국가안보, 법치주의 그리고 ‘대테러 전쟁’

• 영문명: National Security, Rule of Law and the “War on Terror” - An Analysis of Legal Issues Related to the U.S. Guantanamo Detention Facilities -
• 발행기관: 국제법평론회
• 저자명: 황준식(Hwang Jun-shik)
• 간행물 정보: 『국제법평론』제33호, 99~122쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.04.30

영문 초록

This article attempts to identify core legal issues in relation to the complex controversy in the United States surrounding the Guantanamo detention facilities, and to analyze how this controversy has evolved throughout the interactions among the three branches of the government within the constitutional framework under the Bush and the Obama administrations. The core legal issues include: the status of the "enemy combatants" under the law of armed conflict based on the Geneva Conventions; the applicability of habeas corpus to the Guantanamo detainees under the U.S. laws; the question of the so-called "enhanced interrogation techniques," and the use of military commissions to try terrorist suspects. Many of the Bush administration’s legal positions towards the Guantanamo detainees have been struck down by a series of decisions by the U.S. Supreme Court concerning the legal rights of the detainees and the military commissions. In its attempts to remedy the damages caused by what is believed to be the unilateralist approach in foreign affairs and the disregard for international law of the previous administration, the Obama administration has sought to put the fight against terrorism back on the rule of law basis. One of the most significant efforts by the Obama administration in this regard is its decision to close the Guantanamo detention facilities. So far, the administration has not been successful due to the political objections by the Congress. The overall discourse regarding the Guantanamo may provide certain useful insights to the international law scholarship. First, the Obama administration’s stance on the closure of the Guantanamo detention facilities constitutes the most recent prominent answer to a classical question of why states obey international law. Second, the genuine legitimacy or legality of thc use of force cannot be fully explained by the jus ad bellum only; it should also comprise the questions relating to the treatment of the members of the enemy forces. This observation is especially relevant in light of the current trend in which the states have to deal with the individuals associated more with international terrorist organizations than with their countries of origin. Third, the whole Guantanamo experiences renewed the call for deeper understanding of the relations between international human rights law and international humanitarian law systems. Fourth, the U.S. Supreme Court cases over the habeas corpus for the Guantanamo detainees remind us that the sovereignty of a nation is an open, indefinite notion which can be a subject of fruitful research in the field of international law.

목차

Ⅰ. 서론

Ⅱ. 부시 행정부의 ‘대테러 전쟁’과 관타나모 수용소

Ⅲ. 오바마 행정부의 관타나모 수용소 폐쇄 추진

Ⅳ. 결론 : 관타나모 수용소와 국제법

〈Abstract〉

키워드

관타나모 테러리즘 국제인도법 고문 군사위원회 Guantanamo Terrorism International Humanitarian Law Torture Military Commissions