Prologue
In 1998 Japan’s NGO JAICA has been organized one of interesting event. They have invited
veterans of Khalkhin Gol war in 1939. What was happened in 1939 Japanese perspective Is known as
“Nomunkhan Incident”
Right before that incident Japan shifted its military interests to Soviet territory that bordered those
regions after the Japanese occupation of Manchuria in 1931. In Primorye in 1938, the first significant
Soviet-Japanese boundary incident occurred, the Battle of Lake Khasan. In 1939, Manchuria was a
Japanese puppet state established as Manchukuo, and Mongolia, founded as the Mongolian People’s
Republic, was a communist state aligned with the Soviet Union.
The Japanese believed that the Khalkhyn Gol (English “Khalkha River”) which flows into Lake
Buir was the boundary between Manjgo and Mongolia. The Mongolians and their Soviet supporters, on the
other side, held that the boundary stretched some 16 kilometres east of the river, just east of Nomonhan
village. [1] (Sh n.d.)Manjgo’s main occupying army was Japan’s Kwantung Army, which in 1939 was
made up of some of the best Japanese units. Manchukuo’s main occupying army was Japan’s Kwantung
Army, which in 1939 was made up of some of the best Japanese units. The 23rd was the Kwantung Army’s
newest and least experienced unit. The 23rd Division was also fitted with outdated equipment. Experts in
the Japanese army classified the 23rd Division’s fighting capacity as “below average,” comparable to a
Chinese occupation duty garrison division.
The Soviet forces consisted of the 57th Special Corps deployed from the Military District of
Trans-Baikal. Mongolian and Soviet are responsible for defending the Siberia-Manchuria frontier. The
Mongolian forces consisted mainly of cavalry brigades and light artillery units, proving to be powerful and
flexible, but lacking sufficient numbers of weapons and manpower.
The Japanese Cabinet issued directives to the Kwantung Army in 1939 to secure and improve the
frontier of Manchukuo with Mongolia and the Soviet Union. In contrast, the Kwantung Army, long based
in Manchuria far from the Japanese Home Islands, had become largely autonomous and appeared to
operate without the Japanese government’s permission or even against its guidance.
The battle started on May 11, 1939. In search of grazing for their horses, a Mongolian cavalry unit
of about 70–90 men had entered the disputed area. Manjgo cavalry defeated the Mongolians on that day
and drove them home across the Khalkhin Gol valley. The Mongolian army arrived in greater numbers on
May 13, and they were unable to dislodge the Manjgos. On May 14, Lt. Col. Yaozo Azuma led the 23rd
Infantry Division’s reconnaissance regiment, supported by the same division’s 64th Infantry Regiment,
under Colonel Takemitsu Yamagata, into the territory and withdrew the Mongolians. [2] (D 2007)
However, Soviet and Mongolian troops returned to the disputed region, and Azuma’s force moved
again to expel them, but on May 28, the Soviet-Mongolian forces surrounded and destroyed Azuma’s
force. That’s how at started and final counter attack where on 20 August 1939, Soviet artillery and 557
aircraft attacked Japanese positions, the first fighter-bomber offensive in Soviet Air Force history.
Approximately 50,000 Soviet and Mongolian soldiers of the 57th Special Corps defended the east bank of
the Khalkhin gol. A counterattack in Japan to relieve the 23rd Division collapsed on August 26. The 23rd
Division tried to break out of the encirclement on August 27, but struggled as well. They were again hit
with artillery and air attacks when the surrounding forces refused to surrender.
On 15 September, the Soviet Union and Japan committed to a cease-fire that took effect at 1:10
p.m. the following day.
Good approach to deferent kind of restorative justice
Event where held anniversary of after 59 year of bloody armed conflict. Where invited not only
Mongolian war veterans there where invited Japanese veterans as well group of people. My Grandfather
Sharav .B veteran of the two-armed conflict he was around 70 was invited that event. Time past he got
problem with his right leg longest I remember he had hard time get walk. I had honorable duty to escort
him to the event, that’s why I had a chance to witnessed that event.
