국제법상 중대한 인권침해로 인한 피해자 배상에 관한 연구 (A Study on Reparations for Victims of Gross Human Rights Violations in International Law)

서지정보

· 발행기관 : 국제법평론회
· 수록지 정보 : 국제법평론 / 58호 / 265 ~ 282페이지
· 저자명 : 송에스더

초록

Recently, the issue of reparations for victims of gross human rights violations, such as victims of forced labor and “comfort women”, has attracted great attention at home and abroad. Given that reparations for victims of gross human rights violations are being discussed in various areas of international law, it is necessary to examine how reparations for victims are dealt with in each area of international law to understand this issue more accurately.
Traditionally, international law focused on relations between states, and individuals were viewed as objects, rather than subjects, of international law. Today, individuals, not just states, are recognized as holders of rights and obligations under international law due to the development of human rights. And this has influenced the laws of state responsibility and diplomatic protection. Human rights violations have been incorporated into state responsibility, and discretion to exercise diplomatic protection is diminishing in cases of jus cogens violations. In the event of gross human rights violations, questions have been raised as to whether it is reasonable to give up individuals' claims through the exercise of diplomatic protection between states.
International human rights law guarantees the right to reparation for victims of human rights violations through various human rights treaties. Further, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted in their final form by the UN General Assembly in 2005, reflects the existing international laws and the progressive development of international law on remedies and reparations for victims of gross human rights violations.
International humanitarian law has traditionally been recognized as a law that applies between states, but relevant norms contain provisions that guarantee the primary rights of individuals. In addition, Article 3 of the Hague Convention IV of 1907 and Article 91 of the Additional Protocol I of the Geneva Conventions only stipulate the responsible state's obligation to compensate, without any mention of the obligee. Traditionally, these obligations are interpreted as obligations towards injured states, but based on today’s integrative interpretation of international human rights law and international humanitarian law, it is reasonable to interpret them as obligations towards individual victims as well.
International criminal law also now includes provisions on reparations for individual victims due to the development of human rights. Although the ICTY and the ICTR did not deal much with reparations for victims, the ICC has established a comprehensive reparation system that allows victims' participation in the process. The ICC's reparation system includes reparation orders by the court and victim assistance by the Trust Fund for Victims, which reinforce each other. However, the ICC’s reparation system faces several operational challenges. Further, since individual perpetrators are responsible for reparations in international criminal law, that responsibility should be supplemented by states to protect victims from the perpetrators' insolvency.
Under the principle of exhaustion of domestic remedies, international law requires a state to first provide reparations to victims through a domestic legal system. However, it is not easy for individual victims to receive reparations through domestic judicial systems due to obstacles including jurisdiction, sovereign immunity, and the statute of limitations. In addition, when there are large numbers of victims, it may be difficult for all victims to receive judicial reparation through trial. Therefore, international human rights law also encourages states to implement domestic administrative reparation programs to effectively assist victims in these cases. It is suggested that judicial reparation and administrative reparation can complement each other.
In summary, it is now reasonable to recognize a victim's right to reparation in cases of gross human rights violations under international law. These rights are supposed to be realized through domestic legal systems, but if this is not possible due to various procedural obstacles, reparations through international law must be provided. Given that the protection of basic human rights is the core interest of the international community, it is necessary to enhance the protection of a victim’s right to reparation in the international legal system. It is difficult to secure reparations for victims of gross human rights violations through any one area of ​​international law. Thus, it is necessary to develop and strengthen a multi-layered reparation system and establish effective implementation mechanisms through interactions between various areas of international law.

영어초록

Recently, the issue of reparations for victims of gross human rights violations, such as victims of forced labor and “comfort women”, has attracted great attention at home and abroad. Given that reparations for victims of gross human rights violations are being discussed in various areas of international law, it is necessary to examine how reparations for victims are dealt with in each area of international law to understand this issue more accurately.
Traditionally, international law focused on relations between states, and individuals were viewed as objects, rather than subjects, of international law. Today, individuals, not just states, are recognized as holders of rights and obligations under international law due to the development of human rights. And this has influenced the laws of state responsibility and diplomatic protection. Human rights violations have been incorporated into state responsibility, and discretion to exercise diplomatic protection is diminishing in cases of jus cogens violations. In the event of gross human rights violations, questions have been raised as to whether it is reasonable to give up individuals' claims through the exercise of diplomatic protection between states.
International human rights law guarantees the right to reparation for victims of human rights violations through various human rights treaties. Further, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted in their final form by the UN General Assembly in 2005, reflects the existing international laws and the progressive development of international law on remedies and reparations for victims of gross human rights violations.
International humanitarian law has traditionally been recognized as a law that applies between states, but relevant norms contain provisions that guarantee the primary rights of individuals. In addition, Article 3 of the Hague Convention IV of 1907 and Article 91 of the Additional Protocol I of the Geneva Conventions only stipulate the responsible state's obligation to compensate, without any mention of the obligee. Traditionally, these obligations are interpreted as obligations towards injured states, but based on today’s integrative interpretation of international human rights law and international humanitarian law, it is reasonable to interpret them as obligations towards individual victims as well.
International criminal law also now includes provisions on reparations for individual victims due to the development of human rights. Although the ICTY and the ICTR did not deal much with reparations for victims, the ICC has established a comprehensive reparation system that allows victims' participation in the process. The ICC's reparation system includes reparation orders by the court and victim assistance by the Trust Fund for Victims, which reinforce each other. However, the ICC’s reparation system faces several operational challenges. Further, since individual perpetrators are responsible for reparations in international criminal law, that responsibility should be supplemented by states to protect victims from the perpetrators' insolvency.
Under the principle of exhaustion of domestic remedies, international law requires a state to first provide reparations to victims through a domestic legal system. However, it is not easy for individual victims to receive reparations through domestic judicial systems due to obstacles including jurisdiction, sovereign immunity, and the statute of limitations. In addition, when there are large numbers of victims, it may be difficult for all victims to receive judicial reparation through trial. Therefore, international human rights law also encourages states to implement domestic administrative reparation programs to effectively assist victims in these cases. It is suggested that judicial reparation and administrative reparation can complement each other.
In summary, it is now reasonable to recognize a victim's right to reparation in cases of gross human rights violations under international law. These rights are supposed to be realized through domestic legal systems, but if this is not possible due to various procedural obstacles, reparations through international law must be provided. Given that the protection of basic human rights is the core interest of the international community, it is necessary to enhance the protection of a victim’s right to reparation in the international legal system. It is difficult to secure reparations for victims of gross human rights violations through any one area of ​​international law. Thus, it is necessary to develop and strengthen a multi-layered reparation system and establish effective implementation mechanisms through interactions between various areas of international law.

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