Word is the Prosecutor of the International Criminal Court is launching an initial probe into the shelling of Yeonpyeong Island in South Korea last month and the sinking of the Cheonan Naval ship in March. Both incidents were alleged attacks by North Korea on South Korea. The question is: do these attacks constitute the kinds of crimes that are punishable by the International Criminal Court (that is, war crimes and crimes against humanity)?

That is not for the prosecutor to decide himself. Th prosecutor has discretion in whether or not to launch an initial investigation into the incident because South Korea is a member of the ICC. (In fact, a South Korean is president of the Court.)  Then, if the thinks there is cause and evidence that crimes against humanity were committed, he can apply for permission from ICC judges to open a case.

Even if the investigation proceed, it is hard to imagine that it will have much of an effect on the multitude of issues facing diplomacy with North Korea.  For one, it is not like North Korea will turn over its own to face trial in the Hague. But more to the point, what the prosecution of Sudanese president Omar al Bashir has shown is that the court has a pretty powerful isolating affect on targets of its prosecution. Bashir has been forced to cancel foreign trips for fear he would be arrested; foreign leaders refuse to participate in any event in which he’d show his face; entire conferences have had to shift locations to remain outside the jurisdiction of the ICC.  Those sorts of things.

North Korea, though, is already a supremely isolated government. Unlike Bashir, Kim Jong Il does not travel internationally and the DPRK has a very restrained presence internationally.  While the ICC proceedings have arguably affected the Sudanese government’s behavior, I doubt a similar effect will be felt in Pyongyang.

This is not to say that the Prosecutor shouldn’t follow the evidence to the ruling clique in Pyongyang. But it may be worthwhile to temper any expectations that ICC action against North Korea will lead to some sort of diplomatic breakthrough.

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