International Legal Considerations on Individual Criminal Responsibility for Incumbent Heads of State

Abstract

This study examines the legal avenues under international law for holding the North Korean leadership, particularly the incumbent Head of State, individually criminally responsible for international crimes. To this end, it develops a four-step analytical framework consisting of (1) attribution of criminal responsibility, (2) immunity as a legal barrier, (3) exceptions to immunity, and (4) the feasibility of enforcement. The study first analyzes Article 28 of the Rome Statute and the jurisprudence of the ICTY, ICTR, and ICC to demonstrate that an incumbent Head of State may incur individual criminal responsibility for international crimes under the doctrine of superior responsibility, even without direct participation in the commission of the crimes, through ordering, aiding and abetting, or consciously failing to prevent or punish subordinates. It then examines the law of State immunity. While international law has evolved toward limiting immunity ratione materiae with respect to international crimes, immunity ratione personae continues to protect incumbent Heads of State, Heads of Government, and Ministers for Foreign Affairs from the criminal jurisdiction of foreign domestic courts. The study further argues, based on the Arrest Warrant case and relevant national jurisprudence, that universal jurisdiction and personal immunity operate at different analytical levels: the existence of universal jurisdiction does not, by itself, negate personal immunity. Applying this analytical framework to the North Korean human rights situation, the study concludes that although North Korea's status as a non-party to the Rome Statute creates significant jurisdictional obstacles to ICC proceedings, particularly in the absence of a referral by the United Nations Security Council, international criminal tribunals or hybrid tribunals possessing an international character provide a legally plausible means of overcoming the barrier of personal immunity enjoyed by an incumbent Head of State. In particular, it argues that establishing a Special Tribunal for North Korean Human Rights Violations within the Korean judicial system, pursuant to an international agreement between the Republic of Korea and the United Nations, could constitute a viable institutional alternative that reconciles the existing law of immunity with the imperative of accountability. By systematically examining the international legal framework governing the criminal responsibility of incumbent Heads of State and applying it to the context of North Korean human rights violations, this study seeks to provide a theoretical foundation for future discussions on international mechanisms of accountability.