The Office of the Prosecutor in the Hague-based ICC opened a preliminary examination in December 2010 to determine whether the North's shelling of the South's Yeonpyeong Island in November of that year and the sinking of the warship Cheonan in March "constitute war crimes."
The North's shelling, which killed four people, including two civilians, marked the first time the communist country has bombarded South Korean soil since the end of the 1950-53 Korean War. The conflict ended in a truce, not a peace treaty, leaving the sides technically still at war.
The artillery bombardment came eight months after the North allegedly torpedoed the warship Cheonan near the Yellow Sea border between the two Koreas, leaving 46 sailors dead.
A soldier looks at pictures of Sgt. Seo Jeong-woo and Pvt. Moon Gwang-wuk who were killed in North Korea's artillery attack on South Korea's Yeonpyeong Island on Nov. 23, 2010. (Yonhap file photo)
According to sources here, the ICC has been collecting relevant data on the incidents as part of their ongoing preliminary probe, which is to determine whether to open a formal investigation into the two cases.
"Two years of investigation hints at the possibility of seeing the two incidents as war crimes. If there are no such factors, they would have already closed the case," a diplomatic source here said on condition of anonymity.
"It is however hard to predict how the ICC probe will unfold or how long it will take," he added.
ICC officials in charge of the case were not immediately available for comment.
Should the ICC determine the two cases merit formal investigation, the theoretical next steps would be to determine the parties responsible for the incidents and have them arrested to stand trial.
That would be virtually impossible as North Korea is certain to refuse to cooperate, according to experts and diplomatic sources. Pyongyang is not a member of the ICC.
They also see the issuing of arrest warrants as the furthest the ICC can go, with the chance of executing them very low.
"Regardless of whether the ICC has those responsible stand trial, their indictment itself can bear the significance of holding the communist country accountable for the attacks," another diplomatic source said.
Crimes under ICC jurisdiction have no statute of limitations.
Seen here is the wreckage of a South Korean warship, the Cheonan, at South Korea's 2nd Fleet Command in Pyeongtaek, west of Seoul. The ship broke in two after a North Korean torpedo attack in the Yellow Sea in March 2010, killing 46 sailors. (Yonhap file photo)