1998 Mongolia went through problematic period time where changed nothing was like used to be.
During Communist regime my grandfather where one of the respected persons but …… he where lost all of
his benefit, allowance certain time from government. Well we went through beautiful banquet room all
guests where arrived speech of Japanese Ambassador after Mongolian official. After the light meal, guests where invited next room with exhibition hall of war pictures. That was biggest mistake whoever where
planned this event most of them where Japanese solders some of the picture where war prisoner of
Russian-Mongolian solders. Atmosphere where suddenly changed actually before we get to this stage
everything was fine whole group where start separated by ethnically.
I think that now, after what did they have seen, has been awakened something inside of every
elder person who were gathered there. My Grandfather asked me really kindly wanted go home
immediately, soon I was heard all of the Mongolian delegation has left, not finished the whole agenda yet.
If looked from current elevation that was good approach to get Restorative Justice between counterparties
of war.
Some elders say “Time” is best healer. I’m not sure no one knows is certain. [3] (Tumur.N 2019)
ICC and Restorative Justice
Judge Sang-Hyun Song, then President of the International Criminal Court (ICC), spoke at the
World Parliamentary Conference on Human Rights in Rome, Italy, in December 2012. Judge Sang-Hyun
Song said in his remarks that together with the deterrence of future crimes, the “Rome Statute and the ICC
offer retributive and restorative punishment” 4. 11, December 2012) Restorative justice, as
previously held by the ICC, is exercised through victim involvement in legal proceedings and reparations,
while retributive justice is evident through its punishment of mass atrocity perpetrators. Together, these
modes of justice are considered important for ‘ the needs of the survivors and populations impacted and for
long-term sustainability in post-conflict societies ‘ [5] (Release 21, September. 2015)
The idea that the activities of the ICC offer restorative justice for survivors has also appeared in
statements made by the current president, Judge Silvia Fernandez de Gurmendo, as well as the views of
prosecutors, the Registrar, and the Chambers. The earlier version of the official website of the ICC claimed
that survivor participation and reparations reflected a’ bridge between retributive and restorative justice,’
and this claim has appeared in the daily newsletter of the ICC. Commentators and state representatives
perceived the ICC as having a’ restorative mission’ or seeking restorative justice.
This remains unclear, though, whether the activities of the ICC are organised with the intention of
promoting restorative justice, or whether discussion of this path to justice is used by its professional staff
as a general definition of the Court’s ‘ victim-friendly ‘ procedures.
The partnership between the ICC and restorative justice has become even more vague in recent
years; the link to restorative justice has been omitted from the “victims” page of the website’s current
version, and there is now no discussion of survivor involvement or reparations being considered to include
this form of justice.
Active involvement of victims is a key aspect of typical restorative justice processes (K.S. Van
Wormer & L. Walker 2013)[6] It is widely claimed that such involvement overcomes the normal
exemption of survivors from retributive procedures (other than as witnesses) in order to place offenders as ‘
active agents ‘ of their prosecutions. Overview of the role of victims in restorative justice projects at
national or community level and argue that this category of people typically plays a central role in the three
key “pillars” of restorative justice: “encounter,” “amendments” and “reintegration”. [7] (Van Ness 2006) It
then includes the participation of survivors as stakeholders in the ICC and analyses the nature of such
presence. It shows that there are not the same participatory possibilities for victim participants as is typical
for restorative justice processes.
Based on the description of the performers and legal field practises by Pierre Bourdieu, the report
addresses as primary respondents the possible reasons for the absence of survivors. This claims that the
obvious subversion of international criminal justice’s conventional retributive roles by survivor
intervention does not work in practise. Instead, the ICC continues the retributive emphasis on legitimate
legal entities and only listens to their opinions during the hearings.
