북한에서 인권의 중대한 위반을 행한 개인에 대한 형사책임의 추궁

초록

This article focuses on the modes of criminal accountability for the perpetrators who have gravely violated human rights in North Korea and thus analyzes the best forum for the accountability of the North Korean officials. In doing so, this article has in mind the time for the accountability, that is, when the accountability can be pursued effectively. The two possible forums for the prosecution of the North Korean officials for grave human rights abuses before unification of the Korean Peninsula. The first one is the ICC where the North Korean human rights situations will be referred. This option might, however, be ineffective because the North Korea is not a party to the ICC Statute. Of Course the UN Security Council can refer it to the ICC, but its feasibility will be limited due to the veto power of one or two permanent members of the Security Council. The second forum is foreign domestic criminal courts outside the North Korea. These courts include those of South Korea. Foreign courts can exercise the criminal jurisdiction under the principle of universality over North Korean officials who committed the crimes against humanity in the area of the North Korea. But the immunity rationae personae protects high-ranking representatives of a State from being subjected to foreign criminal jurisdiction and covers official as well as private acts. And immunity rationae materiae which is attached to official acts is also conceived as a substantive defence, which ensures that an official does not incur individual criminal responsibility for crimes. At present days, the large majority of the domestic case law upholds immunity rationae personae of so-called ‘troika’ in office, that is, the incumbent heads of State, the heads of government, and ministers of foreign affairs, even when they committed international crimes such as crimes against humanity. They are considered to be absolutely immune during the tenure of their office for any international crimes. With respect to the immunity rationae materiae, former heads of State and other State officials are, however, considered to be individually responsible for the commission of international crimes including crimes against humanity. The forums which would be available after the unification of Korean Peninsula are as follows; The first one is the domestic courts of new unified Korea by exercising the jurisdiction on the basis principle of territoriality or universal jurisdiction as stipulated in existing Korean ICC implementation law. The second one is so-called hybrid or internationalized tribunals which can be established after unification between South Korea and North Korea. This forum will attempt to increase legit

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