소말리아해적 문제와 군의 역할에 관한 국제법적 고찰

Issues on piracy off the coast of Somalia and the roles of military forces generally focus on how those acts are criminalized under international law and what practical measures the military forces of international community could take in order to suppress the crimes. The behaviors of the alleged pirates in Somali waters seem to constitute crimes under two important and comprehensive conventions regarding maritime matters, i.e., UN Convention on Law of the Sea (UNCLOS) and Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), among other treaties, and applicable laws of armed robbery at sea enacted by the legislatures of littoral states. Among those regimes that make the piratical acts unlawful, only UNCLOS provides effective physical measures to be taken in response to the acts, authorizing state warships to visit, search and arrest suspect pirates or pirate ships on the high seas. Such universal jurisdiction, however, may not be conferred over every type of piratical act because of the narrow definition of “piracy” under UNCLOS. For example, piracy committed in the territorial waters of states other than Somalia such as Oman or Yemen and violent acts on waters conducted without “private purpose” do not fall under the purview of “piracy and armed robbery at sea” as stated in a series of UN Security Council resolutions regarding piracy. There is no well-established rule concerning use of force against pirate suspects. The status of pirate suspects has been regarded as civilians regardless of whether rules of armed conflict apply in piracy situations. The only clear rule is that the pirate suspects cannot be targeted with military force because of their non-combatant status. Many scholars argue that the military forces in anti-piracy operations should be regarded as civil-enforcement forces. But this contention has not been fully proved effective in all piracy cases. Because of the unclear status of the naval forces working off the coast of Somalia, the nature of their use of force has not been clearly identified either. But, whether they are regular military forces or civil-enforcement forces, the rule of “self-defense” or “self-help” could become a governing principle on use of force against suspect pirates because they are both valid under the rules of armed conflict and domestic criminal law regarding use of force. Meanwhile, the issue of whether preemptive attack or anticipatory attack itself is possible in a militarily hostile situation almost always accompanies issues on the use of force. The core question about preemptive attack has been whether “armed conflict” by another state needs to precede the use of force authorized under Article 51 of UN Charter. But Article 51 does not apply in anti-piracy operation which excludes situations of armed conflict between “sovereign states.” Therefore, a different perspective on the issue of preemptive attack against pirate suspects needs to be drawn on case-by-case basis. As an alternative option to use of naval forces against piracy, many policy makers suggest that merchant vessels which will travel in so-called pirate-contaminated waters be equipped with weapons and security agents from private companies. Because no international regime has been established to govern this matter, the laws of the vessels' flag states as well as port states will be controlling. One might envision that, at some point in the future, international community and related international organizations collaborate to establish universal rules or guidance to govern the matters regarding armament of merchant ships.