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The Peninsula

Could North Korea be Sent to the International Criminal Court Over Kim Jong-nam?

Published March 2, 2017
Category: North Korea

By Troy Stangarone

Under Kim Jong-un North Korea has continued to commit a wide range of human rights violations including political and religious discrimination, forced abductions, rape, and murder. These and other violations of the North Korean people’s rights have been well documented by both the UN Commission of Inquiry’s (COI) report and the continuing testimony of those who have escaped the regime. However, with it becoming increasingly clear that North Korea had a role in the assassination of Kim Jong-nam some have suggested that North Korea be investigated and tried by the International Criminal Court (ICC).

Despite North Korea’s human rights violations, North Korea has faced few costs for its actions. The United States has sanctioned both Kim Jong-un and his sister personally for their role in North Korea’s human rights violations, but despite the evidence against the regime there have been few efforts to hold the regime accountable. The COI report suggested referring North Korea to the ICC and the UN General Assembly has passed resolutions encouraging the UN Security Council to refer North Korea to the ICC, but these efforts have yet to result in the case being referred to the ICC.

In recent days we have seen both the South Korean government and South Korean human rights and defector organizations call for the ICC to take up the case of North Korea’s human rights violations. However, the ICC may not be a viable venue for holding North Korea accountable.

The ICC was established by UN member states to try cases of human rights violations and other crimes that states either did not have the capacity or the will to try. However, the court only has jurisdiction over crimes committed on or after July 1 2002 and those crimes committed by a State that has accepted the court’s jurisdiction by acceding to the Treaty of Rome or that is referred to it by the UN Security Council.

In the case of North Korea, its human rights violations committed before July 1, 2002 would not be eligible for review by the ICC, but all of the crimes committed since then and under Kim Jong-un would be within the court’s jurisdiction. However, North Korea is not a party to the Treaty of Rome, nor is Malaysia, and for the court to investigate and try the regime the UN Security Council would have to refer to case to the ICC. There seems little hope of that occurring.

When the UN General Assembly urged the UN Security Council previously to refer North Korea to the ICC, the Security Council declined to take up the case. Despite North Korea conducting an assassination using a toxin banned under the Chemical Weapons Convention (which North Korea is also not a party to) that could have endangered other lives, it seems unlikely that the Security Council would change its stance over the murder of Kim Jong-nam. This is especially the case with Russia having recently withdrawn from the Treaty of Rome declaring that the ICC had become politicalized when efforts were begun to bring Russians before the court for their actions in the Ukraine. Similarly, African states have withdrawn from the court as it has gone after their leaders. In this environment, it seems unlikely that Russia or China would allow a referral of North Korea to take place.

If the ICC is not a viable option, what recourse does the international community have? There are a series of states that have universal jurisdictions which allows for the prosecution of crimes against humanity in national courts. Spain, for example, has tried a series of individuals from Latin America for human rights violations with its case against Augusto Pinochet, the former Chilean dictator, being one of the higher profile examples. The indictment by a Spanish judge led to Pinochet being arrested in London and held for more than a year before being allowed to return to Chile where we was later tried for his crimes. While Kim Jong-un is unlikely to travel abroad and risk facing arrest, courts with universal jurisdiction could potentially be used to go after other North Korean officials who do travel abroad or to seek financial awards that seize North Korean assets.

Troy Stangarone is the Senior Director for Congressional Affairs and Trade at the Korea Economic Institute of America. The views expressed here are the author’s alone.

Photo from United Nation’s Photo on flickr Creative Commons.

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