로마조약(The Rome Statute)과 國際刑事裁判所(ICC)에 관한 小考

Abstract

Mandate of the Court According to the Rome Statute, the international community has entrusted the ICC to bring to justice those individuals who committed the most serious crimes provided by the Statute. In the light of the heinous nature and the massive scale of the crimes and the severity of the victim's sufferings, the Court is obliged to make great efforts to play its cardinal role of bringing their perpetrators to justice and deterring such crimes for the world peace. In this process, it is also expected that the ICC will contribute to the restoration of social order in post-conflict situations and the promotion of the rule of law throughout the international community. However simple this mandate may sound, the creation of the Court required not only a significant amount of time, but also the concerted efforts and cooperation of the international community. The enforcement of the Statute will be an even more arduous task, which will necessitate vigorous efforts of all the parties concerned, including the Court itself, its Prosecutor, States Parties, non States Parties, NGOs and individual supporters. Such efforts will be galvanized in due time to effectively enforce the jurisdiction of the ICC. History A historical reflection indicates that the Road to Rome was rather a long and contentious one. While the ICC has roots in early 19 th century, the story best began in 1872, when Gustav Moynier, one of the founders of the International Committee of the Red Cross, proposed a permanent court in response to the crimes of the Franco-Prussian War. The next serious call came after WWI, with the Peace Treaty of Versailles in 1919. German Kaiser Wilhelm Ⅱ could have been tried for the supreme offense against peace. After WWII, the Allies set up the Nuernberg and Tokyo Tribunals to try Axis war criminals. The international community, reflecting on the Holocaust, began to think once again that the establishment of an international criminal court was desirable and possible. Many thought that the founding of the UN would bring the world closer to a permanent court. Yet more than 50 years had to go by and a lot of groundwork by the United Nations General Assembly (“UNGA”) and International Legal Commission (“ILC”) was required before the ICC was born. In the past 50 years or so more than 86 million civilians have died in over 250 conflicts, and more than 170 million people have been stripped of rights, property and dignity. Most of them were defenseless women and children. Despite international laws forbidding all of these crimes, there has been no reliable system for enforcing these laws and so few perpetrators have been brought to justice. Climate of impunity has encouraged others to flout the laws of humanity. From the end of the Cold War in 1989 the idea of creating an ICC was resurrected on the agenda of the UNGA. The atmosphere was ripe because of a dramatic increase in the number of UN peace-keeping operations as well as drug-trafficking cases. The UNGA established a Preparatory Committee (“PrepCom”) in 1995 to discuss a final draft statute submitted by the ILC. Korea joined like-minded group and actively participated in the PrepCom in cooperation with NGOs from the beginning. Finally the UNGA adopted the Rome Statute of the ICC on July 17, 1998. It entered into force on July 1, 2002 after being ratified by 66 states. Emergence of New Order in the International Law and Criminal Law The evolution of international law was for a long time characterized by the exclusive development of substantive norms establishing rights and obligations of States. The criminal law, both substantive and procedural, was exclusively national. Therefore, the problem of the individual's criminal responsibility for violation of international law came up much later, when some moral values were gradually accepted as being of general interest for all states and the need to protect them was universally recognized. Just think about how to deal with piracy, slavery, drug trafficking, trading of women and children, dissemination of pornography, counterfeit of currency, terrorism, taking of hostages, war, genocide, apartheid, etc. that take place daily and globally. There was a separate development in the area of international criminal law. Faced with widespread violations of international humanitarian law, which resulted in mass killings, detention, ethnic cleansing and rape in former Yugoslavia and in Rwanda, the UN Security Council created two ad-hoc tribunals: ICTY in 1993 and ICTR in 1994, which will exist until 2008. Another similar ad-hoc tribunal for atrocities committed in Sierra Leone is in full operation. A Cambodian tribunal for mass killings committed by the Khmer Rouge will soon come into being. Core Crimes in the Rome Statute(“RS” or “Statute”) As general principles of criminal law, the Statute recognizes the principle of individual criminal responsibility for serious violations of international law. It also addresses the responsibility of leaders for actions of subordinates, the age of criminal responsibility(18yrs), the statute of limitation, an individual's responsibility for both an act and an omission, and defenses that would exclude criminal responsibility. Since there is no retroactivity, only crimes committed after July 1, 2002 will be dealt