ICC의 刑事責任阻却事由 : 第31⑴⒞條를 중심으로 = Grounds for Excluding Criminal Responsibility of International Criminal Court

다국어 초록 (Multilingual Abstract)

The Rome Statute of the International Criminal Court, which opened for signature on 17 July 1998 at the Rome Diplomatic Conference after years of painstaking preparatory negotiations, represents a major breakthrough in the codification and enforcement of international criminal law. It creates a criminal legal order applicable to all human beings, coupled with an impartial international criminal jurisdiction over four categories of crime: genocide, crimes against humanity, war crimes and aggression. The adoption of the Rome Statute marks the end of a historical process that commenced after World War I, as well as the beginning of a new phase of international justice, in which the international community no longer tolerates impunity for perpetrators of these heinous crimes.
It seems extremely incongruous that genocide, crimes against humanity and war crimes could ever be justified or excused by 'defensive force' - self-defence, defence of others and defence of property. Nonetheless, art 31⑴⒞ of the Rome Statute of the International Criminal Court codifies defensive force as a ground for excluding criminal responsibility. This provision was controversial and extremely difficult to negotiate at the Rome Conference of 1998, largely due to the conceptual differences that exit in respect of criminal defences between the various domestic legal systems of the world. This paper analyses the drafting history and wording of art 31⑴⒞ in order to clarify the precise scope of defensive force under the Rome Statute. It then seeks to ascertain the applicability of the provision to genocide, crimes against humanity and war crimes, and to thereby explore the nature of these crimes and the intended prosecutorial strategy of the International Criminal Court.
The logical incompatibility of defensive force and crimes within the jurisdiction of the ICC elucidates the essentially evil nature of these crimes and the intended prosecutorial strategy of the ICC. The ICC is a court established for 'big fish'--a relatively small number of leaders, organisers and planners--in cases of genocide, crimes against humanity, large-scale war crimes and aggression. The purpose of the Court is to end impunity for the perpetrators of 'unimaginable atrocities that deeply shock the conscience of humanity'. In light of political and budgetary constraints, the energies of the prosecutor will be confined to addressing 'the most serious crimes of concern to the international community as a whole'. Where a case satisfies the requirements of defensive force as outlined herein, this will serve as a strong indication that the case does not warrant the attention of the prosecutor.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. ICC規程 第31⑴⒞條에 대한 檢討
• Ⅲ. ICC規程 第31⑴⒞條의 構成要件
• 1. 개인 또는 재산에 대한 위험을 가하는 임박하고 불법적인 행위
• 2. 行爲
• 3. 主觀的 構成要件
• Ⅳ. 第31⑴⒞條와 特定犯罪
• 1. 集團殺害罪
• 2. 人道에 반하는 罪
• 3. 戰爭犯罪
• Ⅴ. 結論