According to a press release today, the OTP is conducting a preliminary examination into whether two recent North Korean attacks on South Korea qualify as war crimes:
- The shelling of Yeonpyeong Island on the 23 November 2010 which resulted in the killing of South Korean marines and civilians and the injury of many others; andThe sinking of a South Korean warship, the Cheonan, hit by a torpedo allegedly fired from a North Korean submarine on 26 March 2010, which resulted in the death of 46 persons.The preliminary examination will almost certainly go nowhere. If aggression was an operative crime, it might have been worth pursuing in relation to the second event. But it is difficult to see how attacking the Cheonan, a prototypical military target, could qualify as a war crime. And it is even more difficult to see how the shelling of Yeonpyeong Island, though possibly a war crime, could be considered grave enough to warrant an investigation — and I say that as someone who has consistently argued that the OTP should adopt a qualitative understanding of gravity instead of simply counting bodies.Given that there is little chance that the OTP will formally investigate, I find it very curious that the OTP has announced that it is conducting a “preliminary examination” of the situation in South Korea. It is true that, as stated in this document, the OTP conducts such an examination for all of the communications that it receives that are not “manifestly outside of the Court’s jurisdiction.” (More than 4,800 so far, and counting.) But the OTP normally publicly announces that it is conducting a preliminary examination only when it considers a situation to have significant potential for formal investigation. Indeed, the OTP has itself made that clear:The Office has made public its preliminary examination of 13 situations, including those that have led to the opening of investigations (Uganda, DRC, CAR, Darfur, Kenya), those dismissed (including Venezuela and Iraq), and those that remain under preliminary examination (Colombia, Afghanistan, Cote d’Ivoire, Georgia, Palestine and Guinea).All of those preliminary examinations were high-profile and involved very serious crimes. The situation in South Korea satisfies the former criterion, but patently fails the latter. So why has the OTP publicly announced the preliminary examination? Is it just trying to appear relevant? Does it think the announcement helps undercut (unjustified) criticism that the OTP is unfairly targeting Africa?Readers — your thoughts?