with by the ICC. The ICC can exercise its jurisdiction over 1) crimes of genocide(RS 6), 2) crimes against humanity(RS 7), 3) war crimes(RS 8) and 4) the crime of aggression(RS 5.1). The definitions of such core crimes in the RS are not intended to develop new standards in the areas of the laws of armed conflict or international humanitarian law. The statutory definition of genocide is based on the 1948 Genocide Convention. Crimes against humanity are defined in the Statute in conformity with the UN Charter, judgment of the Nuernberg Tribunal and the provisions of the Security Council resolutions concerning the ICTY and ICTR. War crimes are defined in the Statute for more than four pages, based on the four Geneva Conventions of 1949 and the Protocols of 1977. The crime of aggression is not defined in the Statute, however. The ICC will exercise jurisdiction once its definition is adopted and conditions are set out. The UNGA adopted a long definition of aggression in 1974. In essence, an act of aggression is a crime against international peace. A committee on the definition of “Aggression” will soon be chaired by Lichtenstein Ambassador to the UN. The definitions given to these categories of crimes contain a number of legal overlaps. Thus, if an objective pursued is the elimination of a group as such, it would be an act of genocide. If an act is directed against persons, it would be a crime against humanity. Murder and extermination, which are crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population, may also be crimes of genocide if committed against a qualified group, or war crimes if committed as part of a plan or policy or as part of a large scale commission. The Assembly of States Parties adopted the Elements of Crimes(“EOC”) and the Rules of Procedure and Evidence prepared by the PrepCom, among other key instruments, in order to assist the ICC in its interpretation and application of the relevant articles concerning crimes under the jurisdiction of the ICC. While EOC add nothing substantive on genocide and war crimes, it introduces concepts like military necessity, reasonableness and unlawful conduct. In any case EOC do not mean to change the Rome Statute, but it would be able to provide some detailed guidelines for national legislation. Since the definitions of four core crimes in the Statute have never been introduced to some domestic jurisdictions like Korea, those states parties would even experience difficulty of defining them in such a way to conform to their own national criminal law and legal system. Furthermore, there might be a practical difficulty to adopt the responsibility of top leaders in the national legislation in some jurisdictions. Admissibility of a Case The ICC has first to decide about the admissibility of the case. A case is inadmissible under the Statute, 1) if it is investigated or prosecuted by a State that has jurisdiction over it, unless the State is unwilling or unable to genuinely prosecute; 2) if a State with jurisdiction has investigated the case and has decided not to prosecute unless such a decision is the result of the unwillingness or the inability of the State to prosecute; 3) if the person has already been tried for the respective conduct; and 4) if the case is not of sufficient gravity to justify action. A State is considered to be unwilling to prosecute: 1) if it undertakes the national proceedings for the purpose of shielding the person from the court's jurisdiction; 2) if there is an unjustified delay in the proceedings, inconsistent with the intent to bring the person to justice; and 3) if the proceedings are not conducted independently or impartially. A State is considered to be unable to prosecute when its national judicial system is in a total or substantial collapse that prevents it from acquiring necessary evidence or obtaining the accused, or otherwise unable to carry out the proceedings. Challenges to the admissibility of a case may be brought only once by either side. Would a domestic amnesty be a bar for prosecution? The Statute is silent. But it is understood that domestic amnesty would be effective for domestic law offenses, and that more serious war crimes should not be subject to such an amnesty. The indictment of Pinochet by the Spanish court and then by the House of Lords of the United Kingdom ignored the self-amnesty decree passed by Pinochet in 1977 as contrary to international law. In countries going through transitions from dictatorship to democracy in Latin America, Eastern Europe and Africa in the 80s and 90s, struggles for truth and justice have resulted in a variety of policy instruments such as criminal prosecutions, truth commissions, reparation schemes and disqualification of persons. This shift towards holding leaders and public officials accountable raised a dilemma as to how to balance it against the need for national reconciliation in a society recently torn by conflict. What South Africa did is different from blanket amnesty of the type generally passed in some Latin American countries. In any case reconciliation should not be reached at the expense of the victims' right to see justice done. Jurisdiction of the International Criminal Court Com plem entarity Principle ― The ICC is a permanent international institution established by treaty for the purpose of investigating and prosecuting individuals