The ICC Setting Its Eyes on Korea?

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:

  1. 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
  2. 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.

Any thoughts?

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  1. #1 by Dov jacobs on 7 December 2010 - 15:49

    Hi Xavier, as you can imagine, I’m not too convinced by this “political ambition” of the OTP. I think it should stick to what it knows (or as is often the case with this Prosecutor, what it should know…) and focus on the success of its judicial activities…

    • #2 by Xavier Rauscher on 7 December 2010 - 15:52

      Not too convinced either to be honest, especially considering the lack of results in other areas.

      I’m going to update the post in a few minutes to add a bit more, things you might be able to shed light on and/or comment.

  2. #3 by Mark Kersten on 7 December 2010 - 17:14

    Just to clarify what is meant by the term “structural crimes against humanity” as I think of it. It’s a combination of crimes against humanity and structural violence. Structural violence is the social realities and structures that prevent people from achieving their basic needs. So a society which denies access of its citizens to basic needs such as healthcare or clean water is a ‘structually violent’ society. The case is often made that the hierarchy of society creates socially unjust situations for those at the bottom of the social hierarchy. Those social injustices are structural violence.

    I’m not a legal expert, but I think there is a case, or at least a discussion, to be made that combines this concept of structural violence with crimes against humanity. The case would be made that social injustices/structural violence that are/is “particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings” would be a “structural crime against humanity”.

    The reason why I believe this is worthwhile to think about is that some states – like North Korea and Burma – commit structural injustices against their people on a massive, systematic and pervasive way. However, international criminal law, it seems to me, only deals with direct forms of violence – physically harming individuals or groups of individuals. A full sense and appreciation of justice would include both direct and structural forms of violence and seek to prevent their occurrence and prosecute those responsible.

    • #4 by Dov jacobs on 9 December 2010 - 16:06

      Hello again, I meant to comment sooner, but got carried away in other stuff.

      Some brief remarks. From a legal point of view, and without going into the “structural violence” debate at this point, I see some links with the existing definition of CaH. There is a provision on extermination which takes into account creating generally poor conditions: “”Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;” (article 7(2)(b)). The provision on persecution can also be helpful: “”Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’ (article 7(2)(g)), because it concerns the violation of fundamental rights. The problem with extermination is that it requires an intent to kill, which would not necesarily be present in your example. The problem with persecution is that a specific group must be targetted, which would not necessarily be the case either.

      I would however have two additional more conceptual remarks. The first one relates to the interaction between international criminal law and human rights law. They are often used interchangeably, but I wonder if they do not have specific areas of action, your example falling within the second one (to the extent that you cannot establish a specific intent to kill).

      The second point is interdisciplinary and I’ve made it both on my blog and in a paper I wrote for the ISA conference last February. What is the limits of law? and what is the limits of criminal law in particular? Mark, you point out that “international criminal law, it seems to me, only deals with direct forms of violence – physically harming individuals or groups of individuals. A full sense and appreciation of justice would include both direct and structural forms of violence and seek to prevent their occurrence and prosecute those responsible”. You therefore seem to be suggesting that criminal law should be changed to take into account more sociological dimensions. But I don’t think it can. It is neither its form or structure. CL focuses on individual criminal responsibility and cannot accomodate more complex sociological (or “structural” as you call them) considerations. I agree with you that these are fundamental issues that need to be considered in the broader search for justice, but it is the wrong avenue to try and change ICL. It is the same in national law for any type of crime. The result will be lawyers doing bad sociology in an inadequate procedural setting, and sociologists doing bad law. In my paper, I took the example of the “genocide debate”, and suggested that sociologists should stop trying to change the legal definition of the crime, but develop their own sociological definition, because “structurally”, law cannot be the answer to everything. I don’t know if I’m being clear here, but the paper is on SSRN. Any comments welcome of course!

  3. #5 by Mark Kersten on 13 December 2010 - 11:07

    Thanks for your comments Dov.

    I have read numerous posts on your blog and will check out the article when I have a moment. Right now, I’ve just begun my own PhD into the peace-justice debate with case studies of Darfur and northern Uganda. Just to be transparent, you should know that I am an IR student and thus, while I often find myself reading legal texts and papers, I am more interested in the politics of ICL and IL rather than the law itself and its interpretation.

    I want to focus on your second point, because that’s where the crux of the issue lies for me. When you interpret what I’ve said as “criminal law should be changed to take into account more sociological dimensions” you are mostly right. I am not knowledgeable enough to say that ICL *should* do anything, however. You may be right (as I think you are implicitly saying) that within the broader search for justice there needs to be a division of labour and ICL forms only a segment of that labour, within specific – if not always well defined – limits. But my point isn’t a prescription in any sense. I am not attempting to argue that ICL should be something that it isn’t. However, in the wider discussion of IL, ICL and justice, the issues of sociological dimensions of crime remain underprivileged. We know the story: individual responsibility is the key development of law since 1945. That may be all well and good, but it has come at the expense of discourses considering the very collective and social nature of crimes. Thus we are left with very few mechanisms with which to pursue justice in states like Burma and North Korea because the gravest of their human rights and humanitarian violations are structural. Taken to the extreme, this can mean that if you kill someone quickly and with a gun, we value that death more than if you kill someone slowly through starvation.

    I very much like your point that “The result will be lawyers doing bad sociology in an inadequate procedural setting, and sociologists doing bad law.” I largely agree but then again wonder how crime can be separate from the sociological circumstances within which it occurs? One of the gravest dangers, in my view, is that ICL decontextualizes crimes from the sociological contexts within which they occur.

    Perhaps, above all, what I am attempting to say is that this discussion has to take place. The discourses and practices of ICL and transitional justice could use a little bit more reflection. I have a feeling your piece on limits to ICL fits well within this sentiment and looking forward to reading it.

  4. #6 by Xavier Rauscher on 13 December 2010 - 21:37

    Hi Dov,

    I just finished reading that presentation of yours and thought it was great. I’m not sure I agree with everything, but it is definitely thought-provoking and I thought you put your finger where it hurts on multiple occasion. If anything, I thought it was too short, as I was begging for more details on certain points! But I understand that it was apparently presented orally, so it could only be so long.

    I’m going to let the debate between Mark and you go on for now, but I think I might write a whole post on the relevance of genocide and some other points you raised in your article once I get more time to really think and research it.

    In any case, many thanks!

  5. #7 by Vince on 4 January 2011 - 14:43

    Just out of curiosity, how can the sinking of a South Korean warship by North Korea, who is still technically at war with South Korea, be considered a war crime? Isn’t that what submarines do to warships when two countries are at war?

    • #8 by Xavier Rauscher on 4 January 2011 - 15:37

      You’ll have to ask Luis Moreno-Ocampo that. I have no idea how he plans to argue that one. Then again, he probably doesn’t really plan to.

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