International Justice

CJ354 Endicott College

ICC Preliminary Examination of North Korea

On December 6, 2010 the ICC initiated a “preliminary examination” to determine whether the North Korean military committed war crimes. The Court is focusing on two incidents: the shelling of Yeonpyeong Island on November 23, 2010, and the sinking of the Cheonan, a South Korean Coast Guard corvette, on March 26, 2010. According to a “Report on Preliminary Examination Activities” put out by the Prosecutor’s office in December 2011, the attack on Yeonpyeong Island resulted in 4 deaths (2 military, 2 civilian), 66 injuries (50 civilians, 16 military) and “the destruction of military and civilian facilities on a large scale.” The sinking of the Cheonan killed 46 South Korean sailors. The ICC has jurisdiction to initiate an investigation because South Korea is a party to the ICC.

The case is significant for a number of reasons. This is the first conflict between two state militaries that the Court has investigated. As a result, if the Office of the Prosecutor chooses to proceed, it would be under its mandate to prosecute perpetrators of “aggressive war.” (For this reason, the Court would not be able to proceed until 2017.) Also, much has been made of the Court’s decision to publically announce its preliminary investigation, even though it is under no obligation to do so. This has been interpreted in a variety of ways. Some argue that the ICC is trying to prod North and South Korea to resolve the issue themselves. (The situation has been compared to Colombia, where the Prosecutor used the threat of ICC intervention to spur the Colombian government to act.) If this is the driving force behind the Court’s actions, it reveals a serious lack of understanding about the issues dividing the Korean Peninsula: there is simply no way that North and South would agree to undertake any kind of investigation. Others have argued—more convincingly, in my view—that the ICC is sending a message that it will vigorously defend all its member states, and that non-member states should ratify the Rome Statute because the ICC can serve as an additional line of defense against foreign aggression.

This case exemplifies the problems that can arise when the Court wades into complex political conflicts, including the possible tradeoff between peace and justice. If the ICC were to issue an arrest warrant against a North Korean official, there is no telling how the North would respond. It would almost certainly break off any negotiations or dialogue that happened to be taking place at that moment. It could launch a retaliatory attack on South Korea. It could test a nuclear device. However the North responds, an ICC arrest warrant would give the Kim regime yet another bargaining chip that it would use to gain the upper hand in negotiations with the west on issues ranging from its nuclear program to food aid and disaster relief. 

One could argue that the ICC should not be concerned with geopolitics: in the long-run, international justice would best be served by investigating and prosecuting war crimes, irrespective of the political climate in which they take place. I would propose another way of looking at this particular situation. Anywhere between 200,000 and 400,000 North Koreans are currently serving in prison and forced labor camps, where they are subjected to torture and living conditions bad enough to constitute torture themselves. Some of these people are guilty of no crime; North Korean policy is to imprison three generations of the family of anyone convicted of a serious crime. There is, of course, no judicial process. The government has also used starvation and malnutrition as tools to keep segments of the population deemed disloyal in check. The list of abuses continues.

An arrest warrant from the ICC would ultimately empower a regime that commits crimes against humanity against its own population on a massive scale, and would further convince its leadership that it cannot normalize relations with the west. Finally, there is not even a remote possibility that a North Korean will appear in The Hague. An arrest warrant would therefore do infinitely more harm than good. Hopefully there will come a day when leaders of the Kim regime stand accused of crimes against humanity and war crimes in an ICC courtroom. Unfortunately, the world may have to wait a little bit longer.

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4 responses to “ICC Preliminary Examination of North Korea

  1. dpu26 November 4, 2012 at 7:58 pm

    I think j.a. points out an important conflict regarding ICC’s possible decisions, that is, issuing an arrest warrant would simply result in a more h3. ostile North Korea, possible retaliatory measures, and extreme unlikelihood of the North Korea official actually arriving in the Hague. However, in spite of this, I would still support ICC actually issuing an arrest warrant for the following reason.

    1. In view of the North Korean ideology of being the “child race,” it is extremely unlikely that the West can ever successfully normalize relations with North Korea. (There’s an interesting book on this ideology called The Cleanest Race: How North Koreans See Themselves and Why It Matters). As such, I argue any further tension brought about by the arrest warrant could possibly aggravate North Korea, but it would not be the reason North Korea cannot normalize relations with the West, which is impossible in the first place.

    2. On a matter of justice, North Korea clearly took aggressive military action against South Korea, a member state of ICC. If ICC does not respond, I think this could be viewed as weakness on ICC’s part, particularly in the eyes of rogue states like North Korea. I would argue not taking action would actually empower the North Korean regime more so than issuing the arrest warrant.

    3. Lastly, as j.a. point out, perhaps the world would have to wait much longer before the North Korean regime is brought to justice on its many incidences of crimes against humanity. However, I would see an arrest warrant issued by the ICC as an indication that it would no longer turn a blind eye to the plethora of violations engaged in by the North Korean regime. I think ICC should issue such a warrant as a declaration to the international community that it does intend to stand by its mandates and would not let a member state be aggressively warred against by a rogue state.

  2. seohchoi November 4, 2012 at 9:26 pm

    My thoughts are in line with the claim that the ICC would be better off to avoid becoming entangled with extremely complicated geopolitics. While the main function of the ICC is to prosecute those responsible for crimes of war crimes, genocide and crimes against humanity, it also has to remain relatively (I use this term because I do not believe the ICC can be completely unentangled from international politics) independent from elements of politics. For the ICC to start investigating the Yeonpyeong Island and Cheonan cases, the Court would inevitably become heavily involved not only in the Korean Peninsula politics but also in the East Asian politics. The ICC would have to face many problems/questions that arise from undertaking this investigation.

