Barrister Muhammad Muzahidul Islam :
There are allegations against North Korea that it is assisting Russia militarily in the Ukraine war; North Korea’s missiles and military products are being used and applied against the Ukrainian people. The International Criminal Court (ICC) established under the Rome Statute is mandated to try four crimes including the “War Crimes”. ICC already issued an arrest warrant against Russian president Putin alleging his involvement in the crimes punishable under the ICC. Do the activities of North Korea in the Ukraine war come within the ambit of ICC’s war crimes? Should North Korean leader Kim Jong Un be liable, for what he has been doing in the Ukraine war, to be an ‘accomplice’?
We know that Criminal laws punish both the principal offenders and the accomplices. In criminal law, the principal offenders are those persons who commit a crime, while the accomplices are those who aid in the commission of the crime. I would like to mention the relevant provisions from articles 25 and 30 of the Rome Statute of the International Criminal Court.Article 25(3) provides that “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”. Article 30 provides that “Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly”.
The relevant questions are – whether the activities of North Korea in the Ukraine war come within the ambit of ICC’s war crimes, and whether North Korean leader Kim Jong Un should be liable, for what he has been doing in the Ukraine war, to be an ‘accomplice’. To discuss these questions, I would like to share with you some insights from an article published in the Diplomat (Time to Bring Kim Jong UnBefore the International Criminal Court, Given Pyongyang’s military assistance to Russia, Ukraine now has standing to pursue an ICC case against the North Korean leader, By Lee Min-yong, June 21, 2024). According to the above-mentioned article “In March 2023, the International Criminal Court (ICC) issued arrest warrants for Russian President Vladimir 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. 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. 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 could be charged with at least aiding and abetting war crimes or even being an accomplice to Putin’s crimes.”
This article mentioned above further states that ”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.” It further narrates that “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 United Nations Security Council refers the case. So far, neither of these conditions has been fulfilled. However, now that North Korea’s war crimes in Ukraine have been confirmed, there is an opportunity for the Ukrainian authorities, as the victims, to file a complaint against North Korea with the ICC”.
In the above-mentioned article, the author pulled a conclusion with the following words – “More instances of prosecuting and punishing those who violate global norms and agreements or engage in deviant behavior will help eradicate the roots of conflict and war. From this perspective, we hope the ICC will actively address the crimes committed by North Korean leader Kim Jong Un and his accomplices, as revealed through the Ukraine war”.
It is expected that the international community will come forward to assist the ICC in holding the perpetrators accountable. The relevant States including North Korea should be ‘honest and sincere’ in the observance of the relevant UN Security Council resolutions. States are expected to sit together for dialogues to reach a sustainable peaceful solution. Peace-loving people of the globe like to see North Korea as more attentive to its internal affairs rather than external affairs; itspeople have been the victims of human rights abuses for decades, and have been far away from the enjoyment of their fundamental human rights.
(The writer is a human rights activist and an advocate at the Supreme Court of Bangladesh).
