By Arianna Russano
On March 26th 2010, a Republic of Korea navy ship named “Cheonan” sank in the Yellow Sea, killing 46 South Korean personnel. An International investigation initiated by South Korea and constituted by the United States, Australia, the United Kingdom and the Kingdom of Sweden had reached a conclusion on the responsibility of the Democratic People’s Republic of Korea (DPRK) for the sinking for having fired a torpedo against the Cheonan, by claiming that “the evidence points overwhelmingly to the conclusion that the torpedo was fired by a North Korean submarine. There is no other plausible explanation” (The Joint Civilian-Military Investigation Group). However, North Korea countered involvement in the matter, and despite the investigations, was not publicly held responsible by the United Nations Security Council largely due to the support of the People’s Republic of China, permanent member of the UN Security Council holding veto power. On November 23rd of the same year, four people lost their lives on the South Korean Yeongpyeong Island, near the maritime boarder where the Cheonan warship was attacked, because of the firing of artillery shells by DRPK. This time, North Korea accepted responsibility. The attack led South Korea to respond by firing rockets back at DRPK, although the number of victims has not been reported. The assault on Yeongpyeong Island in 2010 was the first official attack by North Korea to South Korea that openly targeted civilians since the signing of the Korean Armistice Agreement in 1953, and induces many to believe the two incidents are related and that the Cheonan was a “deliberate, well planned act of violence” (Bechtol Jr. 1), revealing “a different aspect of the current inter- Korean relationship” (Snyder 74). After the signing of the Armistice Agreement in 1953, North Korea adopted an unfriendly military strategy consisting in numerous infiltrations into South Korea mostly up to the 1970s. The infiltrations decreased “as South Korea’s power increased in comparison to its northern neighbor” (Snyder 74). During the 1990s, there had been several maritime conflicts among the two countries which were dealt with privately among the two Koreas. In 2010, “the Cheonan and Yeonpyeong provocations marked a dramatic escalation of confrontation” (Snyder 74), involving major allies such as United States, People’s Republic of China and Russian Federation as well as other States. Due to the exceptional state in which the two Koreas find themselves, it is complex to determine whether the laws of Jus in bello apply to the Cheonan case. An analysis of official reports by sources such as the International Criminal Court, the Joint Military Investigation Group and the Korean War Armistice Agreement itself will serve useful in attempting to discern whether Jus in bello ought to be applied to the Cheonan and Yeongpyeong attacks. The tensions generated by the Cheonan and Yeongpyeong occurrences extensively influenced relations between the major protagonists being South Korea, North Korea, China and the United States of America, besides shaking general North-East Asian relations as well.
The globally unclear status of the relations between the Republic of Korea and the Democratic People’s Republic of Korea has complicated and still creates dilemmas up to this day on the International laws that apply to situations relative to the Korean Peninsula and inter-Korean relations. Whether the Armistice Agreement for the Restoration of the South Korean State of 1953 has put a firm end to the belligerent state of the two nations is even now contentious. It must be noted that if the two States are not at war, both of the occurrences of the Cheonan and on the Island of Yeongpyeong would be in violation of one of the basic principles of International Law being Article 2 Section 4 of the United Nations Charter which binds both ROK and DPRK and recites: “All Members shall refrain in their International relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”, most importantly being in this case “to maintain International Peace and Security” (UN Charter, Art 1(1)). North Korea’s use of force on South Korea does not fall under the exceptions which allow the use of force in the International arena being in self-defence (UN Charter, Art 51) or with UNSC authorization as expressed in the Articles listed under Chapter VII of the UN Charter. The United Nations have in fact acknowledged the illegality of the actions against the Republic of Korea in a presidential statement issued on July 9th 2010 which quotes: “the Security Council condemns the attack which led to the sinking of the Cheonan” and “takes note of the responses from other relevant parties, including from the Democratic People’s Republic of Korea, which has stated that it had nothing to do with the incident”.
Following the attack on the Cheonan and of the Yeongpyeong Island, the incidents were presented to the International Criminal Court (ICC), an “independent and permanent court” based on the Rome Statute (1998) which can adjudicate and provide penalties to individuals accused of “the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes” (International Criminal Court).
