국제인도법 위반 우려 국가에 대한 무기 수출 금지: 무기거래조약 제7조와 네덜란드 법원의 F-35 전투기 수출 중단 결정 검토

The international community has raised concerns of serious civilian damage amounting to a serious breach of international humanitarian law in the Israel-Hamas armed conflict. The Arms Trade Treaty obliges its 116 State Parties to control their arms export to prevent the exported weapons from contributing to a serious violation of international law. In the Netherlands, Germany and Denmark, civil society has actively utilized strategic litigation to request domestic courts to decide that states shall not maintain arms export licenses to Israel. Similar calls for such arms embargo have also been raised in Korean media outlets and the National Assembly. Despite the Arms Trade Treaty imposes the State Parties the obligation to conduct risk assessment and mitigation measures to prevent their arms export from contributing to serious international humanitarian law violation, there have been conflicting interpretations on the arms export risk assessment clause. The level of threshold for a risk to be “overriding” and the need to conduct reassessment given a change of circumstance are remaining obscure. In February 2024, the Hague Court of Appeal in the Netherlands decided that the “overriding risk” has the same meaning with “clear risk”, and the Netherlands must have reassess the F-35 export license to Israel and suspend it following the change of circumstances in Gaza. The landmark decision is the first court case dealing with Article 7 Paragraphs 3 and 7, and the decision has begun to guide state practice on the Treaty. This paper analyses the Article 7 Paragraphs 3 and 7 of the Arms Trade Treaty according to the rules of treaty interpretation. Following a provisional conclusion that the meaning of the treaty text is inconclusive, the paper looks to the Dutch Court judgment. The paper further evaluates the UK government decision to suspend arms export licenses to Israel, which generally follows the logic of the Dutch Court ruling. Lastly, the paper draws legal and policy implications for the Republic of Korea government, Korea is a rising player in the global arms trade. Yet there are complexities in the country’s treaty practice, as exemplified in a disparity between the official translation of the treaty and the treaty handbook published by its Foreign Ministry. Following a close look on the Dutch Court judgment and the British government decision to hold arms export to Israel, this paper suggests the Korean government to examine its export control regime, international cooperation on defense industry and arms procurement, and wartime military and public affairs operation procedures.