한국에 있어서 ICC규정 침략범죄조항의 국내적 이행

초록

The ICC Statute does not impose any obligations with respect to domestic implementation method of Articles on the crime of aggression. Accordingly, from the standpoint of international law, it is possible to ratify the Kampala Amendments without actually implementing them, and it is also possible to ratify the amendments now and implement them later. Nevertheless, a large number of countries, when they ratify an international treaty, try to implement it within domestic law. In particular, in relation to the Kampala Amendments, countries have legislated domestic implementation laws at the time of ratification, in order to properly apply the principle of complementarity included in the ICC Statute. When determining domestic implementation methods for the Kampala Amendments, countries may wish to partially adjust the definition of crime of aggression in accordance with the conditions of domestic law. However, when applying the Kampala Amendments to domestic legislation, it is recommended to incorporate the whole phrase that was adopted at the Kampala Conference. This is because if the definition of acts of aggression is narrowed or broadened compared to the Kampala Amendments’ definition, there is a risk of legal validity issues from the perspective of international law. The definition of crime of aggression in the Kampala Amendments can be considered as the product of developments in customary international law to date, and therefore, in particular when the range of this crime is broadened, doubts about international legal validity may arise. Looking at the early actions of countries following the Kampala Conference, domestic implementation of Article 8 bis mostly follows the verbatim definition of crimes of aggression provided by the text of the Kampala Amendments. When choosing a method for domestic implementation, countries must consider the principle of complementarity within the ICC Statute. When applying the principle of complementarity, if the countries involved do not properly reflect the definition of crime of aggression, or only partially reflect the definition, they are essentially conceding their own primary rights to criminal jurisdiction for future aggression-related incidents to the ICC, and handing over responsibility for the punishments to the ICC. In other words, they would be opting for international prosecution for such incidents. Such a situation would not be beneficial for that country. Conversely, if the definition of crime of aggression in domestic legislation is broader than that of the Kampala Amendments, the country may also have to confront the issue of legal validity. Of course, if the expanded domestic law applies only to the residents of the ratifying country (the prosecuting country), there will be no issue of legal validity. However, when the country intends to prosecute a resident of another country for actions outside the definition of crime of aggression agreed at Kampala, there may be difficulties in gaining the cooperation of the other country, and, above all, jurisdictional bases under customary international law will not be available. If countries implement the definition of crime of aggression in the Kampala Amendments, they need to decide whether only their own leaders will be subject to punishment, or whether other countries’ leaders will also be subject to punishment. Domestic laws that criminalize acts of aggression make it possible to suppress future acts of aggression perpetrated by the country’s own leaders. This is because when these leaders have to decide about the use of military force in the future, they have to take into account the existence of these domestic laws. Therefore, domestic implementation of the definition of crime of aggression serves as a deterrent force against war, and, in particular, it reminds the country’s people of the illegality of acts of aggression. According to the jurisdiction system chosen by the implementing country, in some cases, that country’s domestic legal system may even criminalize acts of aggression committed by leaders of other countries. This is particularly true when the acts of aggression are perpetrated against that country (the prosecuting country), and they assert their jurisdiction on the basis of the territoriality principle. However, in this case, the implementing country (the prosecuting country) should be aware that only a very limited number of defendants may be punished due to the nature of crime of aggression as leadership crime, and that state immunity could be applied in relation to crime of aggression committed by foreign leaders. Therefore, domestic criminal jurisdiction for foreign leaders in a domestic court may not be achievable in certain real cases. Countries that only assert criminal jurisdiction for crime of aggression perpetrated by their own people are able to avoid the major international political and legal issues accompanying prosecution of foreign leaders. However, in order to achieve the international goal of eradicating crime of aggression and ending impunity, the relevant foreign leaders need to be made subject to punishment under certain circumstances, whether this is based on the territoriality principle or on universal jurisdiction.

키워드