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South Korea: Supreme Court Finds Conscientious Objection to Military Service Justifiable

(Nov. 16, 2018) On November 1, 2018, the Supreme Court of South Korea ruled that conscientious objection to military service is “justifiable” under article 88(1) of the Military Service Act. (Sup. Ct., No. 2016 do 10912 (Nov. 1, 2018) (in Korean), Supreme Court website; Military Service Act, Act No. 4685, Dec. 31, 1993, as amended by Act No. 14611, Mar. 21, 2017, Statutes of the Republic of Korea website). The Supreme Court stated that it is not appropriate to penalize people who have refused mandatory military service on conscientious or religious grounds. (Sup. Ct., No. 2016 do 10912.)

History

Conscientious objection has been debated in South Korea for decades, especially in cases involving Jehovah’s Witnesses, and reportedly “[s]ince the 1950s, about 19,000 conscientious objectors have been arrested and served time, mostly 18 months in jail.” (Panel Proposes Conscientious Objectors Work at Fire Stations or Prisons, YONHAP (Oct. 4, 2018).)

The Supreme Court and the Constitutional Court have affirmed the punishment of conscientious objectors until this year. The last time that the Supreme Court issued a decision on the issue was in 2004. (Sup. Ct., No. 2004 Do 2965 (July 15, 2004) (in Korean), Supreme Court website.) The Constitutional Court of Korea also upheld the constitutionality of article 88(1) of the Military Service Act in 2004 and 2011. (Const. Ct., No. 2002 Hun-Ka 1 (Aug 26, 2004); Const. Ct., No. 2008 Hun-Ka 22-7 (consolidated) (Aug 30, 2011). Constitutional Court decisions are searchable on the Constitutional Court website.)

Conscientious objectors interviewed in news reports say they want to serve their country in alternative ways, but the government has not provided such alternatives. Though conscripts can be assigned to alternative services after enlistment, a month of combat training is still mandatory for all. (Min-sik Yoon & Hyun-ju Ock, Is South Korea Thawing to Conscientious Objection?, KOREA HERALD (Dec. 19, 2016).) In 2005, the National Human Rights Council of Korea (NHRCK) recommended that the government introduce alternative service. The Ministry of National Defense had a plan to promote alternative service for conscientious objectors in 2007, but the plan did not move forward. (Press Release, NHRCK, Alternative Civilian Service Has to Be Introduced for Conscientious Objectors (June 30, 2017).)

In 2016 an appeals court for the first time in the country’s history found a conscientious objector not guilty. (Min-kyung Kim, In a First, S. Korean Appeals Court Finds Conscientious Objector Not Guilty, HANKYOREH (Oct. 19, 2016).) The lower trial courts have increasingly handed down not-guilty verdicts for conscientious objectors since the first such ruling in 2016. (Supreme Court Rules Religious Belief Valid Reason for Refusing Mandatory Military Service, YONHAP (Nov. 1, 2018).)

In June 2018, the Constitutional Court again ruled that criminally punishing conscientious objectors to military service is constitutional.  This time, however, the Court ruled that not providing alternatives to conscientious objectors was unconstitutional. The Constitutional Court ordered the government to revise the Military Service Act by the end of 2019 to have those who refuse conscription serve through noncombat duties. (Const. Ct., No. 2011 Hun-Ba 379 (June 28, 2018).)

Future Cases and Alternative Forms of Service

The Supreme Court ruling will affect “227 other similar cases pending at the top court and some 930 conscientious objectors currently on trial in Korea to avoid criminal convictions for disobeying the mandate.” (Supreme Court Rules Religious Belief Valid Reason for Refusing Mandatory Military Service, supra.)

Since the Constitutional Court’s ordered the revision of the military conscription law in 2018, the government has taken steps to comply with the Court’s decision. On October 4, 2018, a government panel proposed that conscientious objectors fulfill their mandatory military service obligation through alternative forms of service, such as work at fire stations or prisons, for a period of 27 months or 36 months. (Panel Proposes Conscientious Objectors Work at Fire Stations or Prisons, supra.) It is likely that the Military Service Act will be revised by the end of 2019 and alternative forms of military service will be implemented in the future.