To explore victim positioning in restorative justice, this article uses a definition of restorative
justice as “a process whereby parties involved in a particular offence collectively resolve how to deal with
the aftermath of the offence and its implications for the future” [8] (Marshall 1999)
Sine qua non elements of the intervention: a face-to-face meeting between those liable for the
damage and those affected by the crime, in the company of those who care for them; a comprehensive and
often detailed deliberation on what occurred and what the consequences were; a consensus on what should
be accomplished to facilitate both physical and psychological recovery.[9] (Strang 2012).
Participation
When we adopt a “process-oriented” concept of restorative justice, it is evident that restorative
justice involves multiple individuals and prioritises a different form of their engagement to that of
retributive justice. Restorative justice operates on the assumption that it is “those individuals who are
directly involved in the conflict who own the problem and should therefore be settled by them”. [10]
(Jacobsen 2012) As Gröning and Jacobsen point out, it is often the case that restorative justice is “linked to
a more “public” perspective, where the victim’s abuse affects the (local) culture itself”. Trained mediators,
police or other experts support restorative justice procedures, by maintaining victims ‘ security and privacy,
as well as the proper presence of all parties involved at the meeting.
Victims and offenders are typically entitled to what can be termed ‘ direct involvement ‘ in crime
or dispute resolution. Restorative justice does not include a ‘ duel ‘ between plaintiff and defence attorneys.
The criminal issue is not passed to these people. In fact, in such proceedings, lawyers are rarely present.
Rather it is recognised that perpetrators and suspects (and other parties listed above) ‘ have their own
objectives to seek ‘ which may not be best represented by the police, or by lawyers. [11] Why then are the
perpetrators interested in the process of restorative justice? If we believe following sections according to
the framework of three foundations of restorative Justice
• Encounter
• Amends
• Reintegration
The International Criminal Court and the role of victims
Does the ICC align with and prioritise the typical “pillars” of restorative justice? Much of the
discourse of the ICC about the ground-breaking legal structure focuses on its victim engagement and
reparation mechanisms. It is “the first time in the history of international criminal justice [that] victims
have the opportunity to share their views and concerns in the proceedings, represented by an attorney,” as
the ICC states. [12] (ICC.com 2016) This form of victim inclusion is framed as a ‘ right ‘ developed by the
Court to allow ‘ opinions to be expressed independently of the prosecution or the defence ‘ When
mentioned above, restorative justice has been articulated by the ICC and its members as one of the
products of its operation.
Article 68(3) of the Rome Statute calls for the involvement of witnesses in the ICC. This states
that “ [w] here the personal interests of the victims are affected, the Court shall permit their views and
concerns to be presented and considered at stages of the proceedings determined to be appropriate by the
Court”.[13] (The Prosecutor v. Jean-Pierre Bemba Gombo. 2016) In the latest decision in The Prosecutor
v. Jean-Pierre Bemba Gombo (‘ Bemba ‘), victims are permitted to
participate in hearings and status conferences, make opening and closing
statements, file written submissions, submit evidence, question witnesses who
are subject to a discreet written request decided in advance by the Chamber, and
have access to confidential records.
Previous decisions also held that the Trial Chamber “may propio motu the plaintiffs to testify in
closed and ex parte trials, or on invitation by any of the parties or participants”. Victims may also be active
in court hearings, most often by their legal representatives.
Mirroring the ideals of restorative justice, the ICC discusses the prospect of survivors engaging in hearings
with their families, and allows offenders the ability to ‘ take an active part in the proceedings ‘ It
determines that such participation ‘ can be an empowering experience for victims who otherwise would be
left as passive observers in the proceedings ‘ [14] (Headquarters 2016) As a means of enhancing the trial
process, the ICC held that victim involvement ‘ will help the judges get a clear picture of what happened to
them or how they suffered, which they may decide to take into account at certain stages of the proceedings
‘ Therefore, it has been argued that the involvement of victims can help to establish the truth and ‘ offer a
human perspective on the events described throughout the process ‘ However, if the ICC’s rhetoric focuses
on the inclusion of victims as participants, its practise is often used as a mode of exclusion. This exclusion
includes the persons and the terms of their participation that are accepted as participants in the victim and
legal representatives. In their analysis of the ICC’s representational practises, Kendall and Nouwen
outlined how their processes restrict the people who may be accepted as victims in the course of the
proceedings. First of all, victims must have suffered as a result of a crime numbered in the Rome Statute,
not as a result of “broader” poverty, natural disasters or the like. A second narrowing is the selection of
situations in which the prosecutor’s office opens investigations and their temporal, geographical and
personal parameters. Even survivors of particular, numbered charges will participate as witnesses once a
lawsuit has been brought [15] (Kendall 2013) If the judges do not confirm the charges then the victims
may lose their status as participants. Of example, as Kendall and Nouwen point out, victim intervention
often includes the prosecution, incarceration and conviction of the defendant, a condition that has provided
the Court with an ongoing problem.