who commit the most serious crimes of international concern. The exercise of its jurisdiction is complimentary to that of the national legal system of States parties. Thus national criminal jurisdiction has as a rule priority over the ICC jurisdiction. Actually all requests for cooperation, including the arrest and surrender of an accused, and securing evidence, are directed to and executed by national legal systems. It is only in two situations where the ICC jurisdiction comes into place: 1) when a national legal system is not able to investigate and prosecute persons alleged to have committed the crimes under its jurisdiction; 2) when a national legal system refuses or fails to investigate and prosecute such persons. It is an expression of collective action by States parties to a treaty that established an institution to carry out collective justice for certain international crimes. It does not infringe upon national sovereignty, as it is not overriding national legal systems that are capable of and willing to carry out the investigation and prosecution of certain international crimes. This is a central tenet of the Rome Statute and arguably the principle on which the success of the ICC will hinge. The complementarity regime has been defended as an effective and fair balance between national sovereignty concerns and the imperatives for the ICC action in the face of non-genuine state action. Exercise of Jurisdiction ― 1) The ICC is competent for crimes committed on the territory of a State party or by one of its nationals. 2) The Court is also competent when a State that is not a party consents to the court's jurisdiction and the crime has been committed on that state's territory or the accused is its national. 3) Its jurisdiction may also result from the extradition by a non-member State of a person who is not its national, but has committed a crime on its territory. 4) The ICC may exercise its jurisdiction over a case referred to by the UN Security Council. Although the ICC jurisdiction may become universal or close to universal by the ratification of the Rome Statute by more and more States, it is still territorial criminal jurisdiction. The concept of universality is reflected only in the referrals from the UN Security Council that are not linked to the territoriality or to the citizenship of any State. The Security Council is arguably the most important entity for the ICC, in terms of being the source of referrals of the most dangerous situations globally and in terms of affording real authority to obligations to cooperate with the ICC. But it is hard to imagine the Security Council agreeing to refer a situation to the ICC, no matter how heinous it may be, given the US attitude. At any rate the ICC will have to be the judge of its own competence, including when this may be contested. When the war in Iraq took place, certain international media referred to Tony Blair as a possible client of the ICC who might have a prospect of being prosecuted with his wife Cherie Blair's human rights law firm as his defense counsel, because the UK is a state party. But it is not so simple as the media suggest it is. The ICC has no jurisdiction over States or other legal entities as opposed to individuals. The defense advanced at the Nuernberg and Tokyo tribunals was state responsibility that would have excluded individual responsibility, invoking the act of State. It was rejected there and also by ICTY and ICTR. What about diplomatic privileges and immunities? They are procedural one. It means that there is no immunity of the legal responsibility, but immunity in respect of the local jurisdiction. The objective of the immunity is to enable the beneficiary to carry out his or her functions unhindered. It is not granted to facilitate or guarantee immunity for the most serious violations of international human rights and humanitarian law. A N ew Legal Defense for South K orea ― In connection with an issue of the ICC's jurisdiction, what is the real significance of Korea's ratification? It does mean that Korea's ratification would constitute a strong legal defense against a possible aggression or blitzkrieg by ever unpredictable North Korean authorities on top of the military defense that South Korea has been spending billions of dollars to build up in the last 50 some years. If, for example, North Korea attacks South and war crimes are committed in South Korea that is a territory of a State Party, the ICC will, in principle, be able to exercise its jurisdiction. Procedural due process-Investigation, Evidence, Appeal Four Stages of the ICC Proceedings ― The ICC proceedings follow the sequence of 1) investigation, 2) confirmation hearing(RS 61), 3) trial, 4) appeals and revision proceedings. But these procedural stages are preceded by the mechanisms triggering the exercise of the ICC's jurisdiction and admissibility proceedings, and they are followed by the enforcement of the international sentence. Com mencem ent of Investigation by Prosecutor ― The prosecutor shall submit his or her request for authorization of the investigation to the pre-trial chamber(RS 15.3). If the prosecutor informs the chamber of his or her decision not to proceed(RS 53) under certain circumstances, pre-trial chamber, the referring state or the Security Council may request the prosecutor to reconsider a decision not to