PSPD in English UN Advocacy 2001-10-31   988

ICC and its Implications for Korea

ICC and its Implications for Korea

Kim Gee-Hong(Attorney at Law, Horizon Law Group)

 

Introduction

Before starting my presentation, I want to make it clear that my presentation is based on my personal opinion. Even among the Korean participants, we couldn’t spend enough time to discuss about the subject and come up with a consensus. So please listen to my presentation as a personal opinion on the subject.

The subject assigned to me is “ICC and its implications for Korea”. It’s a bit too general so I am afraid that I might have misunderstood the intention of the host of this workshop. I think there are three issues that must be mentioned about Korea. First is the situation of Korea about ICC ratification, second is the historical meaning of ICC establishment, and last is the implications of the ICC for the present and future of Korea.

1. The Situation of Korea Relating to ICC Ratification

(1) Korea signed the Rome Statute on March 8, 2000 as the 95th signatory state. The Korean government was taking a positive attitude toward the establishment of the ICC. As a member of the “Like-minded Group”, the Korean government took part in making the provisions of the Statute and preparing the “1998 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court”.

(2) As for the ratification of the Rome Statute, Korea still has not ratified the Statute. Under the Korean Law, there is no need to amend the Constitution for ratification of the Statute. The President has the authority to ratify the Statute with the consent of the National Assembly. Although there must be some amendment of domestic laws beforehand, such as the Extradition Act, or International Judicial Mutual Assistance in Criminal Matters Act, I believe there is no big problem in amending such laws to accommodate the Rome Statute. So, I can say that ICC ratification fully depends on the will of the Korean government, or the Korean people.

(3) In my opinion, one of the obstacles that is hindering the Korean government from ratification is the pressure of the United States. It is well known that the United States opposes the establishment of the ICC. Actually Madeleine Albright, the Secretary of State (at that time) visited Korea and had a meeting with Lee Jung-bin, Korean Minister of Foreign Affairs last year. It is known that in that meeting Ms. Albright requested the Korean government to express opposition to the ongoing ICC establishment movement and not to ratify the Statute. According to an official working at the Ministry of Foreign Affairs, the bill for the ICC ratification which was scheduled to be submitted to the National Assembly in January this year, was postponed indefinitely because of U.S. pressure.

(4) To overcome the pressure of the U.S. and to have the Korean government ratify the Statute, I think it is the concern and the efforts of the Korean people that count. With disinterested Korean people, the Korean government would never feel any need to hurry in ratifying the Statute in the face of U.S opposition. But sorry to say, there are only a few people in Korea who know about the ICC or the Rome Statute. I confess, even I did not know about the Rome Statute until I was asked to participate in this workshop. Amnesty Korea is the only organization in Korea that is making an effort to push for ratification by the Korean government. It is conducting a petition-mailing campaign on its website, but I don’t think it’s sufficient to move the Korean government. But I am sure that once the Korean people know about the ICC and what it can do, they will support it and demand the ratification of the ICC by the Korean government.

2. Historical Meaning of the Establishment of ICC

(1) The Korean people will agree wholeheartedly to the establishment of ICC, because they have experienced brutal crimes against humanity more seriously and more frequently than any other nation or people in the past, and now they feel strongly about the need for an international tribunal or some entity which can help them correct the wrongs done in the past.

(2) Now the Korean people are making efforts to bring to justice those who caused suffering in the authoritarian regimes of the past. We Koreans charged two ex-presidents and imprisoned them for a massacre in Korea. In 1980, Chun Du-hwan and Noh Tae-woo, military generals at that time, made a military coup, and they killed hundreds of civilians protesting against the coup and their enforcement of martial law in the city of Kwang-ju. (Now it is called the “Kwang-ju Strife for Democratization”, but before it was just called the “Kwang-ju Incident”). Treading on the blood of the civilians, they became presidents of Korea and wielded power for about 12 years together. But through the sacrifice of numerous lives of protesters, we stopped the tyranny caused by such regimes and restored democracy to Korea. And at last we made them stand trial for the massacre and punished them with life-time imprisonment. But sorry to say, the next president, Kim Yong-sam, pardoned them. I think it was the limit of the Kim Yong-sam’s government from the outset. Anyway it was a historic event of Korea to have the dictators punished. And I believe, by this experience, the chance of Korea producing another dictator became far less, because the politicians, or any one who wants to have power, are now well aware that they can’t escape justice, and the people also know very well that they can inflict punishment even on the presidents.

