For the second time, South Korea's Constitutional Court ruled on 30 August that the right to conscientious objection is not protected under the South Korean constitution. Almost exactly seven years after its first decision on the subject on 26 August 2004 (see CO-Update No 1, September 2004), the court ruled again with a majority of 7-2 that the country's military service act is constitutional.
The court ruled that article 88 section 1 of the country's conscription law, which states that those who refuse military service without a valid reason are subject to punishment of up to three years in prison, is constitutional. The only valid reasons considered by the law of physical or mental disabilities.
“The law was established to secure military manpower, share military duty equally and keep national security under the conscription system. So we acknowledge the legislation was proper and does not infringe basic rights,” the court said in the ruling.
The ruling comes about three years after a high court in Chuncheon, Gangwon Province, filed a petition over the case of four people indicted on charges of refusing to serve in the military for religious reasons.
The judgement mainly reiterates the Court's earlier judgement of 2004, without taking into count the development of international law since. On 23 January 2007, the United Nations Human Rights Committee concluded two individual complaints from South Korea with a clear statement that not to provide for conscientious objection constitutes a violation of article 18 of the International Covenant on Civil and Political Rights (ICCPR). It also wrote that "The State party is under an obligation to avoid similar violations of the Covenant in the future" (see CO-Update No 27, February 2007). The Human Rights Committee reiterated its position on 3 May 2010 in a decision on eleven cases from South Korea (see CO-Update No 56, May/June 2010), and again on 24 March 2011, in a decision on more than 100 cases from South Korea.
The Constitutional Court also ignored the recent judgement of the Grand Chamber of the European Court of Human Rights in the case of Bayatyan v Armenia (see CO-Update No 67, August 2011).
The judgement of the Constitutional Court is a huge disappointment. It is difficult to see what other legal means remain open to conscientious objectors in South Korea. And with the present government it is difficult to imagine that legislation recognising the right to conscientious objection will be passed without a decision by the Constitutional Court. Possibly, the latest judgement of the Constitutional Court shows the limits of using the courts and lobbying in a social movement. What might be needed now is more movement and coalition building, to create the political strength for social change, including the recognition of the right to conscientious objection.
Sources: Korea Joongang Daily: Constitutional Court affirms military service, 31 August 2011; The Korea Times: Law penalizing conscientious objectors ruled constitutional, 30 August 2011; War Resisters' International: Human Rights Committee decides on more than 100 cases of conscientious objectors from South Korea, 5 May 2011; Human Rights Committee: Communications No. 1642-1741/2007, 24 March 2011; Constitutional Court of South Korea: Decision of the Constitutional Court of Korea on Conscientious Objection, 24 August 2004