proceed. The prosecutor may collect and examine evidence, request the presence of and question persons such as accused, witnesses, victims, obtain the cooperation of a State, organization or person by agreements to that effect, agree not to disclose information received as confidential, take necessary measures to ensure its confidentiality, the protection of persons and preservation of evidence. An arrest warrant may be issued by the pre-trial chamber at the request of the prosecutor. It would be highly desirable to specify the general criteria guiding the selection of cases at the outset of the ICC operation. A clear pronunciation of prosecution policy, given in the abstract, could prevent the public from harboring unrealistic expectations as well as avoid any appearance of political bias in particular cases. Use of Unique Investigative Opportunity ― The prosecutor may also request the pre-trial chamber to authorize “a unique investigative opportunity” under Article 56 of the RS, to take measures to collect evidence that may not be available subsequently for the trial, an example being a witness unwilling to come to the Hague to testify. A broad utilization of this procedural initiative might diminish the role of the trial as the climax of the proceedings. It is obvious that the potential to reduce the length of the trial constitutes a powerful incentive to make broad use of this procedural power to take evidence in advance of trial. Confirmation Hearing ― It is a procedure where disputed facts, issues and evidence are identified and arranged. Instead of an ex parte review of the indictment as it exists in the ICTY and ICTR, the ICC hearing to confirm the charges shall be held in the presence of the charged person who has the right to object to the charges, challenge the evidence presented by the prosecutor and to present evidence. The idea is to concentrate all the disclosure at the pre-trial stage and to place it under the supervision of the pre-trial chamber, in order not to repeat the delay experienced at the ICTY and ICTR. Appeal or R evision Procedure ― Decisions of the trial chamber of acquittal or conviction may be appealed on grounds like procedural error, error of fact or of law, or any other ground affecting the procedural fairness. A sentence may be appealed on the ground of disproportion. The appeals chamber has broad power to reverse or amend the appealed decision or to order a new trial before a different trial chamber. The Role of Defense ― What is the role of the defense? While the RS devised the prosecutor as an officer of justice rather than a partisan advocate, the defense could still insist on conducting investigations on its own. The ICC's normative framework allows for a degree of coordination between Prosecution and Defense in their investigative activities. Reparation for V ictim s ― Arrested or convicted persons are entitled to compensation if they are victims of unlawful arrest or detention, or if their conviction has been reversed on the basis of newly discovered facts. The ICC has also the power to order the payment of appropriate reparation such as compensation, restitution and rehabilitation to the victims of the acts committed by the convicted person only against the convicted person. The Statute foresees the establishment of a Trust Fund for the benefit of victims of crimes within the jurisdiction of the ICC, but no success so far in this respect. Interests of the victims are also defended by a Victims and Witnesses Unit, to be set up by the Registrar, for protective measures and security arrangement, counseling and assistance. International Cooperation and Judicial Assistance ― The RS provides for many articles(86-102) with respect to international cooperation and judicial assistance between States Parties and the ICC. They have to do with surrender of persons to the ICC, the ICC's ability to make provisional arrests, and State responsibility to cover costs associated with requests from the ICC. With an arguable exception of the failed State scenario under the RS(57.3.d.), the ICC has no power to take forcible measures on the territory of a State. Thus intrusive measures such as searches and seizures will have to be executed by the State upon request by the ICC. States parties are under no duty to compel witness to appear in the Hague to testify at trial, but only a duty to facilitate the voluntary appearance of a person as witness. Video-link or videotaping would be used rather frequently. Enforcem ent of Judgm ent ― To enforce the judgment the ICC relies on the States who volunteer to do so or the host state. The relevant provisions include the recognition of judgment, the role of States in enforcement of sentences, the transfer of the person upon completion of a sentence, and parole and commutation of sentences. In order for the ICC to be fully effective it relies on its States Parties to adopt national legislation enabling cooperation with the ICC. Judicial G uarantee for Procedural Fairness ― The above-mentioned judicial guarantee for procedural fairness is in conformity with the International Covenant of Civil and Political Rights, with the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights of 1969, the 1981 African Convention on Human Rights and Peoples Rights as well as the 1949 Geneva Convention and Additional Protocols I and Ⅱ of 