러-우 전쟁 북한군 참전의 법적 검토: 포로의 처우와 국가책임을 중심으로

The legal status of the North Korean military became a problem until the existence of North Korean POW captured by the Ukrainian army during the battle was revealed and North Korea and Russia officially acknowledged the dispatch. There were various opinions that they could be part of the Russian military, that they were North Korean soldiers as joint comrades, and that they were mercenaries who participated in the war for private gain. In the end, as Russia and North Korea officially announced their dispatch of troops, the opinion that they were joint comrades in the North Korean military would be the most common. However, it is necessary to review their legal status because they possess Russian military identification cards and carry Russian military uniforms and weapons. However, despite their legal status, there is no theory that if captured, they will be granted prisoner status, given that they carried weapons openly before and during the start of the attack under Article 44 (3) of the First Protocol. This is because Ukraine is a party to the 1st Protocol and, is bound by the above provisions. On the other hand, as the captured North Korean prisoner interrogation process is exposed to the media and the Internet without filtration, substantial persecution or human rights violations of prisoners and their families are expected. It should also be noted that even with the consent of North Korean POWs, the question of whether they agree can be questioned due to their status as prisoners of war, and even if it is by genuine consent, the ICRC commentary's opinion that exposure to the media in the process of interrogating prisoners of war itself can violate Article 13's provisions that require protection from exposure to public curiosity. In addition, careful attention from the detaining power is requested in that such exposure may result in unfavorable treatment of POWs and their families. Furthermore, the international community, such as the ICRC, should review these issues carefully in the future. In addition, it would be argued that Article 118 of the 3rd Convention cannot be interpreted literally because the international practice established from the Korean War cannot be forcibly repatriated against the will of prisoners of war about the repatriation of North Korean POW. Finally, regarding state responsibility, there is an argument that both Russia and North Korea are responsible for the North Korean military's illegal activities and that North Korea is directly responsible for the act of supporting or assisting Russia's illegal invasion. However, it would be necessary to examine where the actions of state agencies under the National Responsibility Act belong based on facts. If the Russian authorities effectively controlled the North Korean military, this would be Russia's responsibility, and if the North Korean authorities still control the dispatched North Korean military, North Korea should take state responsibility. If both countries are under command and control through a common or joint command system between North Korea and Russia, the state responsibility of the North Korean army may vary depending on the agreement between Russia and North Korea for the North Korean military's illegal activities.