Why Has the OTP Announced a “Preliminary Examination” Regarding North Korea?

Why Has the OTP Announced a “Preliminary Examination” Regarding North Korea?

According to a press release today, the OTP is conducting a preliminary examination into whether two recent North Korean attacks on South Korea qualify as war crimes:

  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

    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 preliminary examination will almost certainly go nowhere.  If aggression was an operative crime, it might have been worth pursuing in relation to the second event.  But it is difficult to see how attacking the Cheonan, a prototypical military target, could qualify as a war crime.  And it is even more difficult to see how the shelling of Yeonpyeong Island, though possibly a war crime, could be considered grave enough to warrant an investigation — and I say that as someone who has consistently argued that the OTP should adopt a qualitative understanding of gravity instead of simply counting bodies.

    Given that there is little chance that the OTP will formally investigate, I find it very curious that the OTP has announced that it is conducting a “preliminary examination” of the situation in South Korea.  It is true that, as stated in this document, the OTP conducts such an examination for all of the communications that it receives that are not “manifestly outside of the Court’s jurisdiction.”  (More than 4,800 so far, and counting.)  But the OTP normally publicly announces that it is conducting a preliminary examination only when it considers a situation to have significant potential for formal investigation. Indeed, the OTP has itself made that clear:

    The Office has made public its preliminary examination of 13 situations, including those that have led to the opening of investigations (Uganda, DRC, CAR, Darfur, Kenya), those dismissed (including Venezuela and Iraq), and those that remain under preliminary examination (Colombia, Afghanistan, Cote d’Ivoire, Georgia, Palestine and Guinea).

    All of those preliminary examinations were high-profile and involved very serious crimes.  The situation in South Korea satisfies the former criterion, but patently fails the latter.  So why has the OTP publicly announced the preliminary examination?  Is it just trying to appear relevant?  Does it think the announcement helps undercut (unjustified) criticism that the OTP is unfairly targeting Africa?

    Readers — your thoughts?

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Tom
Tom

To me it reads as though the OTP is attempting to show its face before a situation comes about that would really warrant the ICC’s involvement. Let the leadership of the DPRK know that The Hague is watching…

Xavier Rauscher

The only reason I could come up with is that Luis Moreno-Ocampo has been known to open preliminary examinations in “hotspot” countries prone to violence in order to deter further crimes being committed, with mixed results. Guinea and Côte d’Ivoire are two examples of such a “policy.”

Perhaps Korea is in the same line of thought. Telling Kim Jong-Il  that more bombing of South Korea won’t give him a “ticket to Seoul,” but a “ticket to The Hague.”

We’ll see how that works this time.

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[…] 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 […]

Liz
Liz

The difference might be that North Korea just violated an armistice agreement signed between it (and China), and the United Nations Command? South Korea didn’t sign it, the UN did. It was agreed upon that no opposing force would enter the territory, air space, or contiguous waters under the control of the other.

B. Don Taylor III
B. Don Taylor III

According to the OTP’s 4 Oct. 2010 draft Policy Paper on Preliminary Examinations – which Kevin links above – the only discernably “legitimate” reason seems to be precisely what Xavier posits in his comment (at least once the policy paper is finalized). See para. 89: The Office may decide to make public its activities in relation to the preliminary examination activities in order to contribute to the prevention of future crimes and encourage genuine national proceedings. In doing so, the Office shall be guided inter alia by considerations for the safety, well‐being, and privacy of those who provided the information or others who are at risk on account of such information in accordance with rule 49, sub‐rule 1. Contrast this language with the OTP’s self-drafted regulatory language governing such publicity. Regulation 28(2), Regulations of the Office of the Prosecutor: The Prosecutor may decide to make public the Office’s activities in relation to the preliminary examination of information on crimes under article 15, paragraph 1 and 2, or a decision under article 15, paragraph 6 that there is no reasonable basis to proceed with an investigation. In doing so, the Office shall be guided inter alia by considerations for the safety, well-being, and… Read more »

Liz
Liz

The court exercises jurisdiction over cases referred by the UN Security Coucil. The North Korean government just violated an armistice agreement made with the UN. The Secretary General of the UN is South Korean. It really isn’t so surprising that this situation has, “significant potential for a formal investigation.” At least not to me. Maybe if I’d gone to law school…

Kevin Jon Heller

Liz,

Violating an armistice agreement is irrelevant to whether a formal investigation is warranted, because the ICC does not have jurisdiction (yet) over the crime of aggression.  Whether an act qualifies as a war crime is not affected by the existence or non-existence of an armistice.

Samuel Comi
Samuel Comi

It does seem slightly over the top, as these actions can at worst be qualified as acts of aggression, which remain outside the jurisdiction of the court.  This seems more a political manoeuvre by the OTP to draw attention to North Korea’s recent actions.  Judging from the outcome of the previous 13 situations where a preliminary investigation has been opened, this should also be rapidly dismissed.  Keeping it under examination when both targets were clearly military would be inappropriate.  I suspect that this action is just an attempt by the international community to gain greater access to North Korea, and in the absence of that access the OTP can excuse its continued preliminary examination.