Other considerations may be used to prevent offenders from participating as witnesses beyond the limits of
the legal process. Lack of awareness of the procedures of the ICC is a central reason why survivors do not
seek to take part in prosecutions. In addition, as Garbett argued, the Court appears to assume that victims
have specific ‘ resources ‘ needed to access their participation rights. However, not all victims of crime can
hold such personal, economic and cultural / social resources.
First of all, victims may not have the emotional or physical capacity to access and negotiate legal
proceedings, especially since they have suffered harm from the crime under appeal. Second, access to
material resources such as the Internet to complete application forms or documents to prove their identity
may hinder victims from taking part. Third, the notion of an ‘ active agent ‘ that underpins the victim
participation framework of the ICC may not map people’s concepts in various communities and societies.
Cultural norms and practises can-not conceive of all people, especially women, as autonomous holders of
rights capable of engaging with the law. [16] (Garbett 2016) Recourse to the law will contradict existing
social norms substantially and ultimately eliminate the chance of involvement.
Let’s get back to the three ideals of restorative justice by Van Ness and Heetderks Strong can
further illustrate the disadvantages to victim participation. This indicates that the ICC does not seem to
follow the traditional restorative justice procedures mentioned above.
Using the conception of the three ‘ pillars ‘ of restorative justice by Van Ness and Heetderks
Strong, ICC’s adherence to the practise of restorative justice.
Integration of survivors through restorative justice processes through ‘ encounter, ‘ ‘ amendments ‘
and ‘ reintegration. ‘ Comparative analysis of programmes for restorative justice deemed to include ‘ best
practise ‘ and those of the ICC found that perpetrators do not experience the same form of direct
participation as those in regional or community projects. Alternatively, survivors were represented as
instructed by the Chambers by their legal representatives.
While aligning with restorative justice procedures, the ICC’s legal proceedings present two main
challenges:
• The members of the plaintiff are not behaving as autonomous investigators.
Actually, as one ICC judge states, ‘ the assumption is that attorneys, lawyers
working for persons or for institutions will be those who join in the trials. ‘
Victims are represented by their legal representatives, i.e. lawyers with the
necessary qualifications and skills to enter the ICC’s legal field. In this way, as
an arena in which only qualified professionals can participate, the ICC retains
the traditional criminal law model. Legal representatives, though, do not include
“parties” to the court in the same manner as the prosecutor and defence. Instead,
the system of legal professionals decides that they have exposure to the rules of
the law in part and not in total.
• While restorative justice and the ICC both emphasise (at least in rhetoric)
involvement as fundamental to the mechanisms of justice, there is a significant
difference in the way in which such engagement takes place. The Trial Chamber
in the Bemba case has indicated that to guarantee their ‘ important involvement ‘
it is necessary to monitor the application process of survivors seeking to apply.
Some rulings say the victims have the ability to be personally active in the
proceedings. Furthermore, with very few cases, victims in the case of a personal
appearance before the Chambers do not engage actively in the trials of the ICC.
Instead, the ICC’s idea of ‘ direct involvement ‘ is actually a form of indirect
involvement. This takes place by counsel and in compliance with the Chambers ‘
decisions. Victims rarely appear in the courtroom in person, and given the large
number of victims assigned to legal representatives, their individual views and
concerns may not have been expressed to the chambers.