• 1 Communication from the Commission to the European Parliament, the Council, the European Economic an (...)
• 2 T. Gavrielides, “Contextualizing restorative justice for hate crime,” Journal of Interpersonal Viol (...)
• 3 M. Laxminarayan, Promising strategies of restorative justice in anti-LGBT hate crime cases, LetsGoB (...)

2Hate crime has been argued to be one of the most severe forms of crime as it not only has may have serious negative psychological and physical consequences, but it could also lead to a painful attack on one’s identity which can be subsequently internalized and have a detrimental long-term effect. The EU strategy (2020-2025) on victims’ rights1 recognizes that hate crime victims comprise a particularly vulnerable group, and services need to consider their unique experience. Furthermore, the Fundamental Rights Agency (2016) put forth numerous opinions around access to justice for hate crime victims: Ensuring a more comprehensive and coordinated approach for support services; reaching out to victims and encouraging them to report crimes; introducing specific hate crime offences into criminal law; and raising awareness of justice professionals through training, among others. Linking hate crime to other forms of conflict resolution (e.g., restorative justice), has not been given much attention, although in more recent years there has been a rise with those that have explored this issue in more detail,2 including a two-year funded project exploring the opportunities for restorative justice in anti-LGBT hate crime cases.3

• 4 L. Hein and K. Scharer, “Who cares if it is a hate crime? Lesbian, gay, bisexual and transgender ha (...)

8Hate crime, although still occurring to a larger extent and reportedly at an increasing level, has been gaining more attention in the European context in the last years and greater protections are being put into place both with national and international mechanisms. In these instances, the identity aspect is recognized as an exacerbating factor when referring to harm. Undeniably, victims of anti-LGBT hate crimes represent a vulnerable group due to this attack on their identity, and in many cases, ongoing abuse and discrimination that may have already been occurring for years. Impact on victim well-being is exacerbated due to this target on identity and personality, which may lead to a heightened sense of insecurity or helplessness, and in some cases internalized homophobia.4 Three factors in particular should be noted when exploring the potential for restorative justice in hate crime cases: (1) the impact on identity; (2) the role of community; and (3) hate crime offending and changing behaviours or values.

• 5 B. Perry, In the name of hate: Understanding hate crimes, New York, Routledge 2001.

9First, perhaps most notably when discussing hate crime and the difference with other violent crimes, is the attack on one’s identity. Perry5 addresses this in her doing difference theory, which argues that such overt discrimination results from a culture of segregation, and marginalization of those who are perceived as ‘different.’ Perry links power hierarchies and perception of the other - arguing that a lack of belonging results when an in-group is created - and those perceived as different are rejected and potentially feared. When this fear leads to helplessness and insecurity of the majority group, emotions may shift to animosity towards the minority group in order to gain a sense of control. Yet, fully understanding how to address the harmful effects on one’s identity is complex and requires more exploration.

• 6 M. Walters, “A general theories of hate crime? Strain, doing difference and self-control,” Critical (...)
• 7 J. McDevitt, J. Levin, and S. Bennett, “Hate crime offenders: An expanded typology,” Journal of Soc (...)

11Third, when understanding conflict resolution, it is important to examine the reasons behind perpetration of criminal acts and what that may mean for changing behaviours. For example, when perpetrating hate crime, offenders may make attempts to defuse responsibility to a greater extent than non-hate-based crimes or they may entirely deny that identity played a role in offending. In assessing the state of affairs in terms of hate crime offending theories, Walters (2010)6 offers a holistic view integrating both ‘doing difference’ and strain theory, to argue that while both play a significant role (i.e., perceptions of difference in identity and socio-economic insecurity, respectively) and share components such as fear; there may be a missing link of self-control. While it is outside of the scope of this article to analyse hate crime offending, it is important to outline the key explanations in order to understand how to properly address the crime, particularly when considering the victim. Understanding hate crime motivations, moreover, helps to gauge the appropriate response. For example, where thrill seeking is a main motivation (often incidental in nature) or the perpetrator is following orders (in case of war and conflict), change is more likely when compared to a more extremist view with a desire to cause pain to anyone who belongs to a certain group. For this reason, recognizing that typologies of motivation and offenders exist7, illustrates that some cases might be more appropriate for mediated conflict resolution when compared to others.

• 8 Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victim (...)
• 9 M. Walters, Hate crime and restorative justice: Exploring causes, repairing harm, Oxford, Oxford Un (...)
• 10 N. Harris, L. Walgrave and J. Braithwaite, “Emotional dynamics in restorative conferences,” Theoret (...)

