국제형사재판소의 관할대상 범죄로서 침략범죄의 준국가 무력충돌에의 적용 가능성

The Applicability of the Crime of Aggression to Armed Conflicts Involving Quasi-States

The crime of aggression, as defined in the Rome Statute of the International Criminal Court, is only applicable to inter-state armed conflicts. There is, however, a gray area when an armed conflict erupts in the territory of a recognized state and initially looks like civil war, but has international elements such as the involvement of a quasi-state whose status and rights are disputed in international law. Resolving the issue of whether the crime of aggression is applicable to armed conflicts involving quasi-states is important because (1) there are many quasi-states throughout Europe, Asia, and Africa; and (2) quasi-states are a major source of war due to the inherent nature of their militarized society and the long-term tensions that exist between a quasi-state, its mother state, and its external patron state. The applicability of the crime of aggression to quasi-states depends on the interpretation of the meaning of “state” in the context of aggression. The meaning of “state” reflects a contradiction, because although state-like entities exist regardless of whether they receive recognition, recognition performs a function in determining which entities are qualified to join institutional clubs. Like recognized states, unrecognized quasi-states have been both perpetrators and victims of aggression. Yet, because they lack recognition, they have neither been protected nor prosecuted under the crime of aggression. This dissertation offers a suggestion for how “state” should be defined in the crime of aggression, and consequently, how the crime of aggression should be applied to armed conflicts involving quasi-states.