    The investigation of the ICC into these two cases could be seen as an act of undermining the sovereignty of the governments of South Korea and North Korea. There simply is not enough evidence to really show that these two states do not have their own functioning judicial system. South Korea’s judicial process is perfectly functional, and there is not enough information known regarding the judicial system in North Korea. Because the problem is not so much that each state is incapable of carrying out its own judicial system, but that there is a lack of higher authority to judge the right or wrong between these states. The ICC’s involvement in these cases is not based on the principle of complementarity, and would put the role of the ICC in a new light. Should the ICC be able to intervene between the international affairs of states? Would its given jurisdiction give the Court enough power to carry out such a role?

    The ICC becoming involved with the situation can upset allying states that have been intervening between South Korean and North Korea for reconciliation. The United States and China have been working for months to bring about resolution and peace talks in the Korean Peninsula over these cases. The United States, an effective ally of South Korea, has condemned North Korea for its actions during the sinking of Cheonan. China, in collective efforts, also condemned North Korea for its actions, and has been pressuring it to make peace in the Korena Peninsula. These allying states may find the investigation of the ICC in the Korean Peninsula as a dismissal of their efforts for peace in the region. Also, the allies, who have been against the global jurisdiction of the ICC, may fear the involvement of the Court in the Korean Peninsula, and may turn against it.

    Whether the ICC’s involvement in the two cases of the Koreas will be beneficial for maintaining stability and peace in the region is unclear. North Korea is already extremely wary of the US presence in South Korea. The further involvement of the ICC may stir the despotic country to impose future attacks in South Korea. Furthermore, North Korea recently threatened South Korea for future attacks in case flyers from South Korea criticizing the North Korean regime may be found again. When the situation in these two states is so fragile, and can easily turn into a war, would the investigation of these issues by the ICC worsen the tension between the Koreas? The ICC should very carefully reflect on these questions before making further move into the Korean Peninsula.

  3. Brian Wilkinson November 5, 2012 at 2:47 pm

    This is an intriguing development. I’d be interested to see how the investigation of “aggressive war” pans out, although it seems somewhat flawed to have to wait five years to prosecute the crime.

    I think the argument that the ICC is investigating for political reasons is vastly overstated. I find it much more likely that the court announced its investigation to show the progress they’re making as a court, and their desire to prosecute aggressive war rather than an effort to bring parties to the negotiating table. I also find it hard to imagine the ICC is attempting to convince states to ratify the statute as a means of protection – the ICC’s charter charges it with prosecuting the most serious crimes; that extends to all countries and all serious criminal acts.

    Certainly no North Korean leaders would appear in The Hague, but that shouldn’t affect the desire to punish wrongdoing. There should be no fear of North Korean reprisals – the regime has consistently abused peace talks and has shown no effort to reform its punishment tactics or roll back its nuclear program. It insists on testing weapons that threaten its neighbors and abuses its citizens. Furthermore, North Korea is too smart to launch an attack on South Korea, knowing the repercussions from the superior South Korean military and their US allies would result in the demise of the North Korean Juche regime. There is little chance an ICC arrest warrant makes any of this worse.

    I fail to see how an arrest warrant empowers the regime –a removal of the warrant is the smallest bargaining chip the regime would have, and they already have no hope of normalized Western relationships. While the regime is almost certainly guilty of crimes against humanity, that’s a separate issue that should be investigated separately, and should have no bearing on the investigation of aggressive war.

  4. dhsong November 6, 2012 at 12:01 am

    When I first read this post and the subsequent comments, I thought ICC should never play a role in the relationship between North Korea and South Korea and what happened in those two incidents, as someone who has been in the Korean Army and feared anything that would provoke the country. Shortly after the bombardment of Yeonpyoung Island, I had to evacuate and stay underground for hours when North Korea threatened South Korea with retaliatory attacks for lighting this Christmas tree of some significance that can be seen from North Korea.

    I think North Korea is being extremely smart for walking the fine line between not provoking any significant, real armed conflicts and not losing its credibility of threat at the same time to preserve its regime from the outside forces. And ICC was right for not taking further steps in the situation, as the relationship between North Korea and South Korea, along with their allies, is so delicate. If ICC were to investigate the incidents or issue arrest warrants for a North Korean national for war crimes, as j.a., dpu26, and seohchoi said, it could cause more instability in the area, although we can’t be sure how and to what extent. I just don’t want to see North Korea start doing flips on that fine line.

    I think charges of war crimes and crimes of aggression are inherently political and are very likely to cause negative/violent reactions. However, those who commit those crimes should not go unpunished. Sudanese president al-Bashir and former Bosnian Serb’s president Radovan Karadžić’s have been charged with war crimes in the ICC and ICTY, respectively, and rightly so. The key distinction between al-Bashir and Karadžić’s case and North Korea’s case is that there is no actual active armed conflict in the Korean Peninsula at the moment. Once war is waged, it could be argued that charges against these crimes should be made even if it may create more temporary violence or make peace process harder. In a delicate situation like North Korea, it becomes much harder to make that decision, since it could result in a conflict. However, it also makes me think…what would be my reaction if I were the one directly influenced by the al-Bashir or Karadžić’s retaliatory measures?

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