'반인도적 범죄'의 국내적 수용 : 그 개념과 국내 수용방안을 중심으로 Definition and its lncorporation in Korea = Crimes against Humanity

다국어 초록 (Multilingual Abstract)

Torture expert, Lee Geun-An, finally appeared before people long after disappearance from people. Victims and their families have been seeking to bring him to justice for the last decade. However, they have failed to do so because there were many legal obstacles such as statute of limitation, which prevents him form being punished regardless of nature of crimes committed by him. Crimes Against Humanity(CAH) appeared to response this absurdity. Korean society has begun to look carefully at this new concept to bring perpetrators to justice.
Under this situation, this article is designed to introduce to Korea society several issues around definition of CAH, which has been recognized by international community for the last century, and how to incorporate this new concept into Korea domestic legal system.
Author articulates CAH/Es definition through Nuremberg and recent two ad-hoc international tribunals, and further 1998 Rome Statute. Through this analysis, author makes clear that historical evaluation of CAH has loosen requirements to constitute this crime so that this crime can be applied to heinous human rights violations without military or international character. However, minimum requirements to constitute this crime shall be systematic or widespread human rights violations against civilians. According to this explanation, LEE Geun-An case can be sufficiently categorized as one of CAH.
Author also endeavors to list legal characteristics of CAH, recognized by customary international law. First, CAH is one of certain offenses recognized by international community as universal concern for which any state has jurisdiction to punish. Second, statute of limitation cannot be applied to CAH. This kind of heinous crimes shall be punishable at any time without limitation. Third, CAH must be punishable so that CAH/Es perpetrators shall not excused in the pretext of national harmony.
Lastly, o^nullum crimen sine lege; nullum poena sine lege(no crime without law, no punishment without law)o¨ principle shall be generally applied to CAH. However, international criminal law and domestic practice have changed this principle from strict principle to loose. For example, CAH can be punishable without specific provision of universal jurisdiction once equivalent crimes are prescribed in domestic law.
Author finally articulates how to incorporate CAH into Korean legal system. International law including customary international law is treated same as domestic law according to Constitution, without which, however, international obligation cannot be properly implemented in domestic arena. Author stresses that special legislation, so-called Special Act against Crimes Against Humanity, shall be enacted to apply the above characteristics.