Is the Shelling of Yeonpyeong Island a War Crime?: A Review under Article 8 of the Rome Statute of the International Criminal Court

The shelling of Yeonpyeong Island on November 23, 2010 committed by North Korea resulted in a number of casualties of South Korean marines and civilians as well as damages of military facilities and civilian objects. The incident is currently under the preliminary examination by the International Criminal Court (ICC). The purpose of this paper is to discuss whether North Korea’s attack on Yeonpyeong Island constitutes a crime falling within the jurisdiction of the ICC, particularly a war crime under Article 8 of the Rome Statute. In order for the shelling of Yeonpyeong Island to constitute a war crime under the Rome Statutes, either of paragraphs (i), (ii) or (iv) of Article 8(2)(b) should be established in case of an international armed conflict where North Korea is a state, while Article 8(2)(e)(i) should be established in case of a non-international armed conflict where North Korea is not a state. Article 8(2)(e)(i) provides the same crime as Article 8(2)(b)(i) with regard to an armed conflict not of an international character. Accordingly a discussion of Article 8(2)(e)(i) is not separately provided in the paper. The shelling of Yeonpyeong Island was the first direct artillery attack by North Korea on a civilian area in South Korea since the end of the Korean War in 1953, and now similar instances can happen again at any time in the future. Hence, this paper has important implications for possible similar instances.