국제평화유지활동 참여자의 국제범죄에 대한 형사재판관할권의 한계와 개선과제

Abstract

In the 20^(th) century, the international society has formed collective security system such as the UN and deployed ‘peacekeeping operations (PKO)’ in effort to restore and maintain international peace and security in dispute areas. However, the increase in numbers of PKOs has brought severe side effects. Criminal offense has frequently occurred by those affiliated to peacekeeping troops and other peace operations('peacekeepers'). Crimes committed by peacekeepers include civilian heavy casualties inflicted by mistaken bombings, violation of humanitarian laws and war crimes seen also in the past Kosovo war. Recent cases of mass sexual crimes committed during PKO in DRC and Sudan are reported continuously drawing international criticism. For the international community to regulate these crimes, crimes under the Rome Statute which are traditionally understood as international crimes should be included in the discussion along with crimes of international feature such as human trafficking and drugs trade. The UN and other international organizations in charge of PKOs do not have independent court and do not possess alternative mechanism to regulate these international crimes in the absence of jurisdiction of the receiving state. Therefore criminal jurisdiction over peacekeepers should be studied in relation with traditional state jurisdiction. Basically, criminal jurisdiction concerning international crimes belongs to domestic criminal court and therefore they should initially be punished by domestic laws. However, due to the structure of PKO_s, criminal jurisdiction of the receiving state is mostly excluded by SOFA which is based on the exemption of the sending state and international organizations as an exception of the territorial principle. Applying the universal jurisdiction and the jurisdiction of the ICC in order to prevent the exemption of jurisdiction are also in question due to its secondary character and the lack of support from the international society.