Well, that is part of it, but there is a calculus of considerations involved. The situation seems to be quite different from what we’d see if the town was built around a garrison and there was a significant military advantage to be gained by attacking it that outweighed collateral damage. There is also an interesting history of precedents having to do with distributed vs condensed military positions around cities, and so on. But this is far past the scope of this thread, which is only NK’s recent attack on Yeonpeyong Island. If you’d like to start another thread on it I might stop by.
Meh, I was just wondering if you’d take the bait.
In any case, the issue of whether the Norks improperly targeted the island is, in my mind, a trivial issue compared to the fact that they made an unprovoked attack on the island at all.
However, if one were to follow the math you laid out in the OP, I’m not sure the Norks would ever be allowed to fire on the island, even in a real hot war. Even unguided artillery at that range would probably have a 100-200+ meter CEP, seeing as how I don’t think the Norks are capable of being more precise. I don’t think a 200 meter CEP would qualify as being “completely incapable” of targeting a valid military objective, since the cites you have chosen to use seem to use the V-2 as the standard for an indiscriminate attack. A V-2 had a CEP measured in multiples of kilometers. So, if the reference point for an inaccurate weapon is one which may miss by kilometers, and the Norks use a weapon which may miss by football fields, I’m not sure you’ve nailed them on this one.
Sounds like Hiroshima and Nagasaki were war crimes.
Only from Japan’s point of view.
Your entire argument seems to require the first point. The trouble is, you don’t have sufficient evidence to support it. We don’t know whether North Korea knew where on the island the artillery was —it’s not like they have satellite surveillance to play with —or, if they did, whether the local commanders knew where on the island it was. More importantly, we don’t actually know where the artillery was aiming —as your own Wiki cite said, the distribution of the shots is not normal, and there may be bias (i.e. they may be shooting off their target).
As for the second point, that determination is plainly covered by proportionality. But as many soldiers were killed as civilians, which doesn’t speak well for such an argument. As you know, 1:1 ratios are not that high in modern conflicts.
Here’s a query. I really don’t see what difference it makes that North Korea also claims the island in question. What matters is that there is a civilian community, a South Korean civilian community, which the North attacked. How on Earth could anyone consider that to be an acceptable action?
Most people would not consider it to be an acceptable action. However, under the laws of war, civilian casualties and even attacking civilians directly may be acceptable. So a lot of it depends on the type of weapon used, if the civilians were true civilians (and not actively engaging in combat) and if the civilian casualties are considered proportional to the military objective of the DPRK. Note, I’m not saying that all, or necessarily any, of these qualifications apply to this situation.
It’s definitely a war crime but seriously, what can we realistically do about it?
Kim Jong is crazy in the medical sense. He was at the battery site an hour before the attack so the event appears to be premeditated murder. He is constantly threatening SK and in the last year has sunk a boat and launched an attack against a civilian populated area.
Now he is threatening a nuclear attack. He is making a case for a preemptive strike.
Yeah, those little kids living there and going to the elementary school there aren’t true civilians. At least evidently not according to the DPRK.
Isn’t it worth a few deaths here and there to prevent all-out war in the Korean penninsula, the possible annihilation of Seoul, tens of millions of refugees streaming across the Chinese and South Korean borders, and a war that the US will have to be involved in for years, possibly decades to come?
Them’s the stakes. Not a few islands, a boat here and there, and some lost pride.
In almost all instances, obviously children going to school would be considered civilians. So, then questions under the laws of war include:
-Were children casualties?
-Were children targeted?
-Was a school targeted? A school being targeted is in many instances going to be considered a war crime.
It seems Geneva Conventions Protocol I would be the most relevant legal framework for taking the next steps in evaluating how the DPRK’s actions violated international law.
One further flaw with your reasoning, FinnAgain, is that it disregards an important limitation on the ICC’s jurisdiction. Basically, your step 10 is missing a crucial showing of admissibility:
Under Article 17(1)(d) of the Rome Statute, the “Court shall determine that a case is inadmissible where… [t]he case is not of sufficient gravity to justify further action by the Court.” The Prosecutor’s office has recently interpreted this section to mean that several incidents involving the killing of Iraqi civilians by US soldiers were not grave enough to warrant “war crimes” charges. Thus, unless you can differentiate these incidents, it does not appear that the Court would choose to prosecute in this case.
This point is important since you have explicitly included the ICC in your analysis, thus indicating that this is not merely a hypothetical exercise based on the Rome Statute alone. If your analysis relies on the ICC, then you will need to include additional steps demonstrating that the Court would in fact choose exercise its jurisdiction in this matter. If you take the ICC out, then your argument collapses due to the simple fact that North Korea never signed onto the Rome Statute.
Pride has nothing to do with it. He is mentally ill and has continued on a path to war. SK has to weigh the reality of a nuclear war with a crazy man.
Could possibly be. Can you please elaborate on your interpretation of events and possible applicability of specific statutes?
Truth be told, I’d rather that discussion be held in another thread as it’s beyond the scope of this thread and adds in far, far too many factors.
Shocking, and unexpected!
