The purpose of this study is to differenciate between crimes against humanity,
state crimes against human rights and individual crimes and to contemplate legal
consequences of the crimes against humanity as most serious state crimes and
the state crimes against human rights as less serious state crimes. Especially the
following issues are to be discussed in chapter 3: retroactive application, statutory
limitation, amnesty, ne bis in idem principal etc.

Regarding the contextual element of crimes against humanity it must be
satisfied that underlying acts such as killing, Imprisonment or other severe
deprivation of physical liberty, torture, etc were committed as part of a
widespread or systematic attack directed against any civilian population.
However, in the case of torture and manipulation which committed at the time
of the totalitarian regime it is hard to say that the contextual element is fulfilled,
although the policy requirement can be considered as fulfilled. Therefore, the
so-called ‘state crimes against human rights’ should be considered as another
category of state crimes. In order to differenciate between crimes against
humanity, state crimes against human rights and individual crimes, the state
crimes against human rights must be defined in the following way: “when the
acts which enlisted in article 9 of the 「ACT ON PUNISHMENT, ETC. OF CRIMES
UNDER JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT」(hereinafter
”Korean implementation Act“) were systemically committed by an institution of
the State, a local self-governing body or their suborgans, and the requirement
‘attack directed against any civilian population’ is not fulfilled.”

In the case of state crimes the acts at issue can be attributed to the State
itself. Therefore, the State must be accountable for the acts in such way that
the State should proper exercise state punishment power regarding perpetrators
of state crimes. That is to say, the priciple banning retroactive punishment and
the principle of statutory limitation must be considered in the case of state crimes
differently in the case of ordinay crimes, ie individual crimes.

In the field of the international criminal law it is recognized that the criminal
nature of the crimes of genocide, crime against of humanity and war crimes
is established in the customary international law from the time of the war crime
trials at Nuremberg. Furthermore, according to article 15 of the 「International
Covenant on Civil and Political Rights」 and article 7 「European Convention on
Human Rights」 nothing shall prejudice the trial and punishment of any person
for any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations. Therefore, several states such as Canada, the UK and Estonia allowed
with written law the retroactive punishment of perpetrators of the crime of
genocide, crime against humanity and war crimes since before the adoption of
the Rome Statute.

After reviewing the legislative solution of Canada and Estonia this study suggests
the following legislative alternatives regarding the issue of retroactive punishment
and statutory limitation.

At first, the title of the Korean implementation Act should be changed as
follows: 「ACT ON PUNISHMENT, ETC. OF CRIMES UNDER JURISDICTION OF
THE INTERNATIONAL CRIMINAL COURT AND STATE CRIMES AGAINST HUMAN
RIGHTS」. That is needed, because also the state crimes against human rights as
less serious state crimes should be regulated in the Act.

Secondly, the following new provision is to be added into the Act.
Article 3-2 (Punishment of perpetrator of genocide etc committed before entry
into force of this Act) Genocide etc which committed before entry into force
of this Act in the territory of the Republic of Korea or against Korean nationals
shall be punished regardless of the time of its commission. However, the sentence
can not exceed that of which allowed according to the law at the time of
commission.

Article 6-2 (Non-Applicability of Statute of Limitations in the case of state
crimes against human rights) state crimes against human rights which means that
acts which enlisted in article 9 of the 「ACT ON PUNISHMENT, ETC. OF CRIMES
UNDER JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT」(hereinafter
”Korean implementation Act“) were systemically committed by an institution of
the State, a local self-governing body or their suborgans and the requirement
‘attack directed against any civilian population’ is not fulfilled, shall not be subject
to the preion for public prosecution provided for in Articles 249 through
253 of the Criminal Procedure Act and Articles 291 through 295 of the Military
Court Act and the preion for execution of judgment of the guilty provided
for in Articles 77 through 80 of the Criminal Act.

Regarding the principle of ne bis in idem, most of cases in which the Korean
courts ruled that the charged conduct was not same with the conduct in the
former case while applying normative consideration related such cases that the
passed sentence in the former case seemed to be not enough in comparison
to the committed crime. In the case of state crimes it can not be decided only
from the fact that the perpetrators of state crimes were founded as guilty of
ordinary crimes whether the perpetrators of state crimes were sufficiently
punished or not. However, it is further to be discussed how much the different
normative elements of both crimes ie state crimes and ordinary crimes(ie invidual
crimes) must be considered in deciding whether the charged conduct is identical
or not.