1977. They are minimum guarantees, meaning that internal laws and other international instruments may offer more judicial guarantees to persons allegedly responsible for such crimes. Com bination of Civil Law and C omm on Law ― The provisions of the Statute dealing with general principles of criminal law and rules of procedure(RS 22-33) are a combination of the common law and the civil law. For instance, while the adversarial character of trials is maintained, judges are assigned a broad competence in matters dealing with investigation and the examination of witnesses. Therefore, how the overall architecture of the ICC's proceedings will be shaped depends upon the judges. Bilateral Im punity Agreement Pressed by the United States Out of its fear that the ICC will be used as a forum for politically motivated prosecutions, the United States formally renunciated its support for the ICC and unsigned the RS in May, 2002. In addition, the US amended the American Servicemembers' Protection Act in July 2002. It reads in part: “Nothing in this title shall prohibit the US from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other members of Al Quaeda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.” Furthermore, 51 countries, including some that ratified the RS, have so far signed a US-proposed non-surrender agreement, or so-called Article 98 agreement because of the strong pressure from the US Government. These bilateral impunity agreements, if signed, would provide that neither party to the accord would bring the other's current or former government officials, military or other personnel, regardless of whether or not they are nationals of the state concerned, before the jurisdiction of the ICC. Many legal experts argue that the US is misinterpreting and misusing Article 98 of the RS, for Article 98 was designed to address any potential discrepancies that may arise as a result of the existing agreements and to permit cooperation with the ICC. It thus means simply to cover anything like Status of Forces Agreements(SOFA), not a bilateral agreement that the US is now seeking. Experts further contend that if countries that have ratified the RS enter into such an agreement, they would breach their obligations under international law. In response to the US attacks against the ICC, the European Union came up with a set of guiding principles that look more practical. While the US pressure seems to be intensified with respect to the signing of the bilateral agreement, there are separate developments that make the US government realize difficulties attached to it. First, the US government originally expected all the states parties to sign the Article 98 agreement, but only 51 signed so far and most of them are non-member states. The US realizes that it would be even more difficult to have the bilateral agreements ratified in their own countries. Second, the US gradually realizes that it poses so many difficulties to create a central criminal court to deal with the aftermath of war in Iraq. Third, according to the press reports, President Bush and Prime Minister Blair have been sued in the Belgian court under its domestic legislation that allows it to exercise universal jurisdiction. An occasion like this would help the US understand that global justice to be managed by an international institution such as the ICC would be far more predictable and fairer than universal jurisdiction individually exercised by so many national courts. Challenges and Opportunities Encouragem ent of Ratification and Aim of Universality ― As one of the most important courts in the world, the ICC must aspire to meet the world's most rigorous standards for fairness, effectiveness and independence. It is assured that the judges of the ICC are fully committed to this end. Since our swearing-in on March 11 in the Hague, all of the newly elected Judges, myself included, are actively and diligently taking up the tasks at hand. Under the leadership of the newly elected presidency several working groups have been created to address the fundamental works that need our immediate attention such as drafting of various rules and regulations, complementarity issues, symbolic issues including drafting of the code of judicial ethics, logistics issues, administration issues, victim protection issues, operational issues of pre-trial chambers as well as appeals chamber, draft budget for next year, etc. It is anticipated that the court would be able to begin its judicial work some time next year, although a lot depends on the prosecutor. Unanimous election of Mr. Luis Moreno, a distinguished lawyer from Argentine, as the first Prosecutor of the Court was an important first step toward for the proper functioning of the Court. On June 16, Prosecutor of the ICC was inaugurated, thus enabling the Court to deal with a case at any time. Mr. Bruno Cathala's appointment as the Registrar of the ICC on June 24 marked the completion of the elections and appointments for the Court's highest officials. With these key positions filled, these officials are now able to embark on their eminent job of operating a new Court in full swing. On July 1, we celebrated the first anniversary of the Rome Statute. It is now imperative for the States Parties to endeavor to induce hesitant non- States Parties to join the ICC, in order to endow the Court with universality