The V-2 was given as an example from precedent. I have, however, cited the fact that the Grad is impossible to use to attack point-targets. Additionally, I have not seen anything, at all, to substantiate a claim that not having more precise weaponry obviates the need to not use indiscriminate weaponry. Do you have a cite to support the idea that if NK has no weapons that are more precise, they can use unguided rockets?
Additionally, it seems that the use of various weaponry would depend on the location of SK troops, whether they were spread out or concentrated, whether the concrete military advantage expected from the attack would outweigh the collateral damage, and so on. It also seems that, for instance, indiscriminate weaponry may be acceptable if there are no civilians within its sphere of impact; rocket fire that blankets a 3km circle in the empty desert with only enemy soldiers within it would seem to be a significantly different situation.
Not positively identifying a target and raining down fire on an entire area is not an excuse, in point of fact that’s part of what might make an attack indiscriminate. Nations have a responsibility to identify and direct their attacks against military targets. I also would not wager that NK has been unable to observe the position of SK’s military base on the island from several miles away. Satellites aren’t necessary.
Certainly possible. But absent testimony from NK officers, we most likely won’t ever gain that information. The evidence that we do have seems, to me, to be compelling. Not making sure of your targeting before you fire 200 rockets, for example, would seem to qualify as indiscriminate fire.
The ratio alone doesn’t determine proportionality. Again, by NK’s own public statement, the anticipated benefit that they sought from their attack was to “cope with” SK’s artillery shells falling into open water. Raining down death and destruction on the entire island is “clearly excessive” in relation to NK’s expected military advantage, coping with SK’s shells falling in the open ocean.
I would add to your summary of events the key fact that the DPRK (and ROK) are both engaged in armed international conflict. Technically, of course, the DPRK is at war with the UN, but under no analysis would either country be found to not meet the armed international conflict standard. I do not doubt your recounting of events, but I think you need to reassess your analysis of what constitutes a war crime.
First, during war it is not *per se *unlawful to kill civilians. Civilian casualties are understood to be a part of war. The law of war (or law of armed conflict, as it is called in the US) focuses on minimizing deaths to civilians. However, even under the Geneva Conventions and/or the Rome Statutes, civilian deaths may be completely acceptable.
As already mentioned by other posters, it is difficult to imagine a scenario where the killing of several civilians would be considered a war crime under the Rome Statutes. The Rome Statutes created the ICC with very specific jurisdiction over the crimes of genocide, crimes against humanity and war crimes. One interesting thing about the ICC is that they do not have jurisdiction over a case that a State already has jurisdiction over (see Art.17(1)(a)(b)). Does the ROK have legal jurisdiction over DPRK? Practically speaking, of course not. But they may have a legal claim and right to prosecute Kim Jong Il directly for attacking two civilians on their territory. If a case could be brought on behalf of those civilians in ROK courts, it could mean that the ICC has no jurisdiction.
Certainly, there are other very strong arguments for war crimes and crimes against humanity in particular that could be brought against the DPRK/ KJI, but I think that it would be extremely difficult to qualify the recent attacks as either.
The reason that the ongoing conflict between the DPRK and ROK are key is that the Geneva Conventions Additional Protocol I automatically kicks in. (A much more complex situation is one that happens every day, largely in Afghanistan and Pakistan, where questions of international armed conflict are unclear and civilians engaged in battle are a huge component of military operations). Both the DPRK and ROK are signatory to this Protocol. DPRK has maintained some important reservations to the Protocol. Based on a preliminary assessment of the DPRK’s reservations, I do not see anything that would specifically address the current situation. However, a thorough analysis would include careful study of their reservations. The reason for this is that under treaty law, if a nation has made reservations to a treaty consistently, those aspects of the treaty may not be enforced against that nation even if the treaty is considered to be globally applicable. So whether or not the DPRK is a signatory to some statute or protocol is not as much of a concern as if they are a signatory, having always maintained that some aspect of the treaty does not apply.
Protocol I requires combatants/militaries to take reasonable measures to avoid unnecessary civilian casualties. It forbids direct or indiscriminate attacks against civilians. It permits civilian casualties as far as necessary to achieve military objectives. Civilians are not allowed to be the object of the attack.
Of course, there are important questions to be asked about any civilian deaths during wartime, derived from both Geneva Conventions Protocol I and customary international law:
-How is a civilian casualty judged to be necessary or unnecessary?
-What is an indiscriminate attack against a civilian and who gets to decide?
-Was the attack proportional?
-What military objective was necessitated with the recent attacks by the DPRK?
-Were civilians the objects of the attack?
The only one of these items I can clearly comment on is the last point. There is no evidence that civilians were the object of the attack. There is no reason to think that the DPRK was targeting civilians. I’d be interested to see otherwise.
Since the Dear Leader was at the battery site an hour before the attack and it wasn’t in response to any threat it was premeditated murder regardless of whether they intended civilians to die or not.
Under international law, no.
Of course South Korea can proceed with whatever charges they want, but I seriously doubt that meets the definition of premeditated murder in almost any jurisdiction.
Is there anyone outside North Korea who doesn’t think it was an unprovoked attack?
While you can argue whether or not they are in a state of war the act that Kim Jong IL committed was just that. He’s crazy and his behavior is getting worse and his toys are getting bigger.