Today, 23 June 2014, the Prosecutor of the International Criminal Court (ICC or the Court), Mrs Fatou Bensouda, announced the conclusion of the preliminary examination of the situation in the Republic of Korea (RoK). Following a thorough factual and legal analysis of the information available, the Prosecutor has determined that, at this stage, the Rome Statute requirements to seek authorization to initiate an investigation have not been satisfied.
The preliminary examination of the situation in the Republic of Korea was
initiated in December 2010 in order to assess whether two incidents in the Yellow Sea, namely the sinking of a South Korean warship, the Cheonan, on 26 March 2010, and the shelling of South Korea’s Yeonpyeong Island on 23 November 2010, could amount to war crimes that fall under the jurisdiction of the ICC.
After a most careful assessment, regarding the Cheonan, the conclusion is that the alleged attack was directed at a lawful military target and would not otherwise meet the definition of the war crime of perfidy as defined in the Rome Statute. Regarding the shelling of Yeonpyeong Island, the conclusion is that even though the shelling resulted, regrettably, in civilian casualties, the information available on this incident does not provide a reasonable basis to believe that the attack was intentionally directed against civilian objects or that the civilian impact was expected to be clearly excessive in relation to the anticipated military advantage. The Prosecutor has therefore concluded that there is no reasonable basis to initiate an investigation. A detailed
report has been issued by the Prosecutor presenting the Office’s findings with respect to these jurisdictional matters.
Should further information become available in the future which would lead the Office to reconsider its conclusions in the light of new facts or evidence, the preliminary examination could be re-opened. Furthermore, the Prosecutor stresses that should any future acts be committed on the Korean peninsula that appear to fall under the Court’s jurisdiction, the Prosecutor remains prepared to initiate a preliminary examination into such acts, and to investigate and prosecute the perpetrators as appropriate.
The RoK has been a State Party to the Rome Statute since 13 November 2002. The Court may therefore exercise jurisdiction over genocide, crimes against humanity or war crimes committed on the territory of RoK or on vessels and aircraft registered in the RoK on or after 1 February 2003, the date on which the Statute entered into force for the RoK.
On 6 December 2010, the then Prosecutor Luis Moreno Ocampo
announced the opening of a preliminary examination to evaluate if two incidents in the Yellow Sea constitute war crimes under the jurisdiction of the Court, namely the shelling of Yeonpyeong Island on 23 November 2010, and the sinking of a South Korean warship, the Cheonan, on 26 March 2010.
In accordance with its statutory mandate, the Office of the Prosecutor analysed whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court was committed in the course of either incident, on the basis of the information available. Additional information was also sought from relevant states in order to analyse the seriousness of the information already in the Office’s possession. The Prosecutor expresses her appreciation for the full cooperation received from the Government of the Republic of Korea.
With today’s decision, the Office of the Prosecutor is now conducting preliminary examinations in ten situations: Afghanistan, Central African Republic, Colombia, Comoros, Honduras, Iraq, Georgia, Guinea, Nigeria and Ukraine.
For further information on the preliminary examination of the Situation in the RoK, see the
Office of the Prosecutor’s Article 5 Report.
For information on the Office’s preliminary examinations,
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