무력충돌법상 민간인의 보호 (On the Protection of Civilians in the Law of Armed Conflicts)

서지정보

· 발행기관 : 강원대학교 비교법학연구소
· 수록지 정보 : 강원법학 / 32권 / 385 ~ 439페이지
· 저자명 : 유재형

초록

Belligerent law, which is relevant to jus in bello, has begun to be referred to as ‘international humanitarian law’ since World War II. As such, the importance of protecting civilians in humanitarian view is brought to the fore bearing fruit due to the two World Wars that caused huge damage to civilians, especially World War II. Thus, Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 and 1977 Geneva Protocol Ⅰ, Ⅱ Additional to the Geneva Conventions have multiple rules to protect civilians. In short, by stipulating the protection of civilians that has not been the direct object of rules, international humanitarian law expanded the category of its protected object and presented 'one opportunity to change the way of thinking from law of wars to humanitarian law.' However, despite the fact that all rules protecting civilians through the process of self-reflection of World War were enacted in the form of multilateral treaty, the danger is extremely high for civilians to be victims of armed conflicts.
For example, the number of deaths caused by various armed conflicts that occurred after 1946 is about 2 thousand, and it is analyzed that 90% of them are civilians. Therefore, it is still a huge project to protect civilians from not only armed conflicts of today but also international terrorism occurring every day all over the world.
Thus, this paper aims to examine the main issues related to civilians protection in terms of armed conflict law in the following order. (1) Introduce the history of civilians protection of armed conflicts law; (2) how civilians are defined and what protection is stipulated for them; (3) what problems there are related to civilians protection; and (4) deduce from conclusion what the essence of the issue and solutions are.
Under the modern international humanitarian law, it is absolutely forbidden to target civilians as hit list, but it is permitted that civilians receive incidental damage from the attack of military objectives in accordance with the principle of proportion. Therefore, the fact that the ambiguity of the definition of ‘military objectives' and the proportion of incidental loss of civilians and military necessity is judged by the soldiers of attacker is extremely illogical in the view of actual effects. Primarily, international humanitarian law is established to balance military necessity and the principle of humanity, so it can also be an immanent issue. Allowing armed attack (war), which is killing and destroying, and accepting humanitarian thinking based on human's dignity are in mutual contradiction; thus, in order to make the two coexist, it is indispensable to divide combatant, civilians, and military and civilian objects. However, as mentioned above, it is difficult to distinguish these in modern conflict, so it is feared that the atmosphere of prioritizing military objects that appeared in World War II is becoming more intense. Therefore, it is necessary to make an effort to minimize the damage of civilians by giving new understanding of the thoroughness of life respect as the common idea of the global society, and set the goal to eradicate the use of weapons.
But even if humanitarian concept is perceived as objective norms distinct from the nation's mutual rights and obligations, such legal structure in the domestic law is accompanied by centralism; but there occurs contradiction between the reciprocity structure of the traditional international law and new standard system. Especially in the law of armed conflicts, even if there is demand to protect certain groups from humanitarian view, it lacks appropriate procedure to actualize it because it is different from human rights standard. This can be found in reality where an individual damaged with the violation of armed conflicts law is not approved with the right to claim help.
Actual rights and obligation structure of norms and means of transition responding to specific benefits supporting it is to secure the application of law, so actual norms unaccompanied by transition rules or procedural guarantee are invalid. For example, to control reprisals in time of war, it is necessary to secure the system to ensure transition of armed conflicts law or specifically state the requirements of war restoration.
In conclusion, to enhance effectiveness of protecting civilians in armed conflicts law, the contents of rules of conduct for nations at war to obey must be expanded, and also improve the procedure of ensuring transition, which is an ordinary conclusion following the theory of principles. Also, the best request to ensure transition of armed conflicts law that lack compulsory system is the establishment of strong will of the relevant person to obey, and without such will, effectiveness is not to be expected.

영어초록

Belligerent law, which is relevant to jus in bello, has begun to be referred to as ‘international humanitarian law’ since World War II. As such, the importance of protecting civilians in humanitarian view is brought to the fore bearing fruit due to the two World Wars that caused huge damage to civilians, especially World War II. Thus, Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 and 1977 Geneva Protocol Ⅰ, Ⅱ Additional to the Geneva Conventions have multiple rules to protect civilians. In short, by stipulating the protection of civilians that has not been the direct object of rules, international humanitarian law expanded the category of its protected object and presented 'one opportunity to change the way of thinking from law of wars to humanitarian law.' However, despite the fact that all rules protecting civilians through the process of self-reflection of World War were enacted in the form of multilateral treaty, the danger is extremely high for civilians to be victims of armed conflicts.
For example, the number of deaths caused by various armed conflicts that occurred after 1946 is about 2 thousand, and it is analyzed that 90% of them are civilians. Therefore, it is still a huge project to protect civilians from not only armed conflicts of today but also international terrorism occurring every day all over the world.
Thus, this paper aims to examine the main issues related to civilians protection in terms of armed conflict law in the following order. (1) Introduce the history of civilians protection of armed conflicts law; (2) how civilians are defined and what protection is stipulated for them; (3) what problems there are related to civilians protection; and (4) deduce from conclusion what the essence of the issue and solutions are.
Under the modern international humanitarian law, it is absolutely forbidden to target civilians as hit list, but it is permitted that civilians receive incidental damage from the attack of military objectives in accordance with the principle of proportion. Therefore, the fact that the ambiguity of the definition of ‘military objectives' and the proportion of incidental loss of civilians and military necessity is judged by the soldiers of attacker is extremely illogical in the view of actual effects. Primarily, international humanitarian law is established to balance military necessity and the principle of humanity, so it can also be an immanent issue. Allowing armed attack (war), which is killing and destroying, and accepting humanitarian thinking based on human's dignity are in mutual contradiction; thus, in order to make the two coexist, it is indispensable to divide combatant, civilians, and military and civilian objects. However, as mentioned above, it is difficult to distinguish these in modern conflict, so it is feared that the atmosphere of prioritizing military objects that appeared in World War II is becoming more intense. Therefore, it is necessary to make an effort to minimize the damage of civilians by giving new understanding of the thoroughness of life respect as the common idea of the global society, and set the goal to eradicate the use of weapons.
But even if humanitarian concept is perceived as objective norms distinct from the nation's mutual rights and obligations, such legal structure in the domestic law is accompanied by centralism; but there occurs contradiction between the reciprocity structure of the traditional international law and new standard system. Especially in the law of armed conflicts, even if there is demand to protect certain groups from humanitarian view, it lacks appropriate procedure to actualize it because it is different from human rights standard. This can be found in reality where an individual damaged with the violation of armed conflicts law is not approved with the right to claim help.
Actual rights and obligation structure of norms and means of transition responding to specific benefits supporting it is to secure the application of law, so actual norms unaccompanied by transition rules or procedural guarantee are invalid. For example, to control reprisals in time of war, it is necessary to secure the system to ensure transition of armed conflicts law or specifically state the requirements of war restoration.
In conclusion, to enhance effectiveness of protecting civilians in armed conflicts law, the contents of rules of conduct for nations at war to obey must be expanded, and also improve the procedure of ensuring transition, which is an ordinary conclusion following the theory of principles. Also, the best request to ensure transition of armed conflicts law that lack compulsory system is the establishment of strong will of the relevant person to obey, and without such will, effectiveness is not to be expected.

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