citizenship, returning to one’s place of residence, restoration of employment and return of property. Compensation (economic) Rehabilitation and support Satisfaction that means truth-seeking, restorative programs such as apologies, commemoration and tributes to victims, judicial and administrative sanctions against person liable for the violations are also problematically mentioned under this entry reparation for the harm suffered. Guarantees of non-repetition, they in turn include protection of persons, prevention mechanism, law reform, and the control of people who might be still active connected with past regimes. I recommend connecting these basic principles on remedies, redress of victims with the topics we analyzed, particularly the establishment of the trust fund for victims in the system of ICC (lecture 4). One of the most recent and interesting examples of transitional justice mechanisms combining a multilevel system is Colombia’s comprehensive system of truth, justice, reparation, non-repetition – Sistema Integral de Verdad, Justicia, reparaciòn y No repeticiòn. This comprehensive system follows the final peace agreement conclude in 2016 conclude by the Columbian government and the revolutionary armed force. This system includes different mechanisms among which the special 62 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ jurisdiction for peace that operates also according to RJ values. Before moving on to an overview of multilevel justice mechanisms that dominated the field of TJ in this and the previous century, let me just attrack your attention to a series of online manuals published by the Office of UN High commissioner for HRs which concern the implementation of rule of law in post-conflict transitional contexts (available on bb), they address directly the topic we are covering in this lecture and among them, I want to mention these three: the one concerning truth commission 2006, reparation programs 2008, amnesties 2001. “Architectures” of justice in transitions TJ has developed as a field of practice and research especially in the last and current century, from the end of WWII until today the architectures that human king has built to the demand of justice after conflicts and large violations of HRs are basically three and they are sometimes combined. The three architectures module (defined also in the UN) can be summarized in the following keywords: Judgement & punishment International/ mixed/ national criminal tribunals & courts; criminal proceedings; criminal punishments Amnesty & forgetting Amnesty laws Truth commission & amnesty laws Truth & reconciliation Truth & reconciliation commissions; RJ The first module - Judgement and punishment - is nothing else than bringing the most classic concept of justice into the paradoxical tension that sometimes neither can be punished nor forgiven. It is the adversarial judicial and punitive conflict resolution mechanism that comes together with neutralization, retribution, deterrence, incapacitation. We know

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