The 10th Preparatory Commission for the International Criminal Court

Update on Ratification Status of the Republic of Korea
The Republic of Korea signed the Rome Statute on March 8, 2000, as the 95th signatory state. Just after signing, Lee Si-Young, the ambassador to the UN at that time said, “the Republic of Korea signed the Statute for the purpose that it participate in the effort of the international society to punish the crimes against humanity and express the view of the South Korean government to respect peace and human rights. It will initiate to ratify the Statute immediately”. However, the Republic of Korea has not yet ratified the Statute.
Recently, the National Human Rights Commission sent an opinion letter urging the government to immediately ratify the Statute. On July 2, 2002, in a symposium organized by NGOs to celebrate the entry into force of the Rome State, government officials from the Ministry of Foreign Affairs and Trade and from the Ministry of Justice expressed their will that the South Korean government would join the party states within the end of this year.

Domestic/International Political situation of the Republic of Korea
Even with all this will of government officials, it is believed that there are some obstacles to ratifying the Statute within the end of the year. Article 60 of the Constitution of the Republic of Korea provides that the National Assembly shall have the right to consent to ratification of treaties. It is expected that the process of consent to the ratification in the National Assembly will face many difficulties, which are related to the domestic political situation. A regular session of the National Assembly will be held from 1 September until 31 December. At its first part, lawmakers will ask all ministers of the government for their answers. After that, lawmakers will inspect affairs of state or investigate specific matters of state affairs. At the last part of the session, lawmakers will deal with the bill, budget bill, and matters of consent to the ratification. It is our experience that many important bills are not passed within that period. To make matters even worse, the presidential election will be held in December. Thus, all parties and lawmakers will be concentrating their efforts on winning the election. Under this situation, lawmakers might neglect the ratification of the Statute by immersing themselves only in political warfare. In addition, the ruling party is a minority in the Assembly. We are worried that the opposing party might be against the Statute because of its conservative nature. The Statute’s relationship with the U.S. and the huge financial burden might be the pretext for the opposing party’s objection.
It is important that we briefly mention the relationship with the U.S. The U.S. is worried that if the Republic of Korea ratified the Statute, the ICC will exercise jurisdiction on ICC crimes that the U.S. army committed in the Republic of Korea according to Article 12 of the Statute. Two years ago, Madeleine Albright, the Secretary of State at that time, visited the Republic of Korea and had a meeting with Lee Jung Bin, the Minister of Foreign Affairs. It is reported Ms. Albright requested that the South Korean government express opposition to the ongoing ICC establishment movement and not ratify the Statute. Recently, this attitude of the U.S. has somewhat changed. The U.S. does not appear to explicitly object to the South Korean government’s ratification. Nevertheless, it is believed that the U.S. would implicitly pressure the South Korea government out of ratifying the Statue. The conservative opposition might be either against the ratification, or delay dealing with the process of consent in spite of government and ruling party’s efforts.

The Issue of Implementing Legislation
Article 7 of the Constitution of the Republic of Korea provides that treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea. Meanwhile, the Rome Statute imposes the state party several duties to make domestic laws. That is, as the ICC has complementary jurisdiction, each state party has the duty to establish judicial systems to investigate and try the crimes of the Statute. Therefore before the government ratifies the Statute, it should have implementing legislation prepared. In preparation for implementation, the government first reviews contradictory points between its Constitution and the Statute. The Constitution of the Republic of Korea provides that the President shall not be charged with a criminal offense during his/her tenure of office except for insurrection or treason. This provision can be contradictory to the Article 27(1) of the Statute. In order for the South Korean government to ratify the Statute without amending the Constitution, the theoretical background to solve this contradiction is necessary.
In addition, for the implementation of the Statute, states may make a single special legislation that covers every aspect of implementation or amend all relevant pieces of their existing legislation, such as the Criminal Act, Criminal Procedure Act, Extradition Act, and International Judicial Mutual Assistance in Criminal Matters Act. However, the South Korean government still seems not to have decided which of the above two ways it will choose. Thus it is doubtful if the South Korean government will fulfill the implementation within a few months.

Activities/ Role of NGOs
Aforementioned problems regarding the ratification of the Statute indicates what needs to be done by South Korean NGOs. First of all, NGOs should play an important role in campaigning to raise public awareness on the ratification of the Statute and the establishment of the ICC. If there is a strong demand from the public for the ratification, the National Assembly will speed up the process of consent and lawmakers will not be able to neglect the ratification matter despite their political warfare in advance of the presidential election. The strong demand of the public will also be a good backing against any explicit or implicit pressure from the U.S. government.
Although most human rights NGOs in South Korea realize the importance of the ICC, only a few NGOs such as Amnesty International Korea Division have been involved in the research and campaign for the ICC. Unfortunately, there are no NGOs or NGO coalitions that focus their efforts on campaigning for the ICC. One of the reasons civic groups in South Korea are not as active in this matter is that no one expected the Statute to enter into force this early. Another reason is related to Article 11 of the Statute, which provides that the ICC has jurisdiction only with respect to crimes committed after the entry into force of the Statute. Under the 30-year military dictatorship, a large number of crimes against humanity had been committed in South Korea, and most of them were not punished. Although truths and evidences of those crimes have been disclosed since the withdrawal of the autocratic government, those crimes are not still punished due to the statutory limitations. Since last year, human rights NGOs in South Korea have been in full activity for the non-applicability of the statutory limitations over the crimes against humanity committed by the State. The problem is that they are worried the movement for the ratification of the ICC might cause decentralization of their capacity. There is also an opinion that the ratification of the Statute would become a good excuse for the offenders of those crimes, and lead to immunity for them.
The entry into force of the Rome Statute on July 1, 2002, was a turning point for South Korean civic groups, and it is expected that they will have more concern for the ratification process of the Statute of the government. Recently, in celebration for the entry into force of the Statute, MINBYUN delivered a statement in order to urge the South Korean government to immediately ratify the Statute and to draw the attention of the public to the issue of the ICC. MINBYUN has plans to publish handbooks on the ICC and its implementation, raising public awareness in cooperation with other NGOs. We hope our activities give great impetus to the Republic of Korea to join the efforts of the international community to address impunity and other human rights problems in the world, especially in the Asian region.

MINBYUN-Lawyers for a Democratic Society
5F, Sinjeong B/D, 1555-3, Seocho-dong, Seocho gu, Seoul, Republic of Korea
http://minbyun.jinbo.net m321@chollian.net