Länderberichte und aktuelle Informationen: Korea, South

23 March 2009

Issues

• Korea maintains conscription.

• The right to conscientious objection is not recognised.

• Those who refuse to answer a call up for reserve duty are subject to multiple prosecutions and repeated fines or imprisonment.

Military recruitment

Conscription

Conscription is enshrined in art. 39 of the 1987 Constitution, which states: "(1) All citizens shall have the duty of national defence under the conditions as prescribed by Act. (2) No citizen shall be treated unfavourably on account of the fulfilment of his obligation of military service."¹.

The present legal basis of conscription is the Military Service Act, last amended as Clause 8834 on 31 December 2007. According to Article 3 , "men of Korean nationality must fulfil their military service obligation in a satisfactory manner. Women may also accomplish their active duty if they so desire"².

All men are automatically registered as conscripts, based on their ID issued by the government at their birth, in the year they turn 18, a status which lasts until they reach the age of 40.³ Call up for medical examination (including psychological, physical and general education tests) takes place at the age of 19, followed by the placing of the conscripts concerned in six categories as follows:⁴

• those in categories 1, 2 and 3 are drafted into active military service;

• those in category 4 are assigned to serve in the public service sector;

• those in category 5 can be called up for military service only in wartime;

• those in category 6 are exempt from military service⁵.

If a homosexual declares his sexual identity during this examination, he shall be exempt from being eligible for conscription since homosexuality is classified as a psychiatric disorder according to the rules on physical and mental examination for conscripts.⁶

The duty to enlist in the Armed Forces lasts until the age of 31, with an exception for draft evaders, for whom it lasts until they reach 36.⁷

The duration of military service is generally 24 months. In the case of supplementary military service – those performing their service in the public welfare sector, in the administration or local government - the duration of service is 26 months. In certain special circumstances, when military service is performed in regional sectors of the economy, sociological and cultural areas and international cooperation, the duration of service is up to 36 months. All supplementary military service includes 4 weeks of basic military training.⁸

After military service, conscripts pass on to the reserve forces system, in which those who complete regular military service are obliged to serve approximately 160 hours of military training over an eight-year period after their discharge from regular military service.⁹

Military service can be postponed for students and for those with medical reasons up to a certain age limit depending on each case. After reaching the age limit, postponement is no longer possible.¹⁰ Exemption is only possible for medical reasons.¹¹

Professional soldiers

Currently, the Korean Armed Forces rely heavily on conscripts, who account for around 75% of the 680,000 armed forces, while commissioned officers and non-commissioned officers, both of whom are professional soldiers, account for the remaining 10% and 15% respectively. According to the “defence reform plan 2020”, proposed by the Korean Ministry of National Defence in 2005, the proportion of professional soldiers is expected to be increased by 40% of the armed forces by 2020.¹²

Women can voluntarily apply for both commissioned officer and non-commissioned officer, however, there are not many positions open to women. Generally, after graduating from a military academy or a four-year degree from a civilian university as a military student in the Reserve Officers' Training Corps (ROTC) or passing certain exams, commissioned officers with long-terms contracts have to serve 10 years of military while those with short-term contracts have to serve for three years of military service. People who apply for the post of non-commissioned officer have a first contract of four years of military service, and later they can renew their contract for three more years if they pass certain tests.¹³

The Military Manpower Administration maintains a website (http://www.mma.go.kr/kor/s_mobyung/index.html), through which people can access different recruitment websites of the Armed Forces. The service of professional soldiers is regulated by the Military Personnel Law.¹⁴

Conscientious objection

Conscientious objection for conscripts

The right to conscientious objection is not legally recognised and there are no provisions for substitute service. However, article 19 of the Korean constitution states that “all citizens shall enjoy freedom of conscience”. While this could be interpreted to include the right to conscientious objection to military service, the Korean courts have so far not done so.

Conscientious objectors cannot be exempt from military service because a genuinely-held conscientious objection is not deemed to amount to “justifiable reasons”, within the meaning of Article 88(1) of the Military Services Act, allowing for exemption from military service. In 2004, the Korean Constitutional Court rejected, by a majority, a constitutional challenge to article 88 of the Military Service Act on the grounds of incompatibility with the protection of freedom of conscience protected under the Korean Constitution.¹⁵