However, in order for the ICC to take the matter into account, the states involved ought to have been concerned with actual war crimes, meaning in an unquestionable state of war. In order for war crimes to be appropriately punished, “the sinking of the Cheonan and the attack on Yeonpyeong Island must have occurred during a war or an armed conflict, as distinct from a border clash or an internal disturbance” (Nam 2). ROK and DPKR have signed the Armistice Agreement for the Restoration of the South Korean State in 1953, which marked the end of the Korean War that had begun in 1950 with the Invasion of South Korea from North Korea. The Armistice Agreement is, however, not an actual peace treaty, thus “the effect of the Armistice on the legal status of the conflict, and the applicability of the laws of war, are ambiguous” (Nam 2). If the legal status of the relations between ROK and DPRK remains unvaried since 1950 and therefore in a state of war, then the laws of jus in bello would apply to the Cheonan and Yeongpyeong attacks and the ICC would have the authority to take the case into consideration. Conversely, if the signing of the Armistice has annulled the war status between the states, then the belligerent rights no longer apply to the cases and the ICC would thus not be able to condemn the parties responsible for what appears to be war crimes. In this case, the attacks would be considered crimes of aggression, as expressed in UN General Assembly Resolution 3314, Art 1 that states: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. Article 3 of the same resolution lists a series of instances that are to be considered crimes of aggression. The Cheonan and Yeongpyeong attacks would fall under Art 3 (b): “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State” and Art 3 (d): “An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State”. As far as war crimes are concerned, according to the Rome Statute adopted by the ICC the conditions necessary for accusing North Korea of such crime in the Cheonan incident would be “intentionally directing attacks against the civilian population” (Art. 8(1)) as well as “objects which are not military objectives” (Art. 8(2)). As demonstrated in a report on the Situation of the Republic of Korea Article 5 issued in June 2014 by the International Criminal Court, considering that the victims of the Cheonan were all military personnel, “[I]f this incident was a result of a military attack, it was not a violation of any of the provisions in Article 8 of the Rome Statute.” (Section 13). As far as the Yeongpyeong shelling is concerned, since civilians were killed besides military personnel, the difficulty arises in assessing whether the killing of civilians was intentional, in which case it would violate Article 8(2b) of the Rome Statute, or if the civilian victims are to be considered excessive incidental death. However, the Armistice Agreement was an actual ceasefire, and attacks on the Cheonan and the Yeongpyeong suggest that “the DPRK intentionally betrayed the ROK’s confidence that the Armistice was still in effect” (ICC Article 5 Report (14)).
In support of the assumption that the Armistice Agreement of 1953 does not constitute a nullification of the war status in the Korean peninsula are the numerous failed attempts to sign a peace treaty between the parties. The Armistice Agreement itself declares in its preamble that it will “insure a complete cessation of hostilities and of all acts of armed force in Korea until a final peaceful settlement is achieved”, suggesting that war is still present. Attempts to sign a Peace Treaty have been initially initiated by the Republic of Korea both at the Geneva Conference in 1954 and in the Four-Party Talks in 1997, without success. Successively, it has been the Democratic People’s Republic of Korea that has asked for a peace treaty, but “official statements by the ROK and United States have stated that signing a peace agreement is conditional on North Korea dismantling its nuclear weapons program” (Nam 4), following North Korea’s withdrawal from the Nuclear Non-Proliferation Treaty in 2003. The withdrawal led to the creation of Six-Party Talks aimed at finding a peaceful resolution to North Korea’s nuclear weapons program. The parties involved in the Six-Party Talk are the Democratic People’s Republic of Korea, the Republic of Korea, the United States of America, the People’s Republic of China, the Russian Federation and Japan.
In support of the conditions necessary for a peace treaty among the two Koreas and in regards to the Cheonan incident, the European Parliament has encouraged the denuclearization of North Korea in its Resolution of 17 June 2010 on the situation in the Korean Peninsula, in which it announced that “the EU strongly supports the denuclearization of the Korean Peninsula, and considers the resumption of the Six-Party Talks to be essential for peace and stability in the region” (Art. L) as well as “calls on the countries involved in the Six-Party Talks to continue working together to ensure that the talks on ending the DPRK’s nuclear programme are resumed” (Art 9). In 2009 Steven W Bosworth, a United States special representative for North Korea, claimed that “the United States would discuss a peace treaty and other incentives only when the process of denuclearizing the Korean Peninsula had gained “significant traction.”” (Nam 4), meaning clear signs of willingness and actions towards denuclearization must be present before a peace treaty can be taken into consideration. However, North Korea feels threatened by the fact that both South Korea and Japan are under the United States’ nuclear protection, besides having US troops on their territory. This may be one of the reasons why North Korea has still not taken the necessary actions in order to carry out a peace treaty with South Korea and end hostilities. Despite this, Russia also encourages the denuclearization of the Korean Peninsula through the Six-Party Talks, as Russian Foreign Minister Lavrov admits to being “ ‘deeply concerned’ about the inter-Korean situation” (Snyder 79). Nonetheless, the Cheonan and Yeongpyeong incidents demonstrate that tensions are still present in inter-Korean relations, and “with the US and Japan backing South Korea, and China and Russia unwilling to abandon North Korea, the Cold War-style political and strategic divide persists in Northeast Asia” (Zhiqun 16).