12The primary aim behind restorative justice to address the harm that was caused and look for ways forward both for the victim and offender suggests an obvious application also in hate crime cases. Restorative justice has been defined as “any process which enables those harmed by crime, and those responsible for that harm, if they freely consent, to participate actively in the resolution of matters arising from the offence, through the help of a trained and impartial third party.”8 As a result, victims of hate crime have the opportunity to understand what happened, how their identity did or did not play a role, and share their experience in a safe and non-judgmental space. At the same time, the offender’s preconceived notions may be challenged –in some cases, behavioural or value change may occur.9 Emotional outcomes such as remorse and greater empathy of the offender may also occur.10

• 11 J. Sawatsky, Justpeace Ethics: A Guide to Restorative Justice and Peacebuilding, Cascade Books, Eug (...)
• 12 K. Clamp and J. Doak, “More than words: Restorative justice concepts in transitional justice settin (...)

16Restorative justice can be seen as a peacebuilding approach in and of itself. Indeed, in 2008, a direct link was made between these two fields; where conflict transformation and peacebuilding were compared to restorative justice.11 Without an opportunity for exploring identity - crimes and conflict cannot fully be resolved – particularly, not in the longer term. A connection has also been made between restorative justice and transitional justice,12 where especially the overlap of values around truth, accountability, reparation and dignity is emphasized. Restorative justice contributes to this case, to transitional justice processes by illustrating how meaningful dialogue amongst victims, offenders and communities can lead to more effective conflict resolution. At the same time, it has been argued that restorative justice processes must be applied correctly to work in post-conflict society, and a better approach may be to import values of restorative justice in post-conflict societies.

• 13 While the general layout may be compared to victim-offender mediation (preparation, phase of trust- (...)

18Though a less common form of restorative justice,13 peacemaking circles offer an approach that may be highly applicable to hate crime, even if not (yet) being used in these terms to their full potential. Restorative circles may be a one-time event, but often are a series of meetings, with the aim of getting to the underlying root causes of the conflict. They focus on the community issue over the interpersonal issue, where a crime against identity may be more fitting due to its macro-level implications (i.e., a crime against identity is a crime against a whole group). In general, peacemaking circles are limited in use when compared to other restorative measures, due to fewer programmes and less embedment within the criminal justice system (where referrals for restorative justice often come from).

• 14 B. F. D. Szegő, Handbook for facilitating peacemaking circles, Foresee Research Group, 2013.
• 15 Here we refer to the ceremonial framework as outlined by Fellegi and Szego (2013: 14), that recogni (...)

19Peacemaking circles provide for a response to the question regarding community14, which is particularly relevant in cases of identity-based crimes. This form of conflict resolution offers an inclusive and non-hierarchical means of creating a safe space to remove barriers between people— leading to mutual understanding and helping parties to see one another as human beings. Essential to hate-based crimes, peacemaking circles aim to focus on the commonalities between people. It should, however, be emphasized that the primary difference between peacemaking circles and more common forms of RJ such as mediation and conferencing rests on the involvement of the wider community and the ceremonial framework15 that emphasizes the role of the parties themselves in creating the values and rules of the circle.

• 16 Kay Pranis, Barry Stuart, and Mark Wedge, Peacemaking circles: From crime to community, St. Paul Mi (...)

21In terms of the question around the extent to which hate, or difference should be discussed, peacemaking circles have a lot to offer the resolution of identity-based conflicts. Individual identities may be challenged when the focus is placed on unity. Circles offer an opportunity for unity to occur in the sense that people may come together in a safe and respectful way, and do not perceive differences as something that separates individuals or groups.16 Indeed, where circles may dedicate time to understanding what connects people rather than differentiates them, they become a particularly effective means of discussing about hate and hate crime.

• 17 Ibid
• 18 Ibid

22The community focus is indeed central, but in a way that addresses the complexities of hate crime. As Pranis, Stuart and Wedge (2003)17 note, circles reinforce power of those in communities to connect positively, address deeper causes and seek transformation. Repairing relationships with both each other and oneself is crucial. Circles approach conflict in a wider sense, therefore may ask, “what wounds and circumstances – past and present – prevent us from having healthy relationships, both with ourselves and others?” (2003: 11).18 Circles additionally, can explore the solutions that may exist to aid healing from even past wounds, and not only the current crime. This change can furthermore be supported through the focus on shared values; by developing mutual understanding and emphasizing moral work to lead to change at the individual and community level.

• 19 B. F. D. Szegő, Handbook for facilitating peacemaking circles, op. cit.
• 20 K. Pranis, B. Stuart, and M. Wedge, Peacemaking circles: From crime to community, op. cit.