On 26 August 2004, the Constitutional Court of the Republic of Korea concluded: Freedom of conscience as expressed in Article 19 of the Constitution does not grant an individual the right to refuse military service. Freedom of conscience is merely a right to make a request to the State to consider and protect, if possible, an individual’s conscience, and therefore is not a right that allows for the refusal of one’s military service duties for reasons of conscience nor does it allow one to demand an alternative service arrangement to replace the performance of a legal duty. Therefore the right to request alternative service arrangement cannot be deduced from the freedom of conscience. ... Our Constitution provides in Article 5 Section 2 that 'the sacred duty of the nation army is the preservation of national security and the defence of national territory while remaining politically neutral. Article 39 Section 1 provides that 'all citizens shall have the duty of national defence as imposed by law.' ... Considering the instability and the unpredictability of the region created by special security situation concerning North and South Korea, one cannot over-emphasise the importance of the duty of national defence. If national security cannot be ensured due to the failure to perform the duty of military service, it is clear that a citizen’s human dignity and self worth cannot be protected. Thus the ultimate purpose of the duty of military service is ensuring the dignity and value of it citizens and thus we cannot say that the value of petitioner’s freedom of conscience exceeds these constitutional legal benefits. Consequently even if the petitioner’s freedom of conscience is restricted pursuant to Article 37 Section 2 of the Constitution, it would be a constitutionally permitted restriction.”¹⁶

On 18 October 2004, following the rulings of the Supreme Court and the Constitutional Court denying the right to conscientious objection, two conscientious objectors, Mr. Myung-Jin Choi and Mr. Yeo-Bum Yoon, filed an individual complaint with the UN Human Rights Committee. On 3 November 2006, the UN Human Rights Committee rendered a decision that the Korean government had violated Article 18, paragraph 1, of the Covenant (section 10) and stated: “The State party is under an obligation to provide the authors with an effective remedy, including compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future.”¹⁷

In a separate document dated 31 October 2006, the 88th session of the UN Human Rights Committee adopted the following Concluding Observations to the report submitted by the South Korean government :

“17. The Committee is concerned that: (a) under the Military Service Act of 2003 the penalty for refusal of active military service is imprisonment for a maximum of three years and that there is no legislative limit on the number of times they [objectors] may be recalled and subjected to fresh penalties; (b) those who have not satisfied military service requirements are precluded from employment by government or public organizations and that (c) convicted conscientious objectors bear the stigma of a criminal record (article 18).

The State party should take all necessary measures to recognise the right of conscientious objectors to be exempted from military service. It is encouraged to bring legislation into line with Article 18 of the Covenant. In this regard, the Committee draws the attention of the State party to its General Comment 22, paragraph 11 on the right to freedom of thought, conscience, and religion.”¹⁸

On 7 January 2008, the director of the National Human Rights Committee submitted an opinion to the Constitutional Court, urging the Korean government not to penalise conscientious objectors to reserve military service and implement a substitute service along with the recognition of the right to conscientiously object to military service.¹⁹

Most recently, the Human Rights Council of the United Nations recommended to the Republic of Korea to introduce the right to conscientious objection. The draft report of the working group on the Universal Periodic Review from 29 May 2008 states: “17. To recognise the right of conscientious objection by law, to decriminalise refusal of active military service and to remove any current prohibition from employment in Government or public organisations, in line with the recommendation by the Human Rights Committee. (Slovenia) 24. ... That active steps be taken to introduce alternatives to military service for conscientious objectors. (United Kingdom)”²⁰

In September 2007, under the administration of former President Roh Moo-hyun, the Ministry of Defence decided to “virtually allow” substitute service to protect the human rights of the minority.²¹ Following the presidential election in December 2007 and subsequent government transition, however, the Ministry had been slow to follow up with public hearings, surveys and other measures. In the end, in a reversal of a position it held just over one year earlier, the Ministry of Defence announced on 24 December 2008 that it is too early to introduce a substitute service programme for conscientious objectors, referring to the result of a survey of 2,000 adults commissioned by the ministry showing 68.1 percent of respondents objected to allowing conscientious objectors to perform a substitute service.²²

Conscientious objection for professional soldiers

As Korea does not recognise the rights to conscientious objection even for conscripts, it also does not allow its professional soldiers to claim conscientious objector status. The Military Criminal Act makes no reference to conscientious objection for professional soldiers. However, it can be assumed that any professional soldiers claiming a conscientious objection would be charged with disobeying orders according to Article 44 of the Military Criminal Law, prescribing a punishment of up to three years' imprisonment in peace time for mutiny.²³

No cases of professional soldiers claiming a conscientious objection are known.

Apart from the regulation which says that commissioned officers with long-term contracts of ten years can apply to leave in their fifth working year,²⁴ and that professional soldiers can submit an application to leave at one year's notice,²⁵ the related laws give no clear indication about any right to leave before completing the contract or about any provision for soldiers who develop a conscientious objection (either to military service itself or to a particular war).

Draft evasion and desertion

Draft evasion is punishable by up to three years' imprisonment according to Article 88 of the Military Service Act²⁶: “Military Service Act Article 88 (Draft Evasion) 1) If a person who has received a draft notice for active duty or Notice of Summons (including Notice of Summons for voluntary enlistment), without justifiable cause, does not report for service within the period specified in the following clauses or refuses the summons, then he shall be sentenced to a prison term of three years or less. 1. For active duty, within three days of reporting date.”²⁷

According to Article 30 of the Military Criminal Act, desertion is punishable by two to ten years' imprisonment in peacetime, and at least five years' imprisonment in wartime. Desertion in the face of the enemy is punishable by death, life imprisonment or at least ten years' imprisonment.²⁸

practice

Since the 1950s, more than 13,000 of conscientious objectors have been imprisoned in South Korea for refusing to perform military service.²⁹ Every year, 400 to 700 draft-age men, mostly Jehovah’s Witnesses, plus some conscientious objectors of other religions and pacifists, are convicted and imprisoned because they refuse to perform military service.

