From the ICC website (emphasis being, as always, mine):
ICC Prosecutor: alleged war crimes in the territory of the Republic of Korea under preliminary examination
The Office of the Prosecutor has received communications alleging that North Korean forces committed war crimes in the territory of the Republic of Korea. The Prosecutor of the ICC, Luis Moreno-Ocampo, confirmed that the Office has opened a preliminary examination to evaluate if some incidents constitute war crimes under the jurisdiction of the Court. They are:
- the shelling of Yeonpyeong Island on the 23 November 2010 which resulted in the killing of South Korean marines and civilians and the injury of many others; and
- the sinking of a South Korean warship, the Cheonan, hit by a torpedo allegedly fired from a North Korean submarine on 26 March 2010, which resulted in the death of 46 persons.
The Republic of Korea has been a State Party to the Rome Statute since 13 November 2002. As such, the ICC has jurisdiction over war crimes, crimes against humanity or genocide possibly committed on the territory of the Republic of Korea or by its nationals since 1st February 2003, date on which the Statute entered into force in the Republic of Korea.
This, in combination with the recent Wikileaks regarding China’s readiness to drop the North Korean regime could make for an interesting situation to follow in Korea. The ICC as an instrument of justice, contributing to the reunification of the two Koreas?
Let’s not quite go beyond ourselves yet, but hey, why not?
UPDATE: Kevin Jon Heller over at Opinio Juris has also taken note of the news, and asked the opposite question: “Why?” This logically answering my “Why not?” KJH makes the case that the recent events in South Korea – the sinking of a South Korean warship, the Cheonan, and the shelling of Yeonpyeong Island either do not constitute a war crime (for the former) or have not reached the seriousness threshold for an ICC investigation (the latter). Therefore, he asks, why would the OTP open a preliminary examination?
My best guess is that Luis-Moreno Ocampo, the ICC Prosecutor, is following what has appeared to be his policy of opening preliminary examinations in States parties prone to forms of political violence in order to deter any further crimes from being committed. In that regard, Côte d’Ivoire and Guinea come to mind, with the mixed results we now know. We’ll have to see how it works – if it works at all – in the Korean peninsula.
Aside from that, your guess is as good as mine.
UPDATE II: First of all, more comments on the OTP’s press release. You can read Professor Bill Schabas’ here and Dov Jacobs’ here. Second reason behind the update is that I had an interesting conversation with Mark Kersten on Facebook (yes, I talk about international law even on Facebook). Without quoting the entire conversation, the issue that came up was whether the ICC could prosecute members of the North Korean regime for what Mark has called “structural” crimes against humanity. Quoting Mark:
“(…) another issue which is structural violence and whether the ICC can try individuals for structural crimes against humanity. it’s an important debate to be had. We privilege conceptions of violence where people are killed directly but a lot of violence occurs structurally, within a society – malnourishment, lack of healthcare, housing etc. I agree that DPRK has violated the rights of its own people, but it has done so structurally – can the ICC try that? I’m not sure. If they ever put al-Bashir on the dock, one of the most fascinating legal questions will concern “genocide by attrition” which is basically indirect, structural genocide.”
To clarify how we came to this point, I should explain that – even though it is not clear in my original post – I was thinking of the ICC as a tool for justice to try North Korean leaders for crimes against humanity committed against their own people should the Koreas be reunited in the future under South Korean rule.
I am convinced by KJH’s arguments that both the sinking of the warship Cheonan and the shelling of Yeonpyeong Island do not suffice to open an investigation. But I thought that the ICC looking at the Koreas, put in conjuncture with Wikileaks revelation that China was not a strong a supporter of North Korea than we might have thought, offered an interesting insight and food for thought regarding the ICC’s potential involvement in an eventual reunited Korea.
Which led to Mark’s questions: can the ICC try individuals for structural crimes against humanity? Perhaps, for the sake of the debate, Mark could clarify how he defines “structural” crimes, although on the other hand I think that’s pretty self-explanatory. But in any case, the question is worth consideration. I honestly do not know.