Restorative Justice between the Need to Bring to Justice Those Guilty of Committing International Crimes and Conventional Crimes and the Implementation of the National Reconciliation Process
Restorative Justice between the Need to Bring to Justice Those Guilty of Committing International Crimes and Conventional Crimes and the Implementation of the National Reconciliation Process

Author(s): Ionuț – Gabriel Dulcinatu
Subject(s): International Law, Human Rights and Humanitarian Law, Law and Transitional Justice, Sociology of Law
Published by: ADJURIS – International Academic Publisher
Keywords: victim; crime; international criminal responsibility; international justice; international criminal procedures; restorative justice; human rights;
Summary/Abstract: When a deed is committed, the civil society of which the perpetrator is a part, considers it reprehensible, considering the relation of the deed to that society's own value system. Since by the effect of committing such an act in society, another person has been injured in his physical being or in his property, who will have to bear the consequences of this injury? This is the essential issue of liability. The reprehensible social judgment of value will manifest itself in the form of a statement of public opinion in which the objectionable object is precisely the reprehensible. The conduct of the public - the subject of the respective opinion - which expresses itself reprehensibly will be one of rejection of the reprehensible, rejection manifested in various forms, with the times and places2 The progress made in the last century by public international law, in terms of the field of criminalization of criminal acts, unfortunately did not lead to great corresponding achievements, along the lines of the creation and promotion of international legal institutions that value the norms of law in force. In the absence of such criminal jurisdiction, the sanctioning of international crimes continues to be achievable, with some limited and conjunctural exceptions in a national framework, by the criminal courts of each state3 . By acceding to international treaties of international humanitarian law, states undertake to respect them in good faith. Moreover, international conventions only specify serious crimes, indicating them expressly (see: the Geneva Conventions of 1949 - art. 49 of Convention 1; art. 50 of Convention II; art. 105-108 and 129 of the III Convention and art. 146 of the IV Convention; Additional Protocol I of this convention, concluded in 1977 - art. 85 paragraph 1, as well as the Geneva Convention of 1954 for the protection of property cultural in case of armed conflict - art. 28; genocide - art. V of the 1948 Convention; terrorism - art. 1 of the 1937 Convention; drug trafficking - art. 36 of the Single Convention on Narcotic Drugs of 1961) and recommends that states establish the only punishments for these serious crimes, the courts competent to judge them, as well as the qualification of other acts contrary to international humanitarian law as actions or crimes and the manner of their criminal and disciplinary sanctions4 . So, are the victims of armed conflicts entitled to benefit from the reparation of the damage suffered, from the states? If so, under what conditions and through what mechanisms can victims benefit from these rights? Recent developments in international law have made answering this question increasingly difficult as different approaches have developed to determine the nature of the obligation to provide reparations to war victims. The emergence of international human rights law led to placing the individual in a bivalent position, namely as a rights holder, without being fully recognized as subjects. States have often proved to be neither the only nor the best guarantors of the rights of their citizens. However, international law recognizes the rights of individuals and has established mechanisms for their direct exercise, without mediation by the individual's state. However, these rights and mechanisms are governed by different legal frameworks of a universal and regional nature, the application of which also depends on how national law recognizes these rights, which makes it difficult to determine the secondary obligations arising from the breach of the obligations arising from human rights.

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