국제테러리즘의 일반적 규제 필요성에 관한 연구: 국제형사재판소규정을 중심으로

박효진 동국대학교 일반대학원 2022 국내석사

In the 18th century, the 'Club des Jacobins' in France ruthlessly used violence against the royalists in the course of their rule, causing fear among citizens. It was named "Terrorism Politics" and the concept of terrorism originated from this Jacobins way of governing. Terrorism, which had limited victims to those with different political interests, began to show an international character in the wake of the assassination of the Austrian crown prince and his wife, which became the starting point of World War I. The international community tried to regulate terrorism, but those trials were failed, because the international community couldn't to reach to a general consensus on the definition of terrorism. As a result, the general definition of terrorism is currently absent in the international community, and the international community regulates it simply by regulating individual acts of terrorism. The biggest reason why the international community has failed to define terrorism is that there is a conflict of opinion looking at terrorism. An example is the shooting of Ito Hirobumi by Ahn Jung-geun. As can be seen from the fact that Ahn Jung-geun's actions are regarded as heroic acts in Korea, while Japan simply considers them as acts of terrorism, it is difficult to reach a general agreement because terrorism's motivations are often politically motivated. Another factor that makes it difficult to derive the general definition of terrorism is that countries use it as an informal means. These terrorist acts, which are mainly carried out by each country, make countries passive in deriving justice for terrorism. The regulation of terrorism should be done through a general regulation method because the current regulation method has several problems. First of all, there is the possibility of a new type of terrorism. Currently, terrorist agreements regulate aircraft terrorism, the provision of terrorist funds, terrorism against international important people, and terrorism against ships, which do not adequately regulate new forms of terrorism. Considering the terrorist acts by drones, which are currently widely used for military purposes. If terrorist acts occur through them in the absence of international legal status on drones, the current regulatory method cannot properly punish them. In addition, this is because politics exists in the process of punishing terrorists. At the time of the 9·11 attacks in 2001, the United States started a war with Afghanistan on the basis of its right to self-defense, despite its membership in various anti-terrorism conventions. Similarities can be found in the Lockerbie case, which was an aircraft explosion, and the Security Council adopted a resolution on the deaths of British and Americans in the explosion of a fan-memorizing machine in flight at the time. The problem is that Britain and the United States, which were interested countries, participated in the vote in the process of adopting the resolution. General regulation of terrorism can solve these problems, and such regulation should be made through the International Criminal Court. First of all, the International Criminal Court is an international organization that can hold individuals international criminal responsibility and deals with crimes against humanity, genocides, war crimes, and aggression crimes as jurisdictional crimes Terrorism should also be included in jurisdiction of the International Criminal Court, first of all, because in the process of establishing the International Criminal Court, there was an attempt to include terrorism as a jurisdictional crime. Although it failed to derive a definition of terrorism and was eventually excluded, it is judged that the international consensus on the regulation of terrorism has reached a sufficient level. In addition, the International Criminal Court specifies judges of the Convention of Rome, the Security Council, and the International Criminal Court as those who may be prosecuted in Roman regulations. This has the effect of preventing the legal vacuum of the current regulatory method, which imposes the responsibility of punishing terrorist criminals only on countries. 본 연구의 목적은 국제형사재판소규정을 통한 국제테러리즘의 일반적 규제 필요성을 논하기 위해서이다. 이를 위해서 우선 테러리즘의 정의와 규제에 대해서 살펴보았으며, 현재 테러리즘의 방지와 처벌이 어떠한 방식으로 이루어지고 있는지를 검토해 보았다. 또한 로커비 사건과 9·11테러를 예시로 하여 현재의 테러리즘 규제 방식이 가지는 한계를 도출하였다. 제2장에서는 테러리즘을 개관하며 테러리즘의 개념을 살펴보고, 18세기, 프랑스혁명 당시 테러라는 개념이 발생한 이후부터 현재까지 테러리즘의 변화 과정을 살펴보고자 한다. 또한 테러리즘의 정의 설정을 위한 국제적 시도들과 그러한 과정에서 어떠한 어려움들이 있었는지 살펴보고자 한다. 특히 테러리즘의 정의 설정을 위한 국제사회의 첫 번째 시도가 있었던 국제연맹시기의 논의들을 중점적으로 살펴보고자 한다. 제3장에서는 국제테러리즘 방지 및 테러리스트의 처벌에 관한 현재규제 방식과 한계에 대하여 검토해보고자 한다. 우선 국제테러리즘의 규제는 크게 개별 테러행위들에 대한 조약을 통해 이루어진다. 현재 13개의 조약들이 국제테러리즘의 방지를 위한 것으로 인정받고 있는데, 해당조약들을 분석하며 테러리즘의 방지와 관련한 일반 원칙들을 살펴보고자 한다. 또한 현재 방식이 가지는 한계로서 테러리즘 방지 조약들에서 발견되는 법적 공백과 테러리스트에 대한 처벌에 있어서 관련 테러리즘 협약을 통해서가 아닌 이를 우회하는 것에 대해 논해보고자 한다. 전자는 로커비(Lockerbie) 사건을 중심으로, 후자는 9·11테러를 중심으로 살펴보고자 한다. 제4장에서는 국제형사재판소 설립을 위한 1998년 로마회의와 2010년 재검토회의를 검토하고, 국제형사재판소규정을 살펴보며 국제형사재판소의 성격과 물적 관할권인 핵심국제범죄(제노사이드, 인도에 반한 죄, 전쟁범죄, 침략범죄)의 구조에 대해 논하고자 한다, 또한 9·11테러를 국제형사재판소에서 처벌할 수 있는지에 대해 분석해보며, 테러리즘의 효과적인 방지 및 처벌과 현재의 규제 방식의 한계를 보완하기 위하여 국제형사재판소에서 테러리즘을 관할 범죄로 포함시키는 것에 대해 논해보고자 한다. 이는 국제테러리즘에 대한 현재의 개별적 규제방식이 아닌 국제형사재판소를 통한 일반적 규제방식에 대한 연구로써 ‘인도 아니면 소추’ 의무와 국제범죄에 대한 보편적 관할권, 그리고 국제형사재판소규정의 검토를 통해 이루어진다. 제5장에서는 각 장에 대한 정리와 함께 테러리즘의 일반적 규제의 필요성에 대한 의견을 정리하며 본 연구를 마무리하고자 한다.

