North Korea: The ICC's Problem With Jurisdiction

Law and Order

On the heels of its first conviction, all eyes are on the International Criminal Court (ICC). The world is watching to see if this accomplishment can assist the court in building momentum in its fight against impunity. With fourteen other cases currently before the court, as well as numerous others under preliminary investigation, the court seems to have great potential. For its proponents, things are finally starting to look up. Its opponents, however, might see one conviction in ten years as little reason to celebrate.

In truth, there is definitely room for the court to grow and improve. This is to be expected, especially with an international body that requires the coordination and cooperation of multiple states. While a separate entity from the United Nations, the ICC is similar in its reliance on international cooperation. Both of these bodies have great potential, but reaching that potential is dependent on the international community adopting and embracing their mission. For the ICC, this means states not only voicing support for the court but also referring cases and delivering criminals to the Hague. Furthermore, these two must work in coordination with each other. This is especially important in the case of jurisdiction, which is arguably one of the greatest barriers for the ICC. The court’s one way around jurisdictional issues is the UN’s referral of crimes committed in states not signatory to the Rome Statute.

The case of North Korea is a great example of the ICC’s issues of jurisdiction. As I mentioned in my last post, a preliminary investigation is currently underway in relation to North Korea. The Office of the Prosecutor, in response to requests by member states, is investigating the 2010 sinking of the Cheonan as well as the shelling of Yeonpyeong Island later that same year. It is believed that a North Korean submarine fired a missile at the South Korean Cheonan, sinking the ship and killing 46 of the sailors aboard. Additionally, the shelling of Yeonpyeong killed 4 more South Koreans.

The court has jurisdiction to investigate these potential war crimes because they were committed on South Korean soil. South Korea is signatory to the Rome Statute, and thus can reasonably expect war crimes committed on its soil to be investigated by the court. On its own, the investigation into these crimes seems reasonable and warranted. Where it gets complicated is when one looks at the broader picture and the egregious human rights violations being committed within the borders of North Korea.

Last year, Amnesty International released a report detailing the abhorrent system of political prisons in North Korea. Citizens of the world came to learn about the arrest, torture and murder of innocent civilians. It became front page news that the country practiced a method of collective punishment and guilt by association, imprisoning anyone it deemed possibly connected to a "crime." Not surprisingly, even in such a secretive and isolationist country, word spread about these crimes.

Here is the problem: North Korea is most definitely not signatory to the Rome Statute, nor is it likely to ever sign. We might be more likely to see the United States ratify the statute than North Korea. This means that without a referral from the UN Security Council, the ICC has no jurisdiction to prosecute these crimes. It cannot even open a preliminary investigation. Thus, the ICC is left to investigate the killing of 50 South Koreans (the importance of which I'm not denying), and is unable to investigate the imprisonment and torture of approximately 200,000 civilians in the north.

This is a problem the ICC is going to have to deal with if it wants to be a true defender of justice in the world. There needs to be a realistic way to prosecute such crimes, not a convoluted process that requires nearly impossible collective support from the international community. One could argue that the court is capable of pursuing a case against these crimes in North Korea. However, I am not sure it could be any more difficult than it already is. There needs to be a way to simplify the process.

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ICC, North Korea