To heal Covid-19 wounds we need a Truth and Reconciliation Commission

As a family, we were very sad for our loss; we were also confused, and affected by the odd situation. But it was nothing compared to what was about to happen to thousands of our fellow citisens, among whom were my beloved restorative justice mediators and facilitators in Bergamo, a place described as the Covid-19 martyr city. 

Silence associated with the lack of living activities and the absence of people in the streets, and the penetrating, continuous sound of sirens, audible from far distances because of the unnatural silence, are the two most physical memories I associate with this nightmare.

On the one hand, Lombardy residents progressively lost all their fundamental freedoms until a complete lockdown transformed the whole country into a confinement area, and each home into a prison, for every person in the Italian territory. The National Government passed anti-Covid-19 regulations that were in many ways constitutionally problematic, extremely obscure, and sometimes even contradictory, but the provisions were very clear in turning any human activity into a potential or actual criminal and/or antisocial punishable behaviour.

Local authorities in Lombardy were given the power to be stricter, and they used it. These regulations came together with increased police surveillance and deterrence and punitive discourse in official communication with citizens. The more the health statistics were getting worse, the more residents were intimidated, made to feel guilty, and criminalised, or treated like naughty children. The expression ‘state of exception’ as critically interpreted by Giorgio Agamben (2005) (see also Quodlibet.it) has been often used to refer to these unprecedented circumstances and, indeed, Agamben is among the most lucid, and worried, critics of the whole management of the situation.

What Yuval Noah Harari described in the Financial Times on March 20, 2020 well depicts our situation at the time; he refers to the counterproductive effects of the ‘soap police,’ the ‘monitoring and harsh punishments’ in the hope of making ‘people comply with beneficial guidelines.’ It is not by chance that the photos chosen to complement Harari’s article show a series of deserted locations in Italy. To achieve compliance and co-operation — Harari argues — you need trust. People need to trust science, to trust public authorities and to trust the media. But it was — and still is — largely difficult to trust conflicting scientists and contradictory authorities who continuously refute, disprove and debate among themselves, underestimating the coronavirus on one day (‘it is just a common flu’) and locking down millions of people on the other.

On the other hand, policed residents in Lombardy started experiencing the effects of the pandemic in their own lives and flesh, resulting in deaths and severe medical conditions for thousands of people. While the pandemic was breaking out, our local health care system was breaking down.

"they died alone, in a total, unimaginable, incomprehensible and unique separation from their loved ones"

Confined and locked in their homes, in hospitals or retirement homes were the most vulnerable: those affected by pneumonia and/or other chronic diseases (whose treatment has frequently been interrupted during the crisis) and older people. These persons just died — dozens, then many hundreds every day; they died alone, in a total, unimaginable, incomprehensible and unique separation from their loved ones (and their loved ones from them), despite the efforts of the medical staff to do their best and provide some humanity and warmth to the dying. In most cases, deaths were reported to families over the phone, after days or weeks with no news at all.

Those who died from March to mid-May did not have funerals, nor — in several cases — proper burial, on some occasions the coffins being brought to any available crematorium by the army or the police. The whole world has witnessed the images of coffins being brought to crematoriums by the army coming from Bergamo. I have heard accounts of a town near Bergamo where the parson died on one day and the mayor the next; I have heard about people who lost more than one family member in the same day, or small children having both parents in hospitals, and being left at home alone in quarantine with only home visiting by (caring) social workers.

Children’s and adolescents’ needs, whose ‘best interests … shall be a primary consideration’ according to Article 3 of the Convention on the Rights of the Child (United Nations, 1989), have been practically forgotten despite the Italian Independent Authority for Children and Adolescents advocating the consideration for their special needs and adequate interventions accordingly. Riots have taken place in prison; measures to protect inmates have given rise to an unimaginable — and not noble indeed — debate having consequences that worry those who care for constitutional rights and principles.

On March 27, 2020, the New York Times dedicated an impressive interactive reportage (by Jason Horowitz, photos by Fabio Bucciarelli) to ‘the bleak heart of the world’s deadliest coronavirus outbreak’; please, take the time to bear witness to victims and survivors, their family members and communities by reading their stories and their many names, as you would when visiting a war memorial site.

What thousands of individuals, families and communities went through, especially in the areas of Bergamo, Lodi, Cremona, Brescia and Milan, is both unbelievable — as oftentimes is unspeakable sorrow — and unacceptable — as always is what should not have happened. Due to its large-scale dimension, this tragedy brings about needs that are very similar to those experienced in post-conflict settings and the aftermath of collective victimisation. I am not assuming an identity in situations, but it is striking how the set of needs and corresponding rights described, among others, in the many UN documents on transitional justice match those emerging from the ‘bleak heart of the world’s deadliest coronavirus outbreak’ (New York Times).

These aspects, in my view, shape the most urgent features of a comprehensive, non-simplistic, notion of justice also in response to the Covid-19 crisis.

I am referring in particular to the ‘right to know’ — which embraces the ‘right to truth,’ (United Nations Economic and Social Council, 2006)  and the ‘duty to preserve the memory’ and ‘guarantees of non-recurrence’ (United Nations Economic and Social Council, 2005)  together with other well-known typical scopes of transitional justice that seem so sound in the Covid-19 Lombardy case too, such as (among many) to:

• promote healing and reconciliation, establish independent oversight of the … system and restore confidence in the institutions of the State … (United Nations, 2017, p. 3).

