The International Criminal Court (ICC) has issued arrest warrants for Russian President Putin and three of his close associates, causing a stir in the international community. Putin and one of his aides are accused of committing crimes against children and civilians in Russia’s occupied areas of Ukraine, while two Russian generals are charged with attacking Ukraine’s electrical infrastructure.
Similarly, there are growing calls for North Korean leader Kim Jong-un to be held accountable for providing war supplies to Putin. International law experts argue that Kim Jong-un could be charged with at least aiding and abetting war crimes or even being an accomplice to Putin’s crimes.
They contend that, in light of satellite images confirming North Korea’s supply of weapons and ammunition to Russia—evidenced by over 7,000 container boxes—and Ukrainian authorities verifying the use of these munitions against Ukraine, North Korea is implicated in aiding and abetting war crimes as outlined in the Rome Statute, the founding document of the ICC. It is assessed that North Korea’s actions fall under Article 25(3)(c) of the Rome Statute, which covers “facilitating the commission of such a crime, aiding, abetting, or otherwise assisting in its commission or its attempted commission, including providing the means for its commission.”
The view that Kim Jong-un could face even harsher punishment than those who aid and abet war crimes, potentially being prosecuted as a co-perpetrator alongside Putin, was raised by Professor Song, Sang-Hyun, who served as the ICC President for six years from 2009. Professor Song argues that Article 25 of the Rome Statute clearly establishes Putin as the principal offender in the Ukraine war and Kim Jong-un as an accomplice. He emphasizes that, depending on the collection of evidence and the development of the situation, Kim Jong-un could be prosecuted as a co-perpetrator with Putin.
Calls to charge Kim Jong-un at the ICC have been made long before the Ukraine war. International law experts and UN human rights organisations have raised their voices due to the extreme human rights violations, deprivation of food rights, and forced labor of overseas workers in North Korea. Of note was a mock trial conducted in 2022 by five former ICC judges. Their report concluded that human rights abuses in North Korea would be found guilty of most of the 11 types of crimes against humanity specified in the ICC’s Rome Statute.
The fact that Kim Jong-un has not yet been included on the ICC’s list of suspects subject to investigation is not due to the severity of his actions being less compared to Putin’s crimes. The ICC targets individuals who have committed genocide or crimes against humanity in both peacetime and wartime, particularly those who cannot be prosecuted under their own country’s domestic law.
While the arrest warrant issued for Putin pertains specifically to his criminal activities in the Ukraine war, Kim Jong-un’s crimes against his own people during peacetime are extensive. The reason Kim Jong-un remains unscathed is that the criteria for filing a complaint against him have not been met. According to the Rome Statute, there are only two ways to bring a case to the ICC: either a complaint is filed from within the affected country, or the UN Security Council refers the case.
So far, neither of these conditions has been fulfilled. However, now that North Korea’s war crimes in the Ukraine war have been confirmed, there is an opportunity for the Ukrainian authorities, as the victims, to file a complaint against North Korea with the ICC.
While a complaint filed by Ukraine would be ideal, the ICC Prosecutor also has the authority to initiate an independent investigation. There is a specific provision allowing the ICC Prosecutor to start an investigation on his own initiative, even without an external complaint. This authority is based on Article 13 of the Rome Statute and is clearly outlined in the internal regulations of the Office of the Prosecutor.
According to this provision, the Prosecutor may open an investigation independently, and if he decides to proceed, he must seek legal authorisation from the judges.
In fact, the Prosecutor’s independent investigative power has been exercised eight times, including in cases involving Kenya and the Philippines. Therefore, this may be an opportune time for criminal prosecution against North Korean leaders, and it is urged that the ICC Prosecutor exercises his independent investigative power to gather information and materials from South Korea and Ukraine.
The most severe punitive effect is that an arrest warrant has no statute of limitations, meaning the accused must carry the stigma for their entire life, which itself is a significant psychological punishment.
Additionally, war crime suspects, including Putin, face de facto punishment as they are prohibited from setting foot in any of the 124 ICC member countries. This is because ICC member states are obligated to arrest and transfer suspects with outstanding arrest warrants. It is worth noting that ICC Prosecutor Karim Khan, who requested the arrest warrant, compared Putin to Nazi war criminals and Slobodan Milosevic, the perpetrator of ethnic cleansing in the Balkans.
The ICC is an international judicial body responsible for prosecuting and punishing malevolent rulers and their associates for their crimes against humanity. Our interest in the recent ICC activities stem from our belief that the most fundamental steps towards achieving world peace start with these actions. Punishing or sanctioning rogue states internationally has proven limited, as evidenced by the ineffectiveness of the UN Security Council.
In this context, we commend the ICC’s efforts to take action against leaders and individuals committing crimes against humanity. We strongly believe that more instances of prosecuting and punishing those who violate global norms and agreements or engage in deviant behaviour will help eradicate the roots of conflict and war.
From this perspective, we hope the ICC will actively address the war crimes committed by North Korean leader Kim Jong-un and his accomplices, as revealed through the Ukraine war.
Dr. Min-Yong Lee is a Visiting Professor at Sookmyung Women’s University.
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If indeed a case exists for referring North Korea to the ICC, how much stronger must the case now be for referring the US over its support for Netanyahu and his crimes in the occupied Palestinian territories?