North Korea and the ICC: Who Should Trigger ICC's Jurisdiction?

Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (‘Commision of Inquiry’) No. A/HRC/25/63 dated 7 February 2014 calls the international community to act on evidence that crimes against humanity are being committed in North Korea.

Paragaph 94 (a) of the Report recommends that UN Security Council should invoke article 13.b of the Rome Statute of the International Criminal Court (‘ICC’) to refer the situation in North Korea to the ICC to triggers ICC’s jurisdiction.

Before discussing who should trigger ICC’s jurisdiction it is important to seek whether the situation in North Korea falls within jurisdiction of the ICC.

Article 7 of the Rome Statute criminalises crimes against humanity as one of the most serious crimes of concern to the international community. Paragraph 1 of article 7 reads: ‘…crimes against humanity means 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…’.

This article might not discuss in details all elements under paragraph 1 of article 7. By reading the report of the Commission of Inquiry, many of the elements such as ‘any of the following acts’, ‘committed as part of’, ‘widespread or systematic’, ‘directed against any civilian population’ and ‘with knowledge of’ might have been fulfilled. However, some may argue that the ‘attack’ element have not been met to trigger ICC’s jurisdiction.

One may refer to the debate in the Preparatory Committee, a committee that was established in 1996 to draft the Rome Statute of the ICC, that the word ‘attack’ was intended to indicate some use of force and resort to violence.

If we read carefully from the list of acts defined in paragraph 1 of article 7, not all crimes against humanity stipulated thereon involve acts of violence. Crime of apartheid for example, may not necessarily involve acts of violence as confirmed by Ayakesu case in ICTY Trial Chamber judgment. Its paragraph 581 reads ‘an attack may also be non violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner’.

In this debate, G Mettraux in his book ‘International Crimes and the Ad Hoc Tribunals’ contends that he ‘does not agree … [that] apartheid can be regarded as ‘non-violent’ or … any ‘attack’ within the meaning of crimes against humanity could be non-violent’. In brief, he contends that an ‘attack’ must be violent in the context of crimes against humanity. If this was the case, the situation in North Korea might not trigger ICC’s jurisdiction as there are no ‘attack’ under this definition.

However, the Element of Crimes of the ICC confirms and support ICTY Trial Chamber judgment. Paragraph 3 of the introduction to the element of article 7 in the Element of Crimes expressly states that ‘the acts need not constitute a military attack’. Here, an attack does not necessarily equate with military attack, armed hostilities, or violent force; as G. Mettraux might suggest. It might refer to state’s policy conducted against civilian population.

Thus it is clear that from article 7’s standpoint, an attack does not necessarily mean a military attack and that the report of the Commission of Inquiry is sound to argue that North Korea is committing a crime against humanity under the Rome Statute regime.

What about the Commission of Inquiry’s recommendation for the UN Security Council to refer the situation to the ICC?

This article believes that such scenario will be highly problematic. In a verbale note dated 30 December 2013 submitted by the Permanent Mission of China to the UN Offices at Geneva to Judge Michael Kirby as the Chair of the UN Commission of inquiry, China re-emphasises her position that China does not support the establishment of the Commission of Inquiry. This will obviously lead to an act of veto by the Chinese government if the UN Security Council is going to hold the meeting to discuss the possibility of referring North Korea’s situation to the ICC on the basis of the Commision of Inquiry’s report.

The international community will then left with two options to bring North Korea’s situation to ICC: self referral under article 14 of the Rome Statute that had been exercised by Uganda and Democratic Republic of Congo and initiation of investigation by the Prosecutor of the ICC acting proprio motu under article 15 of the Rome Statute.

The former option is obviously out of context as it is unlikely for the North Korean government to self-refer the situation to the ICC. The latter option, in contrary, might be a feasible approach.

The ICC is widely criticised for being too selective in only investigating situations originating from Africa. So far the ICC has convicted only one person: Thomas Lubanga of DRC and is currently investigating cases in Uganda, DRC, Central African Republic, Sudan, Kenyan, Libya, Mali and Ivory Coast. All are from Africa.

Although the writer argues that accusation of ICC being bias, targeting only African cases, is contentious; it is believed that action from the ICC Prosecutor to initiate investigation in North Korea might be beneficial for the ICC to counter response this allegation and to increase its credibility.

Article 15 of the Rome Statute reads “the Prosecutor may initiate investigation proprio motu on the basis information on crimes within the jurisdiction of the Court”. Considering all of the elements under article 7 have been met, the Prosecutor is now empowered to take certain initial steps to obtain and analyse information with a view to determining whether there is a reasonable basis to proceed with an actual investigation. As a starting point, Report of the UN Commission of Inquiry will be suffice to trigger Prosecutor’s authority under article 15 of the Rome Statute.