that is essential for strengthening its effectiveness. To fully realize the Court's objectives of deterring egregious crimes and contributing to world peace through justice, the Court's jurisdiction must be universal to ensure that all people are held equally accountable under international humanitarian law before the Court. Thus, the acquisition of the universality of the Statute is one of the most crucial challenges we face today. Moreover in this endeavor, it will be important for the Court to remain open to any suggestions and proposals from States Parties and NGOs. Especially, the participation of more Asian States should be pursued urgently, given their low representation at the current map of the States Parties to the Rome Statute. Considering the fact that within the five years since its adoption, the Rome Statute has already received 139 signatories and 91 parties, I believe that achieving the Court's universality is a realistic goal, and that the continued support of the international community and the demonstration of the effectiveness of the Court will expedite the States' ratification process. Im plem entation of the O bligations under the RS by States Paries ― Until now, we have witnessed countless victims around the globe, including children and women, suffer from the heinous crimes. And the perpetrators of these crimes have gone largely unpunished. Since the foremost task of the ICC is to put an end to impunity for genocide, crimes against humanity and war crimes, the success of the Court will largely depend on its ability to punish perpetrators of those crimes within its jurisdiction. The implementation of the obligations under the Statute by each and every State Party is very important to achieve these ends. Part 9 of the Rome Statute laid down the concrete obligations of States Parties for international cooperation and judicial assistance as well as for enactment of domestic implementing legislation. Enactm ent of Dom estic Implementing Legislation ― Since the Statute itself stipulates a wide range of obligations for the States Parties, the enactment and implementation of national legislation will be a politically important and technically complicated process to ensure a fair and just investigation and trial at the national level. The purpose of ICC implementing legislation is two fold: to place States Parties to cooperate with the ICC; and to place them in position to exercise national jurisdiction in lieu of the ICC. As national implementing legislation comes slow and rather evolutionary, strong legal and political support would be crucial. However, some procedural details in the Statute and the Rules may be foreign to or even in conflict with national criminal procedure or even the constitutional provisions in some jurisdictions. It would not be easy to iron out in the national legislation procedural details on the judicial cooperation and assistance regarding arrest, detention, surrender, transfer of the convicted, or stay of proceedings pending admissibility. In addition, many relevant national procedural legislations would have to be amended for statutory harmonization, even after all the constitutional questions have been cleared out through interpretation and otherwise. Som e Issues Regarding National Implementing Legislation Basic legislative form ― On November 14, 2002, the Republic of Korea finally ratified the Rome Statute and became the 83 rd State to ratify it. As the International Criminal Court (ICC) shall be complementary to national jurisdictions, the State Parties should 1) establish national implementing legislation, which tries individuals accused of the ICC crimes; 2) provide procedures enabling full co-operation with the Court in order to comply with the Rome Statute, which requires international co-operation and legal assistance to the Court. There are two fundamental points to consider in preparation for such a legislation in view of the tendency that even laws and legal systems that are most territorial in nature such as criminal law and procedure cannot go against the stream of internationalization and are developing into transnational norms. First, taking this opportunity Korea's criminal law and procedure should be overhauled in such a way to meet the international human rights standards. Second, all the existing laws and legal systems should be revamped to harmonize with international criminal norms of the Rome Statute. Regarding the legislative form, the Ministry of Justice plans to write a single comprehensive piece of legislation regarding punishment and crimes under the jurisdiction of the International Criminal Court rather than amend all the relevant laws or enact several individual statutes. In view of the wide variety of crime types under the Statute and the various international co-operation required by the ICC a single piece of legislation may be an appropriate option. If so, this legislation must include not only the detailed definitions and elements of the ICC crimes and procedures for their punishment, but provisions of the Rome Statute that impose states parties' duty to cooperate with and assist the ICC. This mode of legislation would be concise, but should see to it that there is no discrepancy between the new ICC statute and existing national criminal law and procedure in terms of protection and legal treatments of criminal defendants. There are several points for discussion. 