23As noted, peacemaking circles most strikingly differ from other forms of restorative justice in their involvement of community, both from the perspective of the person harmed and the wrongdoer. For the harmed individual, and in some cases the harmed community – as is the case in identity-based crimes – members of the community may give voice to the issue and increase community strength. Here peacemaking circles may look at the context where the conflict originated19 and include broader levels of harm (e.g., what impact does a hate crime towards an individual have on the larger LGBT community?). In collective accountability on behalf of the offender, collective dimensions such as social, cultural, racial and economic conditions in addition to polarization of different groups are recognized. Here the community takes collective responsibility, at least to some extent, for allowing the crime to take place— for example, by holding attitudes that may polarize people or create tensions within communities.20

• 21 The authors recognize that even within the larger discipline of peace studies, there are distinctio (...)

25Mediation or negotiation in peacebuilding and other procedures may take a wide variety of forms, though it is not within the scope of this article to go into further detail, not to discuss the difference between, for example, peacebuilding and conflict resolution.21 What is important to note, however, is the focus on root causes of behaviour and recognition that conflict is often a result of identity-based offences.

• 22 M. Walters, Hate crime and restorative justice: Exploring causes, repairing harm, op. cit.
• 23 O. Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution, Malden, Polity Press (...)
• 24 Ibid

26Hate crime can have significant effects on victims’ sense of self, triggering or stimulating feelings of vulnerability and internalized prejudice.22 As previously noted, the effect on a person’s sense of self can be considered as an integral part of the harm caused by the crime inflicted, beyond the evident impact on someone’s physical or mental wellbeing. Large-scale violent conflict tends to adopt different narratives around (communal) identities. Nevertheless, in all types of conflict, notions of identity present themselves as key components in mobilization, escalation and conflict resolution. Peacebuilding research has found that ‘the way the causes, courses, and endings of violent conflicts are examined, has strong implications for the lived experience of men and women in society’23 (2008: 368-369). Therefore, to ignore important elements of people’s identity, such as gender and sexuality, ‘as both constituting and being constituted by conflict in general, and conflict management in particular, is to valorize and leave unexamined the existing power structures’ (2008: 369).24 As with hate crime, the violence or harm that has taken place, as well as the response to said harm, can shape ideas and narratives around identity for all parties involved.

• 25 H. Kelman, “Conflict resolution and reconciliation: A social-psychological perspective on ending vi (...)
• 26 Ibid.
• 27 N. Aiken, “Learning to live together: Transitional justice and intergroup reconciliation in Norther (...)

27However, conflict reconciliation offers the opportunity to produce new meanings in the encounter between the ‘self’ and the ‘other’ that may facilitate more peaceful coexistence. Kelman differentiates between conflict resolution and conflict reconciliation by explaining that: ‘whereas conflict resolution refers to the process of achieving a mutually satisfactory and hence durable agreement between the two societies; reconciliation refers to the process whereby the societies learn to live together in the post-conflict environment’ (2010: 3).25 Restorative justice, depending on the capacity of the parties involved and the preferred outcome, could potentially address both resolution and reconciliation. Where resolution includes ‘the development of working trust— the transformation of the relationship toward a partnership based on reciprocity and mutual responsiveness; an agreement that addresses both parties’ basic needs (2010: 4)’,26 reconciliation also addresses conflicting ideas of (collective) identity that may keep in place violent discourse. However, reconciliation is often a long and sensitive process, which requires intensifying contact between communities, as Aiken (2010: 184-185)27 explains in relation to intergroup reconciliation in Northern Ireland:

• 28 D. Bloomfield, T., B., and L. Huyse, Reconciliation after violent conflict. A Handbook. Stockholm, (...)
• 29 Ibid.
• 30 H. Kelman, “Reconciliation as identity change: A social-psychological perspective,” In Herbert Kelm (...)

28Getting to the root of the identity conflict and recreating narratives about ‘self’ and the ‘other’ can, arguably, only be addressed once communities have gone through stages of non-violent co-existence, gradually building trust and acknowledging the humanity of others28 (2003: 19-20). While it’s important to consider that reconciliation is not a recipe to perfect peace, it can be possible to change perceptions of identities – either by recognizing new elements of commonality or by challenging components of one’s identity that are (perceived to be) in direct conflict with that of the other. For example, it may be possible for people to recognize that ‘victims and offenders share a common identity, as survivors and as human beings’29 (2003: 21). This concept is largely in line with restorative justice principles, in which the literature offers insight into both the importance for community and the potential for change when dealing with identity-based crimes. Indeed, reconciliation may bring about change in both parties’ identities by removing ‘the negation of the other as a central component of one’s own identity’ (2004: 119).30 Again, this requires at the very least, the acknowledgement of the identity of the ‘other’ as valid or legitimate, even without necessarily adopting this narrative themselves.

