천안함 사건의 국제법적 의의 및 대응방안의 虛實 -천안함 사건 1주년에 즈음하여-

The “Cheonan Warship Incident” refers to the sinking of the Cheonan Warship, a (South) Korean naval corvette by an alleged North Korean torpedo fired by a small submersible which infiltrated into South Korean waters. Such act by North Korea constitutes invasion into a foreign nation’s territory and use of force against its naval vessel and crew members. In sum, it is an act of aggression as defined in the Definition of Aggression by the United Nations General Assembly Resolution 3314. An act of aggression violates the “principle of non-use of force” provided in the UN Charter and represents a “crime against peace.” It is an international breach of law incurring international responsibility. The sinking of the Cheonan Warship by North Korea’s armed attack also violates Article 2 (12) of the “Armistice Agreement” stipulating that the commanders of the opposing sides shall order and enforce a complete cessation of all hostilities. We can review all the possible responses to North Korea’s armed Attack and violation of law in the context of International Law. Currently, North Korea flatly denies the factual relations of the Cheonan Warship Incident and responsibility for its breach of international law concerning the Cheonan Warship Incident. Accordingly, it is advisable for the two Koreas to convene the “International Commission of Enquiry” by agreement to reaffirm factual relations and related causes by domestic and overseas personnel and experts recommended by the two sides in order to allow a neutral reinvestigation and acceptance of its results by the two sides. North Korea’s attack against the Cheonan Warship clearly constitutes an “armed attack.” However, exercise of the right of self-defense acknowledged in customary international law and Article 51 of the UN Charter requires satisfaction of the requirements of “necessity” and “proportionality,” i.e. armed force shall be used within an extent necessary to deter and counter an armed attack(invasion). In addition, it is necessary to meet the requirement of “immediacy”: the right of self-defense is needed to be exercised without delay. Accordingly, when element of immediacy can no longer be acknowledged due to the passage of sufficient time from the end of an armed attack as in the case of the Cheonan Warship Incident, the right of self-defense is not exercisable. It is generally admitted that so called “preemptive self-defense” or “anticipatory self-defense” may not be invoked in order to justify ex post facto military action. An injured State may take countermeasures for the purpose of subsequent inducement of the responsible State to stop violations of international law, guarantee the non-recurrence of such violations and provide reasonable reparations. Traditionally, “countermeasures have been taken in the name of reprisals. “armed reprisals” where an injured State uses force to respond to an armed attack by a responsible State is not acknowledged as justifiable. since the “principle of non-use of force” does not allow “armed reprisals,” it is required to seek other possible countermeasures including prohibiting North Korean vessels from entering South Korean territorial waters or reinforcing implementation of the PSI. Regarding the Cheonan Warship Incident, the most evidently suspected crime is a “crime of aggression.” However, since the revision of the Rome Statute of the ICC providing the definition of the “crime of aggression” and the condition of ICC’s exercise of jurisdiction over a “crime of aggression” does not come into effect, ICC’s exercise of jurisdiction over the crime of aggression by Jeong Il Kim or any other responsible person is not possible. Given the purpose of the regulations, “a crime against humanity” means an act of murder or annihilation comprising a part of a wide or systematic attack against civilian residents. Considering that the Cheonan Warship Incident was perpetrated against a naval vessel and military personnel, it would not be appropriate to define such as a crime against humanity in a legal sense. There is an argument that, currently, the two Koreas are in a state of truce, not peace, subject to the Armistice Agreement, therefore, under these circumstances, the laws of war including the Hague Rules apply to their armed conflicts. Thus, some opine that criminal jurisdiction may be acknowledged under the provisions of the ICC Statute concerning North Korea’s armed attack as a “treacherous killing and wounding.” However, if the “Laws of War” applies between the two Koreas, it is impossible to define the sinking of the Cheonan Warship by North Korea as an “aggression” under jus ad bellum. Besides, if such an act by North Korea cannot be proven to be “treacherous” under jus in bello, it consequently could be construed as a lawful act. With respect to North Korea’s violation of the International Law, it seems North Korea’s act constitutes not only a material breach of the Armistice Agreement, but also obligations under general international law including the UN Charter. It is imperative to proactively consider holding North Korea liable internationally. South Korea, as an injured State, may request North Korea, as a responsible State, to stop its breach of obligations and prevent any recurrence. In addition, South Korea may demand “reparations” in various forms including monetary compensation, concerning the damage it has incurred. In particular, it is necessary to gain “satisfaction” by causing North Korea to acknowledge its violation of international obligations, express regret, and make an official apology, at the very least. But, a realistically possible and effective response to North Korea’s act of aggression would be to submit the case to the UN Security Council to take “enforcement actions.” Regarding the Cheonan Warship Incident, however, even if the Security Council defines North Korea’s act as a “threat or breach of the peace” or “the act aggression,” there seems to be only a slim chance that it would adopt a resolution on military sanctions under Article 42 or tolerate a military action through “authorization of the use of force.” This is due to the risk that such action might touch off an all-out war on the peninsula between the two Koreas who are in a state of armistice, or serious difficulties associated with gaining consent from China, a permanent member of the Security Council. Accordingly, a realistically viable option would be to step up “non-military sanctions” to the maximum extent through resolutions of the UN Security Council. Many said that it would be far more effective and feasible to adopt an “Ordinary Resolution” or a “Presidential Statement” than a “Resolution on Sanctions” in confirming North Korea’s breach of law and its responsibilities concerning the Cheonan Warship Incident, and to strongly denounce the incident. In reality, UN Security Council adopted “Presidential Statement” merely to deplore the attack on the Cheonan Warship and underscore the importance of preventing further such attacks or hostilities against the Republic of Korea or in the region without pointing the North Korea as a injuring or responsible Party. Although South Korea continues to take countermeasures including prohibiting North Korean vessels from entering South Korean territorial waters or reinforcing implementation of the PSI against North Korea, there has been few results. As to bringing international claims against North Korea for its responsibility and taking Jeong Il Kim to the ICC, South Korea could not yet have any effective method to realize the suggested ideas.