5·18 당시 계엄군에 의한 여성 성폭력 사건에 대한 국제형사재판소(ICC) 및 국내법원에의 제소 가능성

Abstract

State-level investigations into state violence that occurred during the May 18 Democratization Movement were conducted several times. So far, the investigation has focused on the truth about excessive suppression, firing and shooting from helicopters by martial law forces. However, the fact-finding of the case of sexual violence against women committed by martial law troops at that time was not properly investigated. In this situation, courageous testimonies of women victims of sexual violence were reported in the media, including the Hankyoreh Newspaper, Yonhap News and SBS Broadcasting in May 2018. As a result, society became aware of the seriousness of the problem.
 The Ministry of National Defense, the National Human Rights Commission of Korea, and the Ministry of Gender Equality and Family launched the “Joint Investigation Team for Sexual Violence by the May 18 Martial Law Forces” in June 2018. As a result of the investigation, a number of violations of women's human rights, such as sexual harassment, were found, including 17 cases of sexual assault by martial law troops at the time. And the May 18 Democratization Movement Truth Committee, which was launched in January 2020, is closely investigating cases of sexual violence against women by martial law forces. According to the May 18 committee's investigation results, at least two of the victims of sexual assault were revealed to be high school girls, and it was found that group sexual assault occurred at least twice.
 In particular, after the results of the investigation by the Joint Investigation Team were announced in 2018, the public demanded that not only the direct perpetrators of sexual violence, but also the commanders of related units be identified and punished criminally. It is expected that the demand for such criminal punishment for those involved will increase even more after the results of the investigation by the May 18 committee are finally announced.
 In this regard, the statute of limitations has been completed at the present time. Therefore, there is no longer a right to prosecute, and criminal punishment is impossible. On the other hand, some have suggested that cases of sexual violence against women by martial law forces can be prosecuted at the International Criminal Court(ICC) because they fall under Article 7 of the Rome Statute of the International Criminal Court. In addition, even if it is difficult to prosecute the ICC, there is a view that the perpetrators of sexual violence can be prosecuted and punished in domestic courts based on the criminality of ‘crime against humanity’, which was an international crime in 1980, based on customary international law.
 Therefore, in this paper, first, in relation to the case of sexual violence against women by martial law troops at the time of the May 18, the results of the Joint Investigation Team's investigation of sexual violence against women by martial law troops were briefly reviewed(Ⅱ). Second, as a result of the investigation by the Joint Investigation Team and the May 18 committee, if the substantive true of the case of sexual violence against women by martial law forces was revealed, and the direct perpetrators and related martial law commanders were identified, the possibility of prosecuting them to the International Criminal Court was reviewed(Ⅲ). Thirdly, if criminal punishment through the International Criminal Court is difficult for the relevant person, the possibility of prosecuting them in a domestic court and punishing them was reviewed(Ⅳ).