• 31 A. Stillwell, Roy Baumeister, and Regan Del Priore, (2008). “We're all victims here: Toward a psych (...)
• 32 S. Ellis, Truth and Reconciliation Commission of South Africa Report, Volumes 1-5, Pretoria, Govern (...)

29Reconciliation processes between communities affected by violent conflict may contribute to behavioural change on the side of the offender(s). The effectiveness of this process of reconciliation may depend on the motives, capacity and attitude of the offender. In cases of identity conflict, offenders may not (yet) be able to change belief systems or components of their identity that are constituted by the hate towards others. One such obstacle is what is referred to as the ‘magnitude gap’:31 a significant difference between victim and offender in the interpretation of the violence that has taken place (for example, regarding the importance of the harm or the moral evaluation). While this magnitude gap can, in some cases, be closed through reconciliation processes, it may also pose challenges for its successful implementation. In the case of South Africa, different features of this magnitude gap have been observed during the implementation of the South African Truth and Reconciliation Commission. For instance, moral evaluations may differ (with offenders viewing their actions as ‘less wrong’) or there may be discrepancies between victims and offenders regarding the question of motives and intentions (2000: 271–272).32 In hate crime we might encounter similar situations, where it is vital to assess to what extent such gaps exist between the interpretation of the harm and the potential for closing this gap.

• 33 E. Hutchinson and R. Bleiker, “Reconciliation,” In R. Macginty (Ed). Routledge Handbook of Peacebui (...)
• 34 P. Wallis, Understanding restorative justice: How empathy can close the gap created by crime, Chica (...)

30Reconciliation aims to address the emotional component of crime, which is particularly relevant to hate based crimes. For a post-conflict society to achieve lasting stability, it must address the underlying emotional challenges that may remain or have driven the conflict in the first place.33 A more impactful solution to address two primary emotions, namely fear and anger (also at the community level) is to explore how to “construct an alternative, less divisive sense of identity and community.” The solution includes not only understanding of the impact of the crime, but also an approach that promotes humanizing ways to reconcile what happened and promote empathy. Fostering humane connections is the only way to ensure that forgiveness can overcome feelings of anger or revenge. Similarly, whilst empathy is undoubtedly a focus within restorative justice discourse,34 reconciliation work would suggest that this is a key ingredient to dealing with identity-based crimes and changing behaviours and values.

• 35 See, Interpeace and Kofi Annan Foundation (2018). Challenging the Conventional: Making Post-Violenc (...)

32In peacebuilding, different strategies are employed to involve a wide range of relevant actors in the reconciliation processes – beyond only victim and offender. For example, in Mindanao, in the Philippines an inclusive and bottom-up approach to defining the transitional justice and reconciliation agenda was adopted by gathering the experiences and narratives of a wide range of actors from conflict-affected communities. This method aimed to prevent reconciliation activities from focusing solely on victim-offender dynamics that could ‘unintentionally reinforce historical gaps and perpetuate cycles of violence’ (2018: 31).35 As a report by Interpeace and the Kofi Annan Foundation on post-violence reconciliation (2018: 31) explains:

• 36 For example, see Alejandra Diaz Gude and Ivan Navarro Papic, (2018). “Restorative justice and legal (...)

34This discussion cannot be presented without considering it within the wider scope of legal culture. Indeed, we have referred to processes that are primarily found in substantially different contexts when compared to working with victims and offenders through restorative justice approaches at a domestic level in the European context. In the peacebuilding or post-conflict literature, particularly where a communitarian tradition may prevail, it becomes crucial to also consider the role of the community and other factors that may fall within the discipline of anthropology of law to emphasize a better understanding of what law and justice might require across cultures.36 In the case of hate crimes and restorative justice, this communitarian conception of justice becomes crucial, as it is (1) a community being targeted and (2) a community that should be involved in the decision-making processes around justice and future crime control. While the comparison to peacemaking circles and reconciliation literature is an example of how we can also look at the importance of identity in conflict resolution, the broader perspective found in legal culture and anthropology can offer critical insights to legal development and cross-cultural understandings of justice, though falls outside the scope of the current exploration.

• 37 Pete Wallis, Understanding restorative justice: How empathy can close the gap created by crime, op. (...)

41Another identified factor in the above review of peacemaking and reconciliation application, in restorative justice— is the importance of addressing emotion around identity division, such as anger and fear. It was noted that empathy plays a large role – for peacebuilding and restorative justice alike – but especially when igniting behaviour change in terms of biases and prejudices becomes especially important. This empathy goes hand-in-hand with minimizing the ‘other’ and becoming more other-centred, allowing for a mirroring process where a dynamic process develops, ‘in which each person is both expressing suffering responding to suffering in the other’ (2014:7).37