1. Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court (the "Rome Statute") is a multilateral treaty that establishes the jurisdiction of the International Criminal Court (the "ICC") over international crimes. The preamble of the Rome Statute stipulates that "the Court established under this Statute shall be complementary to national criminal jurisdictions." It emphasizes the duty of all states to exercise criminal jurisdiction over individuals liable for international crimes.
The Rome Statute was adopted on July 17, 1998, and entered into force on July 1, 2002. South Korea signed the Rome Statute on March 8, 2000, and enacted the Act on Punishment of Crimes under Jurisdiction of the International Criminal Court, which serves as the implementing act, on April 11, 2011.
2. International Criminal Court (ICC)
A. Establishment of the ICC
Founded by the Rome Statute, the ICC was established in The Hague, Netherlands, on March 11, 2003. After World War Ⅱ, the International Military Tribunal (IMT) in Nuremberg, Germany, and the International Military Tribunal for the Far East (IMTFE) were established to punish war criminals. Meanwhile, the United Nations ("UN") established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Unlike the ICC, which is a permanent court, these tribunals were operated temporarily. Distinct from the International Court of Justice, which settles disputes between states, the ICC deals with the criminal responsibility of individuals.
B. Crimes under the ICC
Crimes within the jurisdiction of the ICC are limited to the most serious crimes of concern to the international community as a whole, such as genocide (Article 6), crimes against humanity (Article 7), war crimes (Article 8), and crimes of aggression. Crimes against humanity, frequently mentioned in relation to human rights in North Korea, refer to "any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (i) murder; (ii) extermination; (iii) enslavement; (iv) deportation or forcible transfer of population; (v) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (vi) torture; (vii) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (viii) persecution against any identifiable group or collectivity; (ix) enforced disappearance of persons; (x) crime of apartheid; or (xi) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."
C. The Jurisdiction of the ICC
According to the Rome Statute, the jurisdiction of the ICC is limited to "crimes committed after the entry into force of this Statute (Article 11)." It also states that "no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute (Article 24)." The ICC only has jurisdiction over natural persons and can punish individuals, but has no jurisdiction over countries (Article 25). Finally, the crimes within the jurisdiction of the ICC are "not be subject to any statute of limitations (Article 29)."
The ICC may exercise its jurisdiction with respect to the following cases (Article 13):
- where one or more of such crimes appear to have been committed is referred to the Prosecutor by a State Party in accordance with Article 14;
- where one or more of such crimes appear to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the UN; or
- where the Prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.
In conclusion, the ICC may exercise jurisdiction when a crime occurs within the territory of an ICC state party or if the accused is a national of an ICC state party. However, the ICC can also exercise jurisdiction in cases where a non-state party refers a crime to the ICC prosecutor, or if a referral is made to the prosecutor by the UN Security Council under Chapter VII of the UN Charter. In 2011, the UN Security Council passed a resolution calling for an ICC investigation of Muammar Muhammad Abu Minyar al-Gaddafi from Libya.
D. Influence of the ICC – Implications of Issuing an Arrest Warrant
In March 2023, the ICC issued an arrest warrant for Vladimir Vladimirovich Putin, the president of the Russian Federation, allegedly responsible for the unlawful deportation of children from Ukraine to the Russian Federation.1 This is the third time the ICC has issued an arrest warrant for a head of state, following Omar Hassan Ahmad al-Bashir of Sudan and Muammar Gaddafi of Libya. Russia argued that "Russia is not a party to the Rome Statute of the International Criminal Court and bears no obligations under it." However, the ICC clarified that "the court has jurisdiction over crimes committed in the territory of a state party or a state which has accepted its jurisdiction. Ukraine has accepted the ICC twice."
There are a total of 124 states parties to the ICC. An arrest warrant issued by the ICC authorizes all these countries to arrest Putin. Therefore, the very issuance of the arrest warrant is meaningful, regardless of its enforcement. 2In fact, Putin was invited to the BRICS summit held in South Africa in August 2023 but did not attend because South Africa is an ICC state party.
3. Referring North Korean Authorities Who Have Committed Serious Crimes Against Humanity to the ICC
A. Systematic, Widespread, and Severe Human Rights Infringement Committed by North Korea
On December 19, 2023, the UN General Assembly adopted a resolution on North Korean human rights for the 19th consecutive year. The UN General Assembly has been adopting the resolution by consensus, without a vote. The resolution includes a recommendation to the UN Security Council to refer the human rights status of North Korea to the ICC. In addition, the UN Human Rights Council adopted the Resolution on the situation of human rights in the Democratic People's Republic of Korea on April 4, 2024, for the 22nd consecutive year since 2003, condemning the systematic and widespread human rights infringement in North Korea. Judicial notice has been taken of the fact that systematic, widespread, and severe human rights infringement is being perpetrated in North Korea.
