In 2016, leaders of nongovernmental organizations NK Watch and Lawyers for Human Rights and Unification of Korea filed a complaint against Kim with the ICC, holding him responsible for human rights violations in the North.
ICC prosecutor Fatou Bensouda said in its annual Report on Preliminary Examination Activities issued Thursday that the alleged crimes referred to the ICC were neither committed on the territory of an ICC member state nor by a national of a member state, nor has the United Nations Security Council referred the situation in question.
|North Korean leader Kim Jong-un (KCNA-Yonhap)|
The complainants had said that although North Korea is not an ICC member state, the ICC may exercise jurisdiction over its leader, given that under South Korean domestic law, he may be considered a national of South Korea.
Article 3 of the South Korean Constitution states that “the territory of Republic of Korea shall consist of the Korean Peninsula and its adjacent islands.”
The Inter-Korean Basic Agreement, signed by South and North Korea in 1991, states that “inter-Korean relations are not relations between nations, but special relations established temporarily in the course of pursuing unification.”
However, the ICC prosecutor’s office said the nationality granted by a state on the basis of its domestic laws is not automatically binding on international courts and tribunals.
“Based on the (South Korean) Supreme Court’s interpretation of the ROK Constitution, the South Korean authorities have expressed that there is an ‘assumption’ that North Koreans can acquire South Korean citizenship … such recognition appears to correspond more to an entitlement to South Korean nationality,” the ICC prosecutor wrote in the report. ROK refers to the Republic of Korea, the South’s official name.
For such entitlement to take effect, North Koreans must go through formal procedures to acquire ROK citizenship, and prior to the process, it appears that in practice, North Koreans are neither treated as South Korean nationals by the ROK government nor afforded the rights and protection enjoyed by South Korean nationals, the prosecutor said.
Regarding another complaint filed in 2017 alleging that North Koreans are engaged in forced labor overseas that amounts to the crime against humanity of enslavement, the ICC prosecutor said that does not seem to be the case.
Noting that the working and living conditions of North Korean workers abroad vary significantly among host countries, the ICC prosecutor said the detailed accounts of alleged serious abuse appear to be related to North Korean workers in non-ICC member states.
While North Korean overseas workers dispatched to ICC member states are reportedly subject to exploitative working conditions, “it does not appear that their situation is, on the whole, comparable to conditions of slavery or amount to the crime of enslavement” under the Rome Statute of the ICC, the ICC prosecutor said.
The Rome Statute, which was adopted in 1998 and went into effect in 2002, establishes the functions, jurisdiction and structure of the ICC, which prosecutes individuals for international crimes of genocide, crimes against humanity, war crimes and crimes of aggression.
By Kim So-hyun (firstname.lastname@example.org)