로마규정의 국내적 수용과 이행입법

송영진 서울대학교 대학원 2010 국내석사

The international criminal court and Nigeria : implementing the complementarity principle of the Rome Statute

Adigun, Muyiwa Routledge 2018 국내석사

(The) definition and jurisdiction of the crime of aggression and the International Criminal Court

백범석 Graduate School of International Studies, Yonsei U 2006 국내석사

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court that was held in Rome to establish the International Criminal Court in 1998 finally adopted the Rome Statute with the participation of 160 countries. The Rome Statute of the ICC entered into force on 1 July 2002 and has been ratified by 100 States. What was considered not so long ago merely a dream of a few people has become a reality after the strenuous efforts of the UN over 50 years. However, one central issue still remains unresolved in the Rome Status. It is the crime of aggression. Countries that participated in the Rome Conference agreed to that compromise just in order to secure the conclusion of the Statute after they had reached a deadlock over the crime of aggression. Adoption of the Rome statute without containing an applicable provision on the crime of aggression, once expressed as the “Supreme International Crime,” was a main defect in the Statute. Without the punishment of the crime of aggression, the ICC would not really have the ultimate, long-awaited international criminal jurisdiction.The definition and jurisdiction of the crime of aggression has always been an extremely difficult issue to settle. The history of the search for an appropriate and effective definition and jurisdiction of the crime of aggression will be reviewed in this paper; it is not a purely legal issue, but it is intertwined with political elements. The research objective of this thesis is to clarify the terms of the ongoing debate over the crime of aggression, and to facilitate a better understanding about the crime of aggression, in an ad hoc working group open to all member states of the U.N. It is important to confirm the current controversial issues of the crime of aggression and present a desirable definition and jurisdiction of it. A credible, carefully discussed, precise definition and jurisdictions of the crime of aggression, one that reflects customary international law and respects the U.N. Charter’s integrity and the Security Council’s responsibility for the maintenance of international peace and security, would enhance the prospects to define the crime of aggression in the Rome Statute and the possibility of other U.N. member states’ ratifying it, including the U.S. Also, it would strengthen the prospects for the eventual successful prosecution of crimes of aggression.First, this paper will review and analyze the general characteristics of the crime of aggression and the historical background of the crime of aggression (from the Nuremberg Military Tribunal to the Rome Statute) in part II. Part III covers the definition of the crime of aggression in light of proposals in the Preparatory Commission (from 1st to 10th) and discussions in the ad hoc working group (from 1st to 4th) and elements of this crime. Part IV discusses the relationship between the ICC and the Security Council from the various points of view concerning the competence of ICC and Security Council, under the U.N. Charter. Finally, through these procedures, this paper will confirm and inquire the current moot issues and suggests desirable a definition and conditions of the crime of aggression in part V.Based on the research outlined above, this paper concludes that concerning the definition of the crime of aggression, first the definition of this crime should follow the “generic approach.” Second, the crime of aggression and the act of aggression should be separately stipulated in the definition. That is, the crime of aggression should contain the provisions included in the Nuremberg Charter and also reflect the general recognition on it developed up the point of current circumstances. The act of aggression should follow the provisions of precedents such as resolution 3314(XXIX) of 1974 and the ILC Draft Code of Crimes against the Peace and Security of Mankind 1996. Third, the definition of the crime of aggression should comply with the principle of legality. Thus essential material and mental elements of crime should be included in it.Concerning the jurisdiction of the Crime of aggression, this paper concludes that first the Security Council’s primary responsibility for determining the existence of the state aggression should be confirmed. Second, the Security Council’s exclusive right to make such determinations should be denied and there should be a provision which make legally possible for the General Assembly of the UN or the ICJ to make such determinations in case of absence of the determination from the Security Council. Third, to decide whether to give such secondary right to the General Assembly of the UN or the ICJ should be settled by a political compromise through a structured and clear debate and the room for such debate should be opened not only to the state party to the Rome Statute, but also to all UN members.

Indicting Kim Jong Il in the International Criminal Court : problems and possibilities

김연미 Graduate School of International Studies, Yonsei U 2005 국내석사

Three resolutions on North Korean human rights situation have been passed for three consecutive times in the United Nations Human Rights Commission. Among the human rights violations going on inside North Korea, the system of political prison camps and the practice of tortures inside the camps can be classified as the most serious form of crime that violates jus cogens, the peremptory norms. This thesis tests whether this violation of customary international law can be corrected through the International Criminal Court. Based on the Rome Statute, the thesis proves that Kim Jong Il who controls the political and social system of North Korea is responsible for the violation of peremptory norm. This hypothetical case is examined with every applicable article of the Rome Statute and other international law. Also this thesis elaborates the problems of this hypothetical case by bringing up issues such as possible unfairness of Security Council’s referral and no alternative to Kim Jong Il regime inside North Korea.