해적에 대한 보편주의 관할권 행사와 국내법 규정 - 소말리아 해적사건을 중심으로 -

Abstract

The rescue operation of Sambo Jewelry from Somali pirates on January 22, 2011 and subsequent investigations, indictment and trial for these pirates in Korea have raised many novel issues and questions. One of the issues in this regard is the necessity to introduce a provision in the Korean Criminal Code, which pronounces the 'universal jurisdiction' for the crime of piracy along with other jus cogens crimes under international law. At the moment, the universal jurisdiction is not recognized in the Korean Criminal Code, unlike the other four jurisdictional bases - namely, the territoriality principle, nationality principle, passive nationality principle and the protective principle - that have respective bases in the Criminal Code. Consequently, the Korean Criminal Code cannot apply to piracy conducted by a foreigner against another foreigner outside Korea. This situation would cause unnecessary confusion and tension in the future because Korea does accept and recognize the universal jurisdiction and the universal jurisdiction is the concept that a country can exercise jurisdiction for a certain crime (such as piracy) committed by a foreigner against another foreigner in a foreign country. Furthermore, this tension is further exacerbated when it comes to certain international conventions Korea has even assumed an obligation to exercise universal jurisdiction. Regarding piracy in particular, the universal jurisdiction under the 1982 UNCOLS is permissive as opposed to mandatory. Nonetheless, when Korea chooses to exercise universal jurisdiction under the 1982 UNCLOS, the gap between Korea’s general recognition of universal jurisdiction and the absence of specific provisions in the Criminal Code may put Korea in a dire situation. As to the current Somali pirates’ trial. Korea may apply Article 340 of the Criminal Code (Crime of Maritime Robbery) to punish the Somali pirates because in the current incident the victims include Korean nationals. But the same provision does not apply to the piracy conducted by Somali pirates against foreign crew members in Samho Jewelry due to the absence of universal jurisdiction under the Korean Criminal Code. This is an awkward situation. On the other hand, Korea’s implementing legislation for the 1988 SUA Convention may be utilized for the punishment of piracy committed by foreigners against other foreign nationals outside Korea. However, the implementing legislation is for the punishment of maritime terrorism which is not necessarily the same as piracy in terms of elements of crimes or scopes. Thus, one could argue that this implementing legislation is also unable to deal with all instances of piracy. To remedy the current situation and to introduce an effective system to combat international piracy where Korea has a lot of national interest at stake, the Criminal Code would have to be amended so as to introduce the principle of universal jurisdiction. Subsequently, specific provisions of the Criminal Code setting forth punishment of individual crimes and specific provisions of various individual implementing legislations for international conventions can be amended or fine-tuned in order to establish an effective judicial system to cope with piracy.