War, Inhumane Acts and International Restorative Justice

서지정보

· 발행기관 : 인하대학교 법학연구소
· 수록지 정보 : 법학연구 / 18권 / 2호 / 209 ~ 244페이지
· 저자명 : Kane Timothy Michael, 김보혁

초록

War often brings with it the most brutal and inhumane acts, at times on incredibly vast scales, often committed by governments of states. After the fighting stops, somehow justice must be served and scars healed. And somehow we have to find a way to reduce the likelihood of inhumane crimes from ever happening again.
World War II ended in 1945 but nearly 7 decades later much is unhealed, for many justice has yet to be served and much resentment lingers.
In international law there are multiple provisions for dealing with international wrongful acts committed by states and the after affects of war. UN ULC adopted "Draft Articles on the Responsibility of States for Internationally Wrongful Acts" in 2001. The article 37 states that the state responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. The satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Article 37 has its limit to heal emotive side of trust from the victim state because this process is not obligation sofaras the state wrongful act can be made by restitution or compensation.
In the case of the after effects of World War II we have two almost parallel cases that had nearly opposite outcomes in regard to the process of restoration of trust, peace and healing in the international community: Germany and Japan. Germany has largely managed to restore its place in the international community while making amends with its victims. Japan has, to a considerable degree, fallen short of restoring trust with its neighbors and many victims still remained aggrieved.
The question remains, is there a better way to restore international trust for countries which have committed inhumane actions by their government during a time of war and what would such a system look like? Tn the mean while, there is only one example of a large modern industrial democracy with a significantly declining domestic crime rate. That example is Japan. Japan does not achieve this through direct reliance upon its formal criminal law system. Instead Japan has achieved this through utilization of a quasi-formal system of restorative justice.
In this paper, we analyze Japan’s quasi-formal system of restorative justice. What we find is that Germany followed a process that maps closely to Japan’s domestic system of restorative justice, while, ironically, Japan did not.
We then take the process we extracted from analysis of Japan’s system of restorative justice and craft a proposed framework for a quasi-formal international restorative justice system. Perhaps this way we can arrive at our goals of restoration and reduction in inhumane act by state internationally.

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