The media often reports that the Korean Peninsula is ‘technically at war’, but there is still uncertainty surrounding the issue of whether the Korean Peninsula is, as a matter of law, in a state of war. This legal issue has now become particularly important as the International Criminal Court released a statement on December 6, 2010 in which it opened a preliminary examination of whether the sinking of the South Korean warship, the Cheonan, which was found to be a result of a torpedo attack from a North Korean submarine, and artillery attacks from North Korea that occurred near Yeonpyeong island constitute war crimes under the jurisdiction of the Court. In order for the two attacks to constitute war crimes, the laws of war – or jus in bello - must have taken effect at the time of the two confrontations. But with the conclusion of the Korean Armistice Agreement in 1953, questions now arise as to whether the two attacks can be considered to have occurred in the context of a “war” or an “armed conflict” under international law. This article, therefore, analyzes the concept of war and armed conflict, general legal effects of armistice agreements and the effect of declarations of war under international law in relation to the situation surrounding the Korean Peninsula. If these two military confrontations did occur in the context of a war or an armed conflict, the ICC could potentially punish the individuals responsible for the attack for committing war crimes. If such a nexus cannot be proved, however, it would be difficult for the ICC to pursue accountability of individuals responsible for the attacks.
War on the Korean Peninsula? Application of Jus in Bello in the Cheonan and Yeonpyeong Island Attacks,
U. Pa. E. Asia L. Rev.
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