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.