Despite the numerous resolutions and appeals from the international community, there have been no signs of improvement in the severe human rights violations perpetrated in North Korea. Rather, it seems to be getting worse. The international community unanimously calls for the referral of those involved in committing crimes against humanity in North Korea to the ICC.
B. UN Security Council Resolution for ICC Referral and Challenges
North Korea has not yet signed the Rome Statute, which means the UN Security Council requires the approval of nine out of fifteen member countries, including the five permanent members of the UN Security Council and two non-permanent member countries elected for two-year terms, to refer North Korean authorities to the ICC for crimes against humanity. Notably, this case can still be referred to the ICC if a permanent member country abstains, but will be rejected if even one permanent member country votes against it.
Among the permanent member countries of the UN Security Council, China has signed the Sino-North Korean Treaty of Friendship, Co-operation, and Mutual Assistance with North Korea, and Russia has served as the guardian for North Korea since the establishment of its regime. Therefore, China and Russia are likely to exercise their veto powers on any UN Security Council resolution that imposes sanctions or disadvantages on North Korea. Ultimately, addressing the issue through the UN Security Council cannot be a fundamental solution.
C. Alternative Measures
(i) Referring to South Korean Courts Assuming North Korean Criminals Are South Korean Citizens
"Crimes against humanity" is defined in Article 9 of South Korea's Act on Punishment of Crimes under Jurisdiction of the International Criminal Court. Article 3 of the Constitution of the Republic of Korea states that "the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands," which clarifies that North Korea belongs to South Korea. South Korea's Supreme Court decisions and the Constitutional Court of Korea's resolutions also define North Korea as an "anti-government organization that schemes to subvert the liberal democracy system of the Republic of Korea." Therefore, it is possible for criminals who commit crimes against humanity, including North Korean leader Kim Jong Un, to be prosecuted in South Korean courts. However, there is the practical limitation that South Korean jurisdiction does not extend to North Korea.
(ii) Conducting ICC Investigations and Trials on the Premise the North Korean Criminals Are South Korean Citizens
In 2016, a complaint was filed alleging that the supreme leader of North Korea was responsible for numerous serious crimes committed in areas within the ICC jurisdiction. Although North Korea is not a state party to the Rome Statute, the foundational treaty of the ICC, the supreme leader of North Korea can be assumed to be a national of South Korea, which is a state party to the Rome Statute, under South Korean law. However, the Office of the Prosecutor of the ICC stated that it has no jurisdiction over the allegations against the supreme leader of North Korea as the alleged crimes were neither committed in the territory of an ICC member state nor by a national of an ICC member state, and there has been no referral by the UN Security Council.
(iii) Establishing an International Special Tribunal
On November 3, 1950, the 5th UN General Assembly adopted the "Uniting for Peace" resolution, which states, "if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security ... the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures." Since the UN cannot be stopped by the veto of a single country, holding a vote at the UN General Assembly could be a possible solution. However, with China and Russia covering for North Korea, the possibility of the UN General Assembly passing a resolution to establish an international special tribunal for North Korea's crimes against humanity seems low.
(iv) Exercising Universal Jurisdiction
While it is difficult to expect a specific country to exercise universal jurisdiction to prosecute North Korea's crimes against humanity, if a specific country succeeds in apprehending these criminals, exercising universal jurisdiction would not be impossible.
(v) Coercive RtoP Measures Enforced by the UN
Pillar III of the Responsibility to Protect (RtoP) affirms the international community's responsibility to intervene with coercive measures pursuant to Chapter VII of the UN Charter. Accordingly, the UN Security Council is authorized to use coercive measures to address acts of aggression, human rights infringement, violations of the International Humanitarian Law, and massive refugee crises. However, such measures have limited effectiveness as if even one permanent member of the UN Security Council opposes, the resolution for the coercive measure can be vetoed and dismissed.
4. Conclusion
North Korea is currently neither a party to the ICC nor has it accepted the jurisdiction of the ICC. With China and Russia acting as North Korea's protectors, it has become a challenge to refer North Korean offenders of crimes against humanity to the ICC with the resolution of the UN Security Council. Therefore, various measures have been considered as alternatives, such as referring North Korean criminals to South Korean courts or the ICC on the premise that they are South Korean citizens, establishing an international special tribunal, exercising universal jurisdiction, and implementing Responsibility to Protect (RtoP) measures enforced by the UN. However, none of these measures have been effective in practice.
Yet, history has taught us that we never know how things will turn out. We must prepare thoroughly with the conviction that the day will inevitably come when Kim Jong Un and other North Korean criminals are referred to the ICC for their crimes against humanity.
Footnotes
1. " ICC Issues Arrest Warrant for Putin: '123 States Parties Have an Obligation to Arrest'." The Chosun Ilbo, March 20, 2023.
2. "ICC Issues Arrest Warrant for Putin: Significant Even If He Does Not Face Trial." The JoongAng, March 20, 2023
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