전시 북한주민의 지위와 보호방안에 대한 고찰 -한반도 전시 상황에서 발생할 수 있는 사례를 중심으로-

Abstract

A North Korean defector, upon entering South Korean territory, acquires South Korean citizenship. That is because the territory of North Korea is considered an unoccupied territory of the South by the Southern regime. At the same time, however, North Koreans residing in their homeland are regarded as members of anti-government organization. Such dual status of North Koreans can also be found in various South Korean policies aimed at resettlement of North Koreans. The abovementioned dual status can be problematic when war occurs in Korean Peninsula. Hypothetically at wartime, residents of the occupied Northern territory are regarded as South Korean citizens, while at the same time being residents of the occupied territory. The ambivalence not only affects the North Koreans but also influences the application of international law. If one puts emphasis on North Koreans as residents of occupied territory, then the treatment of North Koreans will be determined according to international humanitarian law, as the war will be regarded as an international armed conflict. At the same time, the exercise of South Korean government’s sovereign power in the Northern territory will be deemed groundless. In other words, territory of the North will be viewed as part of a sovereign state, separate from the South. If such is how the Korean War—more precisely, the Second Korean War—proceeds, North Korean residents can receive humane treatment of international standard; but, the establishment of perpetual peace, i.e. the unification, will yet again be postponed. On the other hand, if an emphasis is put on North Koreans as South Korean citizens, only parts of international humanitarian law can be applied in the Korean Peninsula, since the military conflict will be regarded as a non- international one. Along with that comes a higher probability of international community recognizing South Korean sovereignty in the Northern territory. Concern with this scenario is a possibility that North Korean human rights might not be fully protected due to limited application of international humanitarian law. However, as the residents will be recognized as South Korean citizens, they will be subject to the South Korean law, under which the scope of protection is broader. At the same time, the assimilation process may reduce further conflicts from arising. As analyzed above, more peaceful resolution to a war in Korean Peninsula can be drawn if the conflict is recognized as a non-international clash of arms. In order for that to happen, the South Korean government has to have capacity to autonomously carry out military operations, while getting recognition from the international community of the special relations between the North and the South. For such optimum to be drawn, South Korean government’s preparation is essential. Also, in order to draw consent from neighboring countries for stabilization of the North, a method of multinational participation is called for.