Substantive Work of the ICC Overview of cases and SituationsClosed preliminary examinationsAfter having conducted preliminary examinations,on four occasions, the Prosecution concluded thatthe information provided did not constitute areasonable basis for an investigation. In 2006, itdecided not to proceed with formal investigationsin Iraq and Venezuela, 402 and in April 2012, itdeclined to proceed in Palestine. 403 Furthermore, asdescribed below, in June 2014, it found that therewas no reasonable basis to proceed with a formalinvestigation in the Republic of Korea. 404Republic of KoreaOne preliminary examination was closed duringthe reporting period, that concerning the Republicof Korea. This examination, which was initiated in2010, concerned two incidents: (1) the shelling byNorth Korea of the Republic of Korea’s Yeonpyeongisland on 23 November 2010, allegedly resultingin the killing of two civilians and two marines,the injury of 50 civilians and 16 marines, and thelarge-scale destruction of civilian and militaryfacilities; and (2) the sinking of the Cheonan, aSouth Korean warship, by a torpedo allegedly firedfrom a North Korean submarine on 26 March 2010,which resulted in the death of 46 sailors. 405402 ‘OTP response to communications received concerningIraq’, OTP, 9 February 2006, p 9, available at ; ‘OTP response tocommunications received concerning Venezuela’,OTP, 9 February 2006, p 4, available at . See further GenderReport Card 2012, p 96.403 ‘Update on Situation in Palestine’, OTP, 3 April2012, paras 4, 6, 8, available at . See further Gender Report Card 2012, p 96-97.404 ‘Situation in the Republic of Korea: Article 5 Report’, OTP,June 2014, para 82, available at .405 ‘Situation in the Republic of Korea: Article 5 Report’,OTP, June 2014, paras 2, 6-7, available at . See also Gender Report Card 2011, p 136.Regarding the former incident, the Prosecutionreasoned that while military objects and personnelare legitimate military targets, it was necessaryto look at the impact of the alleged crimes oncivilians to determine whether their targetingwas intentional or resulted in ‘excessive incidentaldeath, injury or damage’. It decided that althoughthe shelling resulted in regrettable civilian deaths,available information did not provide a reasonablebasis to believe that the civilian populationor civilian objects were intentionally targetedpursuant to Article 8(2)(b)(i) or (ii) of the Statute,or that the anticipated civilian impact would havebeen clearly excessive vis-à-vis the anticipatedmilitary advantage pursuant to Article 8(2)(b)(iv) ofthe Statute. 406Concerning the latter incident, the Prosecutionconsidered that it was unable to conclude that theattack on the Cheonan met the definition of thewar crime of killing or wounding treacherouslyunder Article 8(2)(b)(xi) of the Statute in light of‘the current internationally accepted definition’of this crime, as well as ‘the circumstances of theincident in question’. 407 The Prosecution concludedthat there was no reasonable basis to initiate aninvestigation and closed the examination on 23June 2014. 408406 ‘Situation in the Republic of Korea: Article 5 Report’,OTP, June 2014, paras 17-27, available at .407 ‘Situation in the Republic of Korea: Article 5 Report’,OTP, June 2014, paras 13-16, available at .408 ‘Situation in the Republic of Korea: Article 5 Report’, OTP,June 2014, para 82, available at ; ‘Statement of the Prosecutor of the InternationalCriminal Court, Fatou Bensouda, on the conclusion of thepreliminary examination of the situation in the Republicof Korea’, OTP Press Release, ICC-OTP-20140623-PR1019, 23June 2014, available at .70
Substantive Work of the ICC Overview of cases and SituationsICC Situations and cases 409Democratic Republic of the CongoThe Situation in the DRC was the first to be investigated by the ICC, following the Government’sreferral in March 2004. 410 In June 2004, the Prosecution formally opened its investigation intocrimes allegedly committed within the territory since 1 July 2002. 411 Four of the six cases arisingout of this Situation have focused on crimes committed within the Ituri region of the DRC. In2008, the Prosecutor indicated that his Office had started to look into the alleged commissionof crimes in the North and South Kivu provinces. 412 The Kivus have constituted the focus of theProsecution’s investigations since 2008. 413At the time of writing this Report, six public arrest warrants have been issued by Pre-TrialChamber I in the DRC Situation. Five of these warrants have been executed, resulting in thearrest or surrender of the following individuals into ICC custody: Thomas Lubanga Dyilo(Lubanga), Germain Katanga (Katanga), Mathieu Ngudjolo Chui (Ngudjolo), Bosco Ntaganda(Ntaganda), and Callixte Mbarushimana (Mbarushimana). The Arrest Warrant for SylvestreMudacumura (Mudacumura) remains outstanding. The DRC Situation was also the first in whichtrial proceedings were initiated, and it is the only Situation in which the Court has completed thetrial process, issuing a total of two convictions and one acquittal thus far.409 In this section, the scope of charges reflects the charges contained in the confirmation of charges decision, DCC orarrest warrant, depending on the current stage of the proceedings.410 ‘The Office of the Prosecutor of the International Criminal Court opens its first investigation’, OTP Press Release, ICC-OTP-20040623-59, 23 June 2004, available at .411 ‘The Office of the Prosecutor of the International Criminal Court opens its first investigation’, OTP Press Release, ICC-OTP-20040623-59, 23 June 2004, available at .412 ‘ICC Prosecutor recalls ICC has jurisdiction over crimes against the civilian population in the Kivus’, OTP Press Release,ICC-OTP-20081104-PR-369, 4 November 2008, available at .413 ‘Report of the International Criminal Court’, 17 September 2009, A/64/356, para 28.71
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