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Ⅰ. Background
Ⅱ. Accountability and Immunity for Incumbent Heads of State
Ⅲ. Possibilities of Pursuing Accountability of the DPRK Leadership
Ⅳ. Policy Implications for the ROK
Ⅰ. Background
Accountability of the DPRK leadership for serious human rights violations amounting to international crimes is gaining more attention since this issue was raised at the United Nations Security Council (UNSC) on March 17, 2023. Issues concerning the DPRK’s human rights violations have been on the UN agenda since 2003, but it was in 2014 when the need for accountability of its leadership was first mentioned in the ‘Commission of Inquiry on Human Rights in the DPRK’ report, which claimed that “systematic, widespread and grave violations of human rights” that constitute crimes against humanity are being committed by the DPRK. Therefore, the Commission provided that the UN must ensure that those responsible for crimes against humanity are held accountable, including through a possible Security Council referral of the situation to the International Criminal Court (ICC) or the establishment of an ad hoc tribunal by the UN. Following this report, the UN General Assembly in December 2014, was able to pass a resolution recommending a referral of the DPRK situation to the ICC and the Security Council adopted the DPRK human rights issues as part of its agenda for the first time in December of the same year. But attempts to refer to the ICC eventually failed since China and Russia voted against it.
The issue resurfaced at the Security Council through an Arria-formula meeting on 17 March 2023 based on a proposal by the U.S. and Poland. At this meeting, Elizabeth Salmón, Special Rapporteur on the situation of human rights in the DPRK, argued that the Security Council should refer it to the ICC to hold the DPRK leadership accountable. On the same day, the ICC issued an arrest warrant against President Vladimir Putin, proving that the ICC can pursue accountability of even incumbent leaders for international crimes. Under these circumstances, the ROK needs to draw up all possible scenarios. Even though there are ongoing international debates on whether it is legitimate to pursue accountability for an incumbent and limits within the Security Council do exist due to the presence of China and Russia, the UN Human Rights Council has mentioned other platforms for pursuing accountability. Considering these developments, the ROK needs to be prepared for various scenarios.
Ⅱ. Accountability and Immunity for Incumbent Heads of State
This is not the first time that the ICC issued an arrest warrant for an incumbent head of state. In 2009, the ICC issued an arrest warrant against President Omar Hassan Ahmad al-Bashir for war crimes, and crimes against humanity that were committed in Sudan, which sparked much controversy in relation to the issues of state sovereignty and immunity. The government of Sudan at that time refused to cooperate with the ICC, arguing that it was an infringement of Sudan’s sovereignty, and other nations in the African Union and the Arab League also refused to extradite Sudan’s ex-President in the event he was on their territory. Thus, President al-Bashir was not extradited to the Hague and it was only in 2019 that the government of Sudan agreed to extradite him while he was serving his sentence for corruption in Sudan.
It is a firm principle of international law that heads of state enjoy sovereign immunity, but the ICC was able to issue an arrest warrant for President al-Bashir based on Article 27 of the Rome Statute, which states that a head of state shall in no case be exempted from criminal responsibility and no other special procedural rules can bar the Court from exercising this jurisdiction. This provision was drafted to serve the purpose of the ICC, which is to end impunity for all international crimes. After the ICC arrest warrant, the Sudanese government did argue that the ICC could not exercise jurisdiction since Sudan was not a party to the Rome Statute, but the court decided that it was, as a matter of law, legitimate since the situation in Sudan was referred to the ICC through a Security Council resolution. After this decision, the ICC issued another arrest warrant against President al-Bashir for genocide in 2010 and even decided in another case that Jordan had violated its international obligations by not extraditing him to the Hague. The Libya situation was similarly referred to the ICC in 2011 through the Security Council and an arrest warrant was issued for Muammar Gaddafi, the deposed leader of Libya, but the case ended with his death six months later.
On March 17, 2023, the ICC for the third time made headlines by issuing an arrest warrant for an incumbent, President Putin, alleging that he is responsible for the unlawful deportation and transfer of population, particularly children from Ukraine to Russia. Even though the situation in Ukraine was not referred to through the Security Council, the court was able to exercise jurisdiction over the acts committed on Ukraine’s territory based on declarations made by Ukraine in 2014 and 2015. The Court also found that there were reasonable grounds to believe that President Putin bears individual criminal responsibility for having committed the acts directly, jointly with others, and/or through others based on Article 25 (3) of the Rome Statute. Such actions by the court represent the international community’s commitment to ensure that no individual gets away with impunity for international crimes.
Ⅲ. Possibilities of Pursuing Accountability of the DPRK Leadership
These trends are likely to affect the situation in the DPRK. Since 2022, the Special Rapporteur on the situation of human rights in the DPRK Elizabeth Salmón has emphasized the role of the Security Council in referring the situation to the ICC, and the 2023 report on ‘Promoting accountability in the DPRK’ (A/HRC/52/64) submitted to the 52nd UN Human Rights Council also recommended the referral or the establishment of an ad hoc tribunal for pursuing accountability of DPRK leaders for systematic abuses including forced displacement, overseas forced labor and human trafficking. The Special Rapporteur went further to mention that she would support all forms of civil claims against the DPRK, signaling the existence of other legal avenues.
Since the DPRK is not a party to the Rome Statute, referral through the Security Council may be the only possible way to pursue accountability at the ICC, but China and Russia, as permanent members, are most likely to veto this resolution. Possible alternatives include adopting a resolution through the General Assembly such as the ‘United for Peace’ resolution adopted during the Korean War, but this is unlikely to be a feasible option if the Security Council is functioning properly. The 2023 report on ‘Promoting accountability in the DPRK’ further mentions that the ROK courts could consider exercising universal jurisdiction, especially since most of the victims are now residing in the ROK, but we cannot overlook the fact that many countries are no longer exercising universal jurisdiction considering ongoing controversies surrounding its legitimacy under international law. In addition, civil suits, the establishment of an ad hoc or special tribunal and sanctions against the DPRK continue to be discussed in these UN reports and among experts.
Ⅳ. Policy Implications for the ROK
With the international community ramping up pressure to hold leaders, even incumbents, accountable for international crimes, the DPRK leadership is likely to face mounting pressure down the road. And with the UN calling for the ROK to act on these issues, the ROK needs to consider ways to participate in these global efforts to end impunity for international crimes. In particular, the ROK should continue to publicize the human rights situation in the DPRK as it did on March 30 through the ‘2023 DPRK human rights report,’ published by the Ministry of Unification. The ROK also needs to collaborate with the UN and other organizations which are collecting and preserving data related to these human rights abuses. Furthermore, the ROK should revisit its domestic laws to determine possible avenues for pursuing accountability within its own system by referring to domestic cases of other countries. In fact, the UN finds that the ROK has a comprehensive system for investigating and prosecuting international crimes and calls for creative strategies to effectively tackle the human rights issue in North Korea. Moreover, with civil society groups and victims increasingly pursuing multiple avenues to pursue accountability, the ROK government needs to forge new diplomatic strategies.
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