1) Jurisdiction of Universality The Korean Penal Code(“Code”) applies to Korean nationals as well as foreigners who committed crimes in the Korean territory(Art. 2, Code). It is also applied to foreigners who committed seven types of crimes, such as sedition, outside the Korean territory(Art. 5, Code). Furthermore, the Code is also applied to foreigners who committed crimes other than the seven types mentioned above against the Republic of Korea or Korean nationals outside the Korean territory(Art. 6, Code). Therefore, Korean Penal Code does not apply unless an ICC crime committed outside the Korean territory by a foreigner has been committed against Korea or a Korean national. However, the Rome Statute reaffirms that the exercise of criminal jurisdiction over those responsible for international crimes is a duty of every State. The national implementing legislation should, therefore, recognize universal jurisdiction that extends to crimes committed by a foreigner outside the Korean territory. However, whether universal jurisdiction would have to be recognized with no restriction varies from country to country. In Canada, for instance, its jurisdiction can be exercised only when a foreigner who has committed an ICC crime outside the Canadian territory is present in Canada, while in Germany its universal jurisdiction can be exercised with no restriction. This issue would perhaps require political determination rather than legal examination. 2) Concept of the Core Crim es The national implementing legislation should write concepts and elements of the ICC crimes, in detail and in maximum clarity, to enable national legal system to investigate and prosecute them with no difficulty, as the jurisdiction of the International Criminal Court is complementary to national jurisdiction. Even terminologies and concepts of those crimes are so foreign to the Korean national law and legal system as to be often misunderstood and mistranslated. Thus, terms such as extermination, enslavement, persecution and enforced disappearance are likely to lose its accuracy of the elements of crime when incorporated into Korean law through translation, although fine legislative techniques and accurate translation may to certain extent alleviate such difficulties. Criticizing that failure to explicitly include the terrorism and drug-trafficking, despite their severity in modern society that heavily threats the international peace and security, may impair the integrity of the Rome Statute, China argues that the crimes that fall under the ICC jurisdiction would need to be improved. First, article 6(d) of the Elements of Crimes provides that genocide would include any measures imposed on person or persons intended to prevent births. If so, a demographic national policy of a state party might constitute a violation of the international law. Genocide should also be distinguished, depending upon when it occurs, in the time of peace or during the war(or arm conflict). Second, China asks if crimes against humanity under article 7 of the Statute were committed in the time of peace, under what criteria could the Security Council or the prosecutor decide to refer a case to the ICC? If a group pretends to be religious or culture, but in fact commits the terrorism, drug-trafficking, money laundering, does the ICC still think the nation or concerned person commits the crime against humanity for national interest? It is difficult to define a cultural or religious group in connection with crimes against humanity. Third, China contends that war crimes under article 8 of the Statute do not refer to the kind of weapon with which the person commits war crimes, including nuclear weapons. Also article 8 has no clear definition on or reference to the objectives, but whether there were military objectives would be an important element of war crimes. It is hoped that these discussions should be reflected on the national legislation. 3) Punishment Article 77 of the Rome Statute provides for a maximum of 30 years of imprisonment or a term of life sentence. In Korea, there are issues of how long mandatory sentences should be imposed, and whether, if so, they should be imposed uniformly, or different mandatory sentences for different types of crimes. For example, the Penal Code of Korea provides for death penalty, life imprisonment, or minimum of 5 years of imprisonment in case of homicide. On the other hand, penalty for violence against the accused, which is a form of torture, shall be a maximum of 5 years of imprisonment. Thus, the wide deviation of penalties for homicide and torture under the Code poses a daunting task of their harmonization. Therefore, it would be necessary to compare the relative gravity of the ICC crimes and those under the Korean Code, and determine reasonable and balanced penalties for such crimes. 4) Offences Against the Administration of Justice Article 70 of the Rome Statute provides that the International Criminal Court may exercise its jurisdiction over offences against the administration of justice. Each State Party shall extend its criminal laws penalizing offences against integrity of its own investigative or judicial process to offences against the administration of justice referred to in article 70, committed on its territory, or by one of its nationals. Since the range of offences against the administration of justice under the Korean Code such as perjury and destruction of evidence is narrower than that of the Statute, there might be a situation where some cases may become free of penalty in Korea while penalized in the ICC. Thus a national implementing legislation should provide for penalties for all the offences in Article 70. 