(3) But the Korean people were not always successful in these efforts to clean up the past. Actually there are several historical issues we must solve. One is the crimes committed by the Japanese Imperialistic regime, such as “Comfort Women” or the “jugun ianfu” Issue. As you know, the Japanese military regime forced about 20,000 Asian women and young girls to provide sex to Japanese soldiers. But these horrible crimes are passing by without any conviction. In December 2000, in Tokyo, several Asian NGOs set up an international ad hoc tribunal and put this case on trial. It had a symbolic meaning but it had no power to execute the sentences. Had the ICC been created earlier, this case would have been tried at the ICC.

Another historical issue is the war crimes committed during the Korean War, such as the Massacre at No-gun-ri by U.S. troops. In late July 1950, in the conflict’s first desperate weeks, U.S. troops killed hundreds of South Korean refugees, many of them women and children, trapped beneath a bridge at a hamlet called No-gun-ri. Of course nobody has been punished for this massacre and the U.S. government didn’t even admit or apologize for the act. According to a military law expert, it was one of only two known cases of large-scale killings of noncombatants by U.S. ground troops in U.S. history. The other was Vietnam’s May Lai massacre in 1968. But I assume that the U.S. military must have committed far more unknown war crimes. If the U.S. ratifies the Rome Statute and the relevant soldiers can be brought to trial in the ICC, violence committed by US soldiers will diminish dramatically. Besides the massacre at No-gun-ri, it is reported that more than 600,000 civilians were killed for no justifiable reason by the Korean army, police and right-wing or left-wing organizations. The victims and their families have been compelled to keep silent about such massacres and the military dictatorship suppressed the movement to recover the honor of such victims. But these days in Korea, many descendants of such victims are requesting the government to investigate the true nature of such victims’ deaths and the government is currently under pressure to legislate laws related to uncovering questionable deaths during the Korean War.

(4) Although the ICC will not have jurisdiction over the crimes committed before the entry into force of the Statute, I am confident that the establishment of ICC and the spread of human rights consciousness will help solve these kinds of historic problems and injustice.

3. Implication of the ICC to the Present and Future of Korea

(1) Last but not least, I have to mention the implications of the ICC to the present and future of Korea. I believe, or I hope to believe that the Dark Age of Korea has passed. But who knows the future? We have to prepare for rainy days. That’s why Korea and even so-called advanced countries need to ratify the establishment of the ICC.

(2) There are two possibilities when crimes against humanity could occur in the future in Korea. One is the possibility of the reoccurrence of a second Korean War or armed conflict between North Korea and the U.S., like the Iraq attack by the U.S. There are still tens of thousand of U.S. armed forces in South Korea, and annually they have a large-scale military drill called “Focus Lens”; actually it must be going on in Korea right now. And after George W. Bush became the president of the U.S., military tension between North Korea and the U.S began rising. If by any chance military conflict happens again, there are no guarantees that the mass killings of 50 years ago would not happen again.

Another is the possibility of genocide or crimes against humanity in the process of reunifying the two Koreas. I anticipate that the reunification of Korea is not far away but I am not sure we are ready to reunify. We fought each other furiously during the Korean War and we have been separated too long. So in case of reunification, a lot of problems would spring up. Hostilities or discords between North Koreans and South Koreans might trigger a clash between the two groups and could result in genocide or crimes against humanity. I hope the existence of the ICC would deter people from committing such acts and prevent this kind of disaster from happening again.

Closing

On May 24. 2001, the National Human Rights Commission Act was passed through the Korean National Assembly after a lot of disputes and fights regarding the organization and function of the National Human Rights Commission. It will start operation this coming November. Many Koreans count on the Commission to help improve the Korean human rights situation. I hope this Commission will exercise its influence on the Korean government to ratify the Rome Statute.

* This was a presentation made at East Asian Workshop on International Criminal Court (ICC) held in Hong Kong, Special Administrative Region of China, 11 – 14 August 2001. The workshop was jointly organized by Asian Human Rights Commission (AHRC), Hong Kong, Special Administrative Region of China and the Asia Forum on Human Rights and Development (Forum-Asia), Thailand. At the Rome UNCP 1998, participating 160 countries have adopted Rome Statute on the establishment of ICC. NGO Coalition for an ICC campaigns for the establishment of an ICC. ICC will be a permanent court for trying individuals accused of committing genocide, war crimes and crimes against humanity. The ICC will be formally established after 60 countries have ratified the Rome Statute of the International Criminal Court. Republic of Korea became the 95th State to have signed the Rome Statute of the International Criminal on March 8, 2000. More information on the NGO Coalition for an ICC can be found at www.iccnow.org

 

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