북한의 위기상황에 대한 국제인도법적 검토

초록

The crisis situations of North Korea can be classified into possible four stages: First, North Korea could be exposed to just natural or man-made disasters. Second, There could be occurrence of domestic turbulence with riot in North Korea, which may entail small scale of armed conflict. Third, international or non-international armed conflict may be prevailed in North Korea. Lastly, situation that North Korean government loses its ability and willingness to control North Korean population. The capacity of North Korean government to control and regulate above-mentioned four situations would vary according to the degree of actual exercise of sovereignty by North Korea. The scope of North Korean government’s capacity to exercise her sovereignty would also affect the substances and categories of international law applied to four situations. For instance, in first two situations, North Korean government would reject humanitarian assistance from foreign states because North Korean government still has the capacity to control over situations in North Korean region. However, according to development of international law, North Korean government would be under duty to accept humanitarian assistance from abroad. In last two situations, North Korea would be placed in international armed conflict situation, such as war with foreign states or humanitarian intervention including unilateral humanitarian intervention or humanitarian intervention on the authorization of the UN Security Council. Also, North Korea would be exposed to non-international armed conflict such as civil war. Undoubtedly, international humanitarian law would be applied to these situations. Under current international law, State has responsibility to make every effort to protect human rights of her people. In case of massive human rights violations, such as crime against humanity, war crime, genocide and ethnic cleansing committed against its people by the State, international society should perform collective responsibility to protect by using even military force. Thus, the UNSC takes into account of applying the idea of responsibility to protect to overcome extreme crisis situation of North Korea. This hypothesis would be supported by the fact that the UNSC likewise responded to the matters of Libyan crisis. In this stage, leaders of North Korean government would be charged with violation of international humanitarian law by the International Criminal Court(ICC). However, there will be great difficulty to envisage possible referral of the North Korea's situation to the ICC by a state party to the Rome Statute or independent investigation by the Prosecutor on the ground that North Korea is not the state party to the Rome Statute of the ICC. However, Darfur situation in Sudan and Libyan crisis was referred to the ICC by the UN Security Council. Only through this mechanism, individuals who committed the grave violation of the international humanitarian law in North Korea would be prosecuted by the ICC. Theoretically, with this UNSC's referral it would be possible to punish perpetrators of North Korea for committing core crimes under the Rome Statute in North Korean region after 1 July 2002 when the Rome Statute entered into force. In conclusion, comprehensive reviews on (i) the existence of the duty to accept humanitarian assistance on the part of the affected State, which would be variable according to above-mentioned four stages, (ii) necessity of military intervention into North Korea through the idea of Responsibility to Protect, (iii) possible application of international humanitarian law, and (iv) accountability of North Korean perpetrators of grave violation of international humanitarian law would be needed for confronting with possible crisis situations in North Korea.

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