Johan Galtung: ROADS TO PEACE: ADJUDICATION AND MEDIATION 5-06-15  	We are exploring the relation between peceful approaches to peace as reduction of violence, a social evil causing suffering of humans and nature.  Are they incompatible, indifferent or supportive of each other?
 	The legal approach to be presented by Baltasar Garzón is universal jurisdiction, bringing justice to all corners of the world.
	Rationale: many crimes are against humanity, and since humanity is all of us, we all have legal standing.  Consequently, a crime against humanity is justiciable not only in the state seen as the place where it was committed, but all over.  Jurisdiction has to be universalized.
   	The legal approach to be presented by Mohamad Ariff is tribunals of conscience, in the tradition of the Bertrand Russell tribunals.
	Rationale: to give voice to the victims, not only as witnesses to crimes but as bearers of the suffering.  Consequently, the focus is less on the accused with adjudication-sentencing-punishment and more on the suffering of the victims, thereby stirring the conscience of humanity.    	The approach to be presented by Johan Galtung is to reduce violence by conflict solution, removing a key cause: unsolved conflict underlying the violence.  The violence can be direct to the body, mind and-or spirit by acts of commission; indirect as structural violence sustained by acts of omission; or as cultural violence justifying the other two, often by theology or its Enlightenment successor, ideology.
	Rationale: underlying unsolved conflicts are the root causes of violence and the root of conflict is incompatible-contradictory-clashing goals so that pursuit of one blocks for the other; in disputes between several parties or dilemmas inside oneself.  The frustration leads to mutually reinforcing attitudes and behavior of hatred and violence.
 	Consequently, underlying conflicts as a cause must be identified, and solved by making goals compatible in a sustainable way acceptable to all parties concerned.  The process is usually called mediation.
The TRANSCEND approach to mediation includes three basic tasks:

* mapping of the conflict: the parties, their goals, the clashes;
* legitimacy of the goals?: by law, basic human rights, basic needs;
* vision of a new reality meeting all legitimate goals reasonably.

The method is 1-on-1 dialogues, mutual search, with all parties,

one at the time for free expression.  There is a four-point agenda:

[1]  future-positive: what would you like to see happen?  Idealism
[2]  past-negative: what really happens?  Realism
[3]  past-positive: was it better in the past?  Nostalgia
[4]  future-negative: what are you most afraid of?  Worst case

	The task is to make the parties see their situation from all four angles--easily frozen into personality traits!--with a second round following the first, and so on, trying to bridge the gaps between the constructive and the destructive, and the past and the future.  The process is anchored in future-positive for all parties, their ideals.
Based on this a  vision is proposed--never imposed--to the parties for dialogue; to be followed by vision-promotion and vision-realization.
 	Ideally the parties should be able to do all of this by themselves, but may be neither capable nor willing.  A mediator-friends, colleagues, neighbors-may help; but they may not have what is demanded of a good mediator: empathy, nonviolence, creativity--and experience.
 	In Transcend Track Record 35 cases of mediation making a positive difference are mentioned.  They are efforts to create a mew reality; not realized because of acts of omission.  The work was often time-consuming  as evidenced by being from past decades.  No party was singled out as being right or wrong; the focus was on their relation as bad, inadequate and other realities emerged.  For this to happen the legitimate goals of the parties were by and large met.  But the new reality gave them something new on top of that win-win; a sustaining factor. Two examples.
	A micro level conflict: a marriage between a businessman and his high school sweetheart; now in their mid-forties.  She turns Buddhist, blames him for only thinking of money, not inner wealth; he blames her for being esoteric, impossible to talk with.  Where is the conflict?
	Not between business and Buddhism--that can be handled by "you do your thing, I do mine, and we live together".  Both wanted to convert the other who did not want to be converted; two clashes, in fact.
 	The vision proposed was running a book-shop for Buddhist books  based on his business talent and her dedication, both very legitimate.  It worked, neither was converted but she did accounting and he read  books; and a joint project filled the gap after the children had left.
 	A macro level conflict: In 1967 the Council of Europe asked for dialogues in 19 foreign ministries from Washington to Moscow--NATO, WTO, Nonaligned--to explore their future visions for Europe.  They liked the UN Economic Commission for Europe, and disliked "security" by nuclear terror balance, with its risks, and with its wars by proxy in Asia.
 	The vision proposed was a UN Security Commission for Europe, with the parties dialoguing about the military, economic, political aspects of security.  Much vision promotion work was done in Finland where the Conference for Security and Cooperation in Europe emerged from 1972, and in Czechoslovakia lifting (with USSR) the conference to an Organization.
What is wrong about unsolved conflict?  Frustration leading to aggression or apathy, to boiling or freezing relations.  Stagnation when not used dynamically.  The conflict solution approach is indispensable; adjudication does not remove the deeper causes that reproduce violence.
 	Adjudication picks up violence as a crime to be punished, with the hypotheses of individual and general prevention.  Mediation picks up conflict as a cause to be removed, bridging legitimate goals; with the hypothesis that conflict solution removes the violence.
   	The hypotheses can be tested; both approaches are falsifiable.
  	They agree about terminating violent conflict, the question is how.
 	There is a third approach, TRC: reconciliation in return for truth.
	And a fourth approach: violence against violence; incapacitating, removing the violent party.  But that is not peace by peaceful means.