5) No Im munity regardless of Official Capacity Article 27 of the Statute makes it clear that it shall apply to all persons with no distinction based on official capacity. Thus there will be no immunity to the head of state or a monarch. Although some constitutional monarchies are hesitant to ratify the statute for this reason, Korea would have no difficulty to enact a national legislation that shall subject the head of state to the ICC jurisdiction. Many other constitutional monarchies in Western Europe ratified the Statute with no difficulty. 6) D uty to C ooperate Since the Extradition Act and the Act on the International Cooperation in Criminal Cases would apply with respect to the duty to comply with requests from the court for co-operation and assistances, any parts of those Acts that are contradictory to the Rome Statute should be adjusted and supplemented. For example, the Extradition Act Apells out provides for grounds for absolute refusal of extradition(art. 8) and grounds for discretionary refusal of extradition(art. 9). But most of such grounds would not constitute grounds for refusing extradition request of the ICC. Also, Article 59 of the Rome Statute provides that “a State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.” The competent judicial authority in the custodial State would thus have to determine whether the warrant applies to that person, whether the person has been arrested in accordance with the proper process, and whether the person's rights have been respected. Since the Extradition Act contains no provision of such procedure, the national implementing legislation should supplement them. 7) Attem pt, Preparation or C onspiracy Article 25 of the Rome Statute penalizes a person who “attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions.” However, the Statute does not penalize a person who has abandoned the effort to commit the crime or otherwise prevented the completion of the crime. Attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose is not punishable under the Statute, while article 26 of the Korean Code provides exemption or mitigation of penalty for such a case. Furthermore, the Statute does not provide any penalty for preparation or conspiracy while Korean Code penalizes preparation and conspiracy of certain serious crimes such as homicide. It is essential to provide for measures to resolve these differences in penalty in the national legislation. 8) Protection of Defendants In some cases, the Korean criminal procedure does not fully protect the rights of the accused, which are ensured by the Statute. For example, defense lawyer's right to participate is not sufficiently protected during the investigation stage. In addition, the principle of excluding illegally obtained evidence in criminal trial does not apply often. It is necessary to reform the criminal procedure in accordance with the international standards of human rights. 9) Statute of Lim itation The ICC crimes shall not be subject to any statute of limitation. Therefore the national legislation should also clearly provide that there shall be no statute of limitation with respect to indictment, criminal trial and execution of sentences. Conclusions Creation of the ICC is the collective call of the international community for correcting this wrong and establishing a new precedent in international justice. Creation of the ICC is a biggest step for globalized justice since international military tribunals in Nuernburg and Tokyo. The ICC is therefore the most important human rights institution that the world has seen in more than half a century. The ICC is part of the mankind's journey, that is our generation's chance to answer a call on behalf of future generations with combined sense of urgency and relief. 18 judges' participation in the court's first vital cases will define a new era in the global rule of law. If Martin Luther King may be quoted as a plea to the NGOs and lawyers, they should remain awake through a revolution in the international law as well as criminal law. We now stand on the border of the promised land for globalized justice. The older order of international law and criminal law is passing away and a new one is coming in. We should all accept this new order and learn to live together as brothers and sisters in a world society. Despite many hurdles ahead, the future and the success of the ICC is optimistic. It is also believed that this optimism is shared widely. However, Asia remains the least represented region in the ratification of the Rome Statute. Moreover, no country in Asia has yet completed the implementation of the legislation required by the Rome Statute. Therefore, the continued work of NGOs is crucial in inducing and encouraging more Asian States to ratify the Rome Statute and to ensure that all States Parties follow through in the implementation of the Statute. It is hoped that the ICC and many other NGOs will continue to expand their cooperation toward this end.