Can a referral deter future crimes?

In the wake of the United Nations Commission of Inquiry report on North Korean human rights abuses, a chorus of voices from around the world has called for the UN Security Council to refer the North Korean situation to the International Criminal Court (ICC), as the Commission of Inquiry recommended in its final report.

The ICC could then investigate the perpetration of crimes against humanity and genocide by Kim Jong-un and other officials in the North Korean regime. So far, however, there has been little public debate about the implications of an ICC investigation. In part, this is no doubt due to the fact that China (and probably Russia) is very likely to veto any Security Council referral, as is their right, so virtually nobody expects a referral to actually happen.

Geopolitical alignments can change quickly, however, and proposals that seem unrealistic may eventually come to pass. At some point in the future, China and Russia may decide to allow a referral to take place, as they did for Sudan and Libya. Therefore, it is worth considering the implications of a Security Council referral of the North Korean situation to the ICC, and whether an ICC investigation of North Korean crimes would actually work to deter future atrocities.

In fact, there is a good chance that an ICC referral would have an incremental deterrent effect - but probably not in North Korea itself. The key here is to distinguish between global, or systemic, deterrence and local deterrence within North Korea itself. At the global level, other potential perpetrators of international crimes would look at a North Korean investigation and sense that the ICC has a greater reach than previously thought. They would see that even if a country has not ratified the Rome Statute; even if it is allied with a superpower (China); even if it is non-African (where the ICC has concentrated its attention thus far), it does not matter: ICC investigations and indictments are possible. Authoritarian leaders from Belarus to Turkmenistan to Bahrain would take note.

On the other hand, members of the North Korean regime would be unlikely to be deterred from future crimes by an ICC investigation. For one thing, it is difficult to deter individuals who have already committed grave crimes from committing future crimes. Why would Kim Jong-un refrain from committing international crimes when he knows that changing his behavior would not prevent a future prosecution? Regardless of future behavior, he would still face indictment by the ICC and a potentially long prison sentence for his past crimes. And given that Kim Jong-un is the world’s youngest leader, there is likely to be a very long wait until his successor comes to power for deterrence to have an effect at the top.

Deterrence also relies on the potential perpetrator fearing punishment, but in this case the chances of Kim Jong-un and his associates ever actually being prosecuted would be exceedingly slim. The ICC lacks a police force, and therefore would be unable to prosecute Kim Jong-un and his fellow regime officials unless they turn themselves in, are captured and sent to The Hague while traveling abroad, or are turned in by a future (post-unification or post-transition) regime. The first of these possibilities is unthinkable, and the second is extremely unlikely given that Kim Jong-un and other top leaders rarely travel. The possibility of the North Korean regime losing power, while always present, is perhaps made less likely by an ICC indictment. After all, why would Kim Jong-un (or any of the top North Korean leaders) peacefully give up power if their reward would be a long prison sentence in The Hague. This is a variant of the core question that plagues international criminal justice: How does one ensure that the threat of international criminal prosecutions does not entrench a dictatorship in place, thus ironically prolonging the very abuses that the ICC is intended to prevent?

It is, of course, true that Kim Jong-un and the rest of his regime would see their international reputations suffer if they are indicted by the ICC for crimes against humanity. However, it is unlikely that this reputational damage alone would be enough to deter them from future crimes. The North Korean regime is regularly condemned for its human rights abuses at both the UN General Assembly and the UN Human Rights Council, yet that does not seem to have tempered the willingness of the North Korean regime to commit atrocities against its own people.

Knowing all this, policy makers should be clear what they expect to result from an ICC referral, if it ever occurs. A referral could help deter atrocities around the world by making the ICC seem more of a threat at the global or systemic level. It is unlikely to deter atrocities in North Korea, however, and might even give the regime’s leaders a greater reason to hang on to power. Is this trade-off worth making (bearing in mind, of course, that there may be other valid reasons for an ICC referral besides deterrence)? In the pressure for a strong reaction to North Korea’s undoubtedly horrendous human rights abuses, that is a question that has not been sufficiently debated.

*The author is an associate professor in the Graduate School of International and Area Studies at Hankuk University of Foreign Studies.

by Andrew Wolman