The aforementioned tasks, though, are recommended by the UN within a framework of combatting impunity (United Nations Economic and Social Council, 2005), which also demands ensuring accountability. The term ‘impunity’ is immediately (and partly wrongly) associated with the idea of punitiveness which, in my view, is an ineffective short cut to responding to the complex and articulated needs arising from large-scale tragedies. Covid-19 survivors and affected communities in search for responses are resorting to the only tool available (unless we provide others, and better ones): criminal justice. Hundreds among those thousands affected in Lombardy are now filing lawsuits and reporting what for them is a crime (the avoidable death of their loved ones); criminal investigations are being carried out. The people having been locked down, home-imprisoned, put under surveillance, criminalised and punished for jogging or walking in the first place are now firing back and standing up out of despair and rage at the enormous amount of deadly pain, sorrow and solitude that has hit them and their loved ones.

The quest for truth and justice is giving birth to Covid-19 victims’ associations, such as Bergamo’s Committee Noi denunceremo (We will sue. Truth and Justice for Covid-19 victims), or the ‘Comitato Giustizia e Verità per le Vittime del Trivulzio’ in Milan, claiming truth and justice for the too many older people who died alone in Milan’s most ancient and famous nursing home. Bergamo’s Committee organised a collective ‘Crime Reporting Day’ on June 10, gathering dozens of citizens at the Prosecutor’s Office to demand ‘justice and truth’ in the name of ‘peace for their dead loved ones who did not have a burial’ and to claim that ‘those who made mistakes will have to answer our questions and take responsibility.’

This immense need and expectation of justice — I am afraid — will very likely be frustrated. As usual, there is little to expect from ‘classic’ criminal justice (and its traditional punitiveness) in terms of disclosure and truth. Punitiveness entails defensiveness, which in turn in not an ally of transparency and truth. Furthermore, the whole pandemic is such an unprecedented situation that it will be hard — and probably impossible — for criminal proceedings to meet the necessary, fundamental, legal standards to assess evidence, proof, and criminal liability beyond any reasonable doubt (apart from occasional gross, self-evident violations of basic safety precautions that might have taken place). In addition, criminal justice is not suited to addressing complex, collective situations, and it is largely incapable of granting their non-recurrence, because it is not (meant to be) forward-looking and problem-solving oriented (Forti, 2020).

"what we need is the establishment by law of a para-judicial commission within a comprehensive, non-punitive, participatory, democratic approach"

The few reflections sketched above culminate in me advocating for an official Truth and Reconciliation Commission in response to Italy’s Covid-19 tragedy to serve ‘just’ justice, support fact-finding, foster collective healing, promote survivors’ redress, ensure victims’ memory, avoid further pain and sorrow, and prevent recurrence. Borrowing from the unique, and still inspiring, South African experience, what we need is the establishment by law of a para-judicial commission within a comprehensive, non-punitive, participatory, democratic approach to address the severe and very sad situation that affected (and is still affecting) the whole Country, and particularly the aforementioned areas. Besides other measures (e.g. memorialisation), a Covid-19 Truth and Reconciliation Commission should involve restorative processes and truth-telling mechanisms, fostered by proper legal shields to criminal liability, conviction and punishments, together with the hearing of victims/survivors and communities in order to learn from their experiences, acknowledge their painful stories and provide them with what Agnese Moro calls ‘social tenderness.’

Just as in South Africa, ‘institutional hearings’ would also be necessary, and actually of the utmost importance to prevent recurrence, stimulate organisational foresight and endorse proper preventive strategies. As mentioned in the South African TRC Final Report: Summary and Guide to Contents, institutional hearings seek

• to explore the broader institutional and social environment … to provide opportunities for self-examination by the various sectors, as well as discussion of their possible role in the future.

The many and scattered initiatives aiming at giving the floor to individual and collective narratives of the common tragedy are noble and useful, but may be insufficient fully to address an articulated need that requires a comprehensive concept of justice.

Claudia Mazzucato is an Associate Professor of Criminal Law at the Università Cattolica del Sacro Cuore of Milan and a Coordinator of ‘Federico Stella’ Graduate School of Criminal Justice. 
claudia.mazzucato@unicatt.it

References 

Agamben, G. (2005). State of exception: translated by Kevin Attell. London: University of Chicago Press.

Catino, M. (2013). Organizational myopia: problems of rationality and foresight in organizations. Cambridge: Cambridge University Press.

Forti, G. (ed.) (2020). Le regole e la vita: del buonuso di una crisi, tra letteratura e diritto. Milan: Vita e pensiero.

Forti, G., Mazzucato, C., Visconti, A. and Giavazzi, S. (eds.) (2018). Victims and corporations: legal challenges and empirical findings. Milan: Wolters Kluwer.

Petrosino, S. (2020). Lo scandalo dell’imprevedibile: pensare l’epidemia. Novara: Interlinea.

United Nations (1989). Convention on the rights of the child. New York: United Nations.

United Nations (2017). Resolution adopted by the Human Rights Council on 28 September 2017 36/7. Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. New York: United Nations.

United Nations Economic and Social Council (2005). Promotion and protection of human rights: report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher. New York: United Nations.

United Nations Economic and Social Council (2006). Promotion and protection of human rights: study on the right to the truth. New York: United Nations.