강제실종의 범죄화? ― 「강제실종방지협약」의 국내적 이행과 관련해서 ―

Abstract

According to the International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the United Nations General Assembly on 12th January 2007, ‘enforced disappearance’ is the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. The Convention requires states parties to adopt the legislative measures that may be needed to define the enforced disappearance as an offence and to impose an appropriate punishment commensurate with its extreme gravity. Although states are not bound to strictly follow the definition of the offence enshrined in Article 2 of the Convention, the United Nations Committee on Enforced Disappearances has consistently looked into the implementation of the obligation to codify enforced disappearance as a separate offence, emphasizing that it is not sufficient for Governments to refer to previously existing criminal offences relating to enforced deprivation of liberty. In this regard, the article analyses the constitutive elements of enforced disappearance as defined in the Convention, which distinguishes it from related offences; illustrates the applicable Korean legal framework, envisaging amendment to the existing legislation or enactment of specific legislation, and then evaluates the relevant provisions of the Act on Punishment of Crimes under Jurisdiction of the International Criminal Court that codifies enforced disappearance as a crime against humanity, reproducing the definition enshrined in Article 7⑵⒤ of the Rome Statute of the International Criminal Court.