The History, Current Situation, and Challenge in the Implementation of
D. IHL National Committee
The Governmental IHL National Committee Meetings have been held once a year since 2002, whereby officials from ministries such as foreign affairs, defense, education, culture and sports, IHL institute of the Red Cross, and academics participate to discuss the issues relating to accession and implementation of IHL and legislation of domestic acts.14
14. The Governmental IHL National Committee was established pursuant to the Ministry of Foreign Affairs regulation no. 159 in 2010 to enhance the understanding of the public on IHL and provide advice to the minister on its domestic implementation.
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IV. Challenge and Task Concerning Accession to IHL Treaties
The most typical IHL not yet acceded to by the ROK includes the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (the so-called
“Ottawa Convention”) and the Convention on Cluster Munitions (CCM).
The issue of landmines had been partly provided for in the CCW, but by the strength of public opinion toward inhumane nature of landmines, a comprehensive prohibition on the use of landmines was further created by the Anti-Personnel Mines Convention. The ROK has not acceded to the Convention in consideration of the effectiveness of mines around the de-militarized zone (DMZ) in deterring infiltration and the tense military confrontation with North Korea.15 The ROK government is of the opinion that using landmines primarily around the DMZ causes little to no harm to civilians. But in fact, accidents that result in bodily harm occur occasionally due to landmines, from which its defense effectiveness can be doubted.
Conscious of international pressure, the government has been demining over the past decades. Newly-planted landmines of M4 plastic type are easier to detect.
Cluster munitions have been denounced for their inhumane nature causing widespread human suffering. The criticism led to the conclusion of CCM. It is unlikely for the ROK to accede to the CCM in its military confrontation with North Korea. In this regard, the ROK military needs
15. The ROK delegation abstained from the resolution of the UN General Assembly in October 2007, urging the implementation of the Ottawa Convention and explained its position as follows: “... the ROK fully sympathizes with the spirit and objectives of the Ottawa Convention. ... However, due to the unique security situation on the Korean peninsula, we are committed to give priority to our security concerns, and unable to accede to the Convention at this point.”
to strengthen the education of its soldiers, focusing upon the military necessity of the cluster munitions.
Among CCW supplementary protocols, the ROK has not acceded to protocol III (incendiary weapons), and protocol IV (blinding laser weapons) in consideration of possible situations concerning security breaches on the Korean peninsula. The ROK is well-advised to give serious consideration to their accession.
It seems that the ROK government has not joined the Convention for the Protection of Cultural Property in the Event of Armed Conflicts and its Protocol in fear of limitations regarding military operations. In considering that the act on jurisdiction of ICC, Article 13, stipulates the act of attacking historic relics as war crime, and the First Additional Protocol provides for the protection of cultural property, the ROK government has been urged to also accede to the treaty.
The Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted by the United Nations on July 7, 2017, and came into force on January 22, 2021. The treaty includes a comprehensive set of prohibitions on participating in any nuclear weapon activities. These include undertakings against the development, testing, production, acquirement, possession, stockpiling, use of, or threatening the use of nuclear weapons. The Treaty also prohibits the deployment of nuclear weapons on national territory and the provision of assistance to any state in the conduct of prohibited activities. The ROK, under the nuclear umbrella of the U.S., has not joined the TPNW.
V. Conclusion
It seems that public awareness of IHL in the ROK is not considered to be very high despite accession to most of IHL treaties. Some even doubt and raise the necessity of IHL in warfare. With the nation having gone through and suffered from war, it goes without saying that it is necessary to raise the level of understanding and compliance of IHL.
More support and attention should be provided to the activities of the Korean Red Cross IHL committee and IHL Research Institute. Additional IHL education time needs to be allocated in the military to enhance the understanding of the importance of IHL in actual implementation in warfare.
It is not sufficient for the government to only convene the national IHL committee meeting once a year. Serious consideration should be given to the accession of some treaties such as the Convention on Protection of Cultural Property in the Event of War and CCW Protocols III & IV.
Without legislative actions, treaties to which the ROK has acceded take effect domestically in pursuance of the constitution. A desirable change would be to make domestic implementing acts for the practical enforcement of the treaty, as the treaty and domestic implementing act are treated differently by the court of law and other domestic governmental agencies.
In this regard, some of the other IHL treaties need to be incorporated into domestic implementing legislation to make sure that treaties are to be implemented in the same manner that domestic acts are applied and implemented.
Above all, it is necessary to reduce and even get rid of any sarcasm and doubt about the effectiveness of IHL in armed conflicts. The object of war is in subjugating and winning by whatever means obtainable. In the midst of warfare, the spirit of and the letters of IHL tend to be disregarded
and not complied with. This type of violation easily escalates into the total neglect of IHL. Such behaviour and mindset can be constrained through education about the importance of and the necessity for the Geneva Conventions and other IHL treaties.
Geneva Conventions and other existing IHL system have been challenged by the emergence of new, unpredictable situations arising from long-drawn civil wars, the increase of asymmetric warfare, non-state armed groups, and the ambiguity of war zones. Specific situations of modern warfare that are not exactly regulated by IHL makes the compliance and implementation of IHL more difficult.
The gap between current IHL treaties and newly-emerging situations could be filled by the continuous effort toward IHL treaty-making and resorting to customary law. Besides these legal methods, substantive education on and dissemination of IHL, complemented by the implementation through domestic legislation of treaties and effective operation of punishment for breach of treaties, etc., are required.