Inter-Korean relations threaten peace and security in North East Asia, and at stake are mostly the relations between the two Koreas, China and Japan.
In the case of China, since August 1992 it has adopted the “two Koreas” policy, keeping its traditional economic and political relations with North Korea intact, yet getting exponentially involved in political, cultural, economic and educational relations with the South. According to Gordon G. Chang, South Korea currently has “strong trade and investment flows with Beijing” which may however lead to “falloff in economic linkages” (Pearson; Chang 20) if its relations with China deteriorate both as a consequence of direct disputes and, as pertaining to this case, through North Korea. The political sphere may likely be undermined as well in North East Asian relations due to the Cheonan and Yeongpyeong case. As a matter of fact, China is not keen on US presence in North East Asia, specifically in South Korea and Japan, yet “Cheonan and Yeonpyeong incidents has given Japan and South Korea (and countries in Southeast Asia) an additional reason to welcome a continued US forward deployment in Asia” (Zhiqun 18). The incidents have also “put the China-North Korea relationship in the global limelight and exposed the dilemma China faces in dealing with North Korea” (Zhiqun 16), emphasizing the contradictions present in China’s management of North Korea, on the one hand promoting participation of East Asian countries with North Korea to placate the crisis, on the other hand unwilling to recognize North Korea as the initiator of the crisis. North Korea however constitutes an economic and political burden for China, consuming great part of China’s resources and preventing China from pursuing many international and diplomatic relations where it ought to appear as an open and dynamic society, while the “shared communist ideology [with North Korea] seriously tarnishes China’s image” (Zhiqun 18). However, for DRPK, China is the biggest trading partner, most important ally and main fount of food and fuel. What keeps China’s relations with North Korea strong, besides ideology, is the rich presence of mineral resources in the country. It is in China’s interest to improve relations between the two Koreas and mostly to persuade North Korea to abandon its nuclear program, one reason why it is a member of the Six-Party Talks, as China is the power with the majority of nuclear neighbors in the world. North Korea constitutes a threat for all East Asia, where “a nuclear arms race in East Asia is a real possibility” (Zhiqun 17). For Japan, the Cheonan incident appeared to be a warning about the threat North Korea embodies for North East Asia, and led Japan to improve security cooperation with South Korea. Japan’s relations with the United States were also strengthened, as stated by Foreign Minister Katsuya Okada: “the importance of the Japan-US alliance is increasing amid the unstable and insecure situation in East Asia, with incidents like the sinking of the South Korea warship” (Snyder 79).
The Cheonan and Yeongpyeong incidents have had weighty consequences for North East Asia and International relations, mainly because of the aggravated tensions present in the Korean peninsula. The unclear status of the relations between North and South Korea complicates the process of determining whether attacks between the two countries, particularly against the Republic of Korea in the Cheonan and Yeongpyeong cases, ought to be considered unauthorized armed attacks, war crimes or are conversely in respect of Jus in bello. As noted throughout the current paper, the Korean War Armistice Agreement was not a peace treaty, and due to this the relations between ROK and DPRK are therefore still of war. This entails the laws of war (jus in bello) to be in effect, and the attacks to be subject to questioning whether they constitute war crimes. As reported by the ICC when requested to take the cases into consideration, there is lack of evidence proving the incidents to be labeled as war crimes:
“Regarding the Cheonan, the conclusion is that the alleged attack was directed at a lawful military target and would not otherwise meet the definition of the war crime […]. Regarding the shelling of Yeonpyeong Island, the conclusion is that even though the shelling resulted, regrettably, in civilian casualties, the information available on this incident does not provide a reasonable basis to believe that the attack was intentionally directed against civilian objects […]. The Prosecutor has therefore concluded that there is no reasonable basis to initiate an investigation” (ICC)
The two cases have emphasized the connection between East Asian stability and inter-Korean tensions, “in ways that underscore the need for a unified regional approach to the management and resolution of inter-Korean tensions that might presage or result from North Korean instability” (Snyder 80). Six Party Talks attempting to persuade North Korea to adopt the measure of denuclearization for the establishment of a peaceful status between the two Koreas and a general North East Asian stability are in the interest of many neighboring states and major powers. A unified approach and cooperation between countries in the region is a necessary step for handling tensions between North and South Korea.
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