Below is an effort to spell out the approaches systematically: METHODS OF CONFLICT TERMINATION FROM ADJUDICATION TO MEDIATION         
Methods	Forma- tion	Orienta- tion	Third Party Role	Process	Outcome	
Court, criminal	Two parties	Party	Decision- maker	Adjudi- cation pro et contra	Asymmetric: guilty or not Sentence, Punishment	
Court, civil	Two parties	Party	Decision- maker	Adjudi- cation pro et contra	Asymmetric: liable vs not Decision: Costs	
Arbi-tration	Two parties	Party	Decision- maker	Idio- syncratic	Asymmetric: Right vs wrong	
Judicial mediation	Two parties	Relation	Facili- tator	Party ne- gotiation	Symmetric: Settlement acceptable, sustainable?	
Harvard mediation	Any number	Relation	Dialogue partner: from Position to Interest	Party dialogue	Symmetric: Settlement acceptable, sustainable?	
TRANSCEND mediation	Any number	Relation	Dialogue partner: for goals, legitimacy, new reality	Creative party dialogue; new reality	Symmetric: Settlement acceptable, sustainable?	
	There is much history in this Table, from court-based methods via the two derived from that tradition, to two forms of mediation.  But the basic dividing line is defined in Column 3, Orientation: is the focus on the parties, or on the relation between them?
The first three are party-oriented, guilty or not, liable or not, right vs wrong; the last three are relation-oriented, acceptable-sustainable or not.  Adjudication vs mediation.
   	The problems of adjudication follow from the Table:
* bilateral, "vs", and based on one dimension (ratio decidendi);
* focused on perpetrator, victims easily forgotten;
* focused on acts of commission, not on acts of omission,
 hence focused on direct, not also on structural violence;
* asymmetric, producing winners and losers, white or black;
* generally not solving any underlying conflict;
* and the (threat of) punishment may cause more crimes not to be    caught, and can be seen as legitimizing the use of violence.

The problems of mediation also follow from the Table:
* complexity--any number of parties and dimensions--is time-consuming;
* mediation is symmetric, perpetrator vs victim is not;
* acts of commission are finite in numbers, acts of omission not;
* painting everybody equally grey, white and black;
* generally not reinforcing values of right vs wrong; anything goes;
* and the absence of (threat of) punishment makes deals non-enforceable.

 	The weak points of one are the strong points of the other; they are complementary rather than contradictory, indifferent and supportive.
	But the six problems must be taken seriously, they are built into mediation.   Complexity is time-consuming; reducing to 2 parties, 1 goal may deform, not transform.  Peace education in schools with conflict mediation could spread to couples-families and work relations; SABONA, Transcend in daily life, does that.  Peace journalism is crucial.
	Lack of enforcement: the power in mediation is positive; adequate visions are compelling; and their relization carries their own reward.
	Adjudication goes to one root in its focus on the perpetrator and can do so quickly; removing the perpetrator removes an immediate, major cause of direct violence not of elusive structural violence; there may be attenuating factors but some are more guilty-liable than others; sentencing reinforces values of right and wrong.
 	First conclusion: as they complement each other all approaches should be used, picking up different parts of the conflict-->violence spiraling, mutual causation, conundrum.  The question is how.*
	The two legal approaches presented are based on different aspects of adjudication: universalizing, and giving voice (Russian: glasnost').
Second conclusion:

* universalizing yes, but to jurisdiction the six problems above apply;
* voice to victims yes, but the victim/perpetrator divide is not sharp,    a yin/yang perpspective on both is generally more realistic;
* the approaches can be combined by universalizing conscience tribunals.

    Universalizing jurisdiction with the voice of the victims should have preventive effect against such crimes against humanity as genocide, torture, and starvation by acts of omission to provide food and water.
 	But the six problems of adjudication must be taken seriously.
Bilateralism and asymmetry between winners and losers are built into the system; and courts were not designed to solve root conflicts.  But the victims do not have to be forgotten: tribunals of conscience give full records of the suffering of the victims, not only to their testimony.  Acts of omission can be included, even mandatory for crimes against humanity.  Solving conflict can be built into adjudication by judicial mediation being part of the process; with a judge as mediator.
	A critical point is the reliance on punishment for enforcement.  Criminalization, not only of the act, but of the actor as a law-breaker, is in itself punishment when made public.  A law is a norm at a higher level, still higher is the commandment.  Being known as a law-breaker carries considerable stigma.  This was the rationale behind the Mandela-de Klerk-Tutu designed TRC--Truth and Reconciliation Commission--in South Africa, giving amnesty in return for confession (and contrition and compensation, A against 3C)-opening for reconciliation.
 	Hawaiian and Polynesian culture in general have a deep approach to conflict solution/trauma conciliation: ho'o pono pono; setting right.  The perpetrator explains why the act of commission; victim and others their acts of omission, what they did not do to prevent what happened.  The perpetrator suggests the punishment; the victim and all others how they can turn acts of omission into acts of commission.  The method is very powerful.  It does not exclude adjudication, but if engaged in may lead to reduced punishment--ho'o pono pono (more than) compensating.  	Thus, adjudication and conflict solution can be combined:

* by applying them to both ends of the conflict-->violence complex;
* by building solution into adjudication through judicial mediation;
* by building adjudication into mediation by training mediators in law;
* by having solution (partly) compensate for punishment;
* by having conciliation (partly) compensate for punishment (TRC);
* by sentencing a perpetrator to prepare solution and conciliation.

	Third conclusion: adjudication and mediation reinforce each other, provided acts of omission are included, and punishment is softened.

*  The book by Johan Galtung et al, Abolishing War, Transcend University Press 2014, has as subtitles: Criminalizing War, Removing War Causes, Removing War as an Institution; and 33 complementary ideas about how.  PART II by Irene Galtung, A Jus Cogens Approach, applies the human right to life to death by starvation for lack of food and water: omissions.