Until 2001, conscientious objectors used to be tried in military courts, according to conscription practices of the Military Manpower Administration, which meant conscientious objectors had had no choice but first to enlist in the army and then to refuse. As they were then considered soldiers, they were tried by military courts. Several conscientious objectors had to go through repeated prosecution, followed by long and repeated prison terms. However, since 2001, when the right to conscientious objection was beginning to be widely discussed in the Korean society, the conscription practice changed and since then conscientious objectors have been tried in civilian courts and have been sentenced to 18 months imprisonment. In practice, 18 months is the minimum term that enables conscientious objectors to be exempt from further military service.³⁰

In particular since 2000, the year before the first pacifist conscientious objector publicly declared his conscientious objection, the number of people who have refused military service has reached 5,000, according to the Military Manpower Administration.³¹ At the end of 2008, all but 34 of this 5,000 were Jehovah's Witnesses - mainly pacifists, including a few Buddhists, Catholics and other Christians.³²

In November 2003, Cheol-min Kang, an active duty conscript who opposed the government's decision to dispatch troops to Iraq, refused to return from his holiday to his military service. He was charged with desertion from military service, tried in a military court and sentenced to 18 months imprisonment, which in fact was the same punishment as applied to other conscientious objectors in civilian courts.³³

Following the successful first two individual complaints to the UN Human Rights Committee, on 15 May 2007 pacifist COs filed 11 new complaints with the Committee. Furthermore, between 21 September 2007 and 6 November 2007, 100 more complaints were filed by imprisoned COs who are Jehovah's Witnesses. On 7 December 2007, these complaints were communicated to the South Korean which was given six months to respond. An additional 388 new complaints were filed by 25 April 2008. On 29 April 2008, the UN Human Rights Committee combined all complaints into one case identified as communication No. 1786/2008 on behalf of Mr. Jong-nam Kim et al. and communicated these to the South Korean government. Again the government was given six months, that is until 30 October 2008, to respond. However, there has still been no response.³⁴

On 5 September 2008, a three-judge panel of an appellate division of the Chuncheon District Court decided to combine four separate appeal cases of young conscientious objectors who are Jehovah’s Witnesses and to refer these cases to the Constitutional Court. The Constitutional Court was asked to review the constitutionality of Article 88, Section 1, of the Military Service Act. Thus the Constitutional Court will have the opportunity to revise its 2004 decision refusing to rule that Article 88, Section 1, of the Military Service Act is unconstitutional.³⁵

The reserve forces system also leads to problems for conscientious objectors. Conscientious objectors who are called up as reservists face multiple prosecutions and repeated punishments over an eight-year period. In particular, this is a problem for all whose beliefs have changed after they performed their regular military service and who are later assigned to perform reserve force service. They are not exempt from military training, even after they have been convicted, paid fines, or served a prison term.³⁶ According to Article 15 of the Establishment of Homeland Reserve Forces Act, conscientious objectors as reservists can get fined up to five million won (approx. US$5,000) or imprisoned for up to three years.³⁷

On 18 April 2007, judge Song, Seung-yong of the Ulsan District Court suspended the trial of Shin Dong-hyuk, over which he was presiding, and filed a request with the Constitutional Court asking for a determination of constitutionality of sections of the Homeland Army Reserve Act. The judge requested that the Constitutional Court review Articles 6(1) and 15(8) of the Homeland Army Reserve Act, which form the basis for the indictment against Shin Dong-hyuk, in light of Article 19 of the Constitution, which guarantees the right to freedom of conscience.³⁸ As of October 2008, over 80 Jehovah’s Witnesses are caught in the cycle of being accused and sentenced to repeated fines and/or prison terms because of their conscientious objection to reserve forces service. Many of them are not capable of paying the fines, which may amount to thousands of dollars each year. Some have been registered as “wanted” criminals because of their inability to pay the fines. Others have chosen to undertake labour in a “work-house” (lock-up facilities inside a prison) instead of paying the fines. The length of this labour arrangement can vary from one day to three years, in proportion to the unpaid fine (usually calculated at 50,000 won [approx. US$50] in fines equal to one day’s labour).³⁹

Annually 300,000-350,000 young men are conscripted, and 30,000 work as public service workers, 55,000 as industrial skilled workers, 15,000 are expert research workers, 4,000 are public health workers, 36,000 are full-time reservists, and 50,000 work as on-duty police, totalling approximately 200,000 people who are working in substitute military services annually.⁴⁰

Sources