Korea, South

en
ko

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 1950’s, 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






1The
Korean Constitution,
http://english.ccourt.go.kr/home/english/welcome/republic.jsp,
date accessed 6 January 2009.






4Article
11 and 12 of the Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=83592&keyword=%eb%b3%91%ec%97%ad,
accessed on 12 January 2009






7Article
71 of the Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=83592&keyword=%eb%b3%91%ec%97%ad,
accessed on 12 January 2009




8Article
18 of the Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=83592&keyword=%eb%b3%91%ec%97%ad,
accessed on 12 January 2009; According to the reformed plans for the
conscription system, announced by the Korean government in February
2007, the periods of active military service and supplementary
military service will have been shortened gradually to 18 months in
the Army, 20 month in the Navy and 21 months in the Air Force by
2014. The same rate of reduction of the length of supplementary
military service will be applied. See “South Korea to legalise
conscientious objection”, CO-Update, October 2007, No. 33,
http://wri-irg.org/node/1251,
accessed 12 January 2009.




9Article
3 of the Establishment of Homeland Reserve Forces Act,
http://law.go.kr/LSW/LsTrmSc.do?menuId=0&query=%EB%B3%91%EC%97%AD%EB%B2%95,
accessed 9 January 2009.




10For
more details, see Article 124 and 129 of the Enforcement Decree of
the Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=90675&keyword=%eb%b3%91%ec%97%ad%eb%b2%95,
accessed 12 January 2009.




11For
more details, see Article 134 of the Enforcement Decree of the
Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=90675&keyword=%eb%b3%91%ec%97%ad%eb%b2%95,
accessed 12 January 2009.




12A
document submitted to the Korean National Assembly for parliamentary
inspection of the administration by the Ministry of Defence,
November 5, 2007,
http://www.mnd.go.kr/webmodule/htsboard/hbd/hbdread.jsp?typeID=-22&boardid=-112&seqno=453&c=DIVCODENM&t=&pagenum=1&tableName=MND_TYPEL14BOARD&pc=undefined&dc=&wc=&lu=&vu=&iu=&du=&st=,
accessed 16 January 2009





14The
Military Personnel Law, last amended by Clause 8732 on 21 December
2007, unofficial translation,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=81980&keyword=%ea%b5%b0%ec%9d%b8%ec%82%ac%eb%b2%95,
accessed 12 January 2009.




15“South
Korea: Constitutional Court decides against right to conscientious
objection”, CO-Update, September 2004, No. 1,
http://wri-irg.org/node/571,
accessed 22 December 2008




16Decision
of the Constitutional Court of Korea on Conscientious Objection,
August 26, 2004, http://wri-irg.org/node/6216,
accessed 22 December 2008. The earlier decision of the Supreme Court
is similar. See Decision of the Supreme Court of Korea on
Conscientious Objection, 15 July 2004,
http://wri-irg.org/node/6218,
accessed 22 December 2008.




17Communications
Nos. 1321/2004 and 1322/2004 : Republic of Korea. 23/01/2007.
CCPR/C/88/D/1321-1322/2004. (Jurisprudence) “Views of the Human
Rights Committee under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political
rights”,
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/26a8e9722d0cdadac1257279004c1b4e?Opendocument,
accessed 13 January 2009




18UN
Human Rights Committee, CCPR/C/KOR/CO/3, §17,“Consideration of
Reports submitted by State Parties under Article 40 of The Covenant:
Concluding Observations - Republic of Korea.”,
http://daccess-ods.un.org/TMP/7108951.html
,
accessed 13 January 2009




19Religious
Freedom Report 2008 by Jehovah's Witnesses,
http://www.jw-media.org/frames/081211.htm,
accessed 12 January 2009




20“Report
of the Working Group on the Universal Periodic Review : Republic of
Korea”, Human Rights Council Eighth session,
http://www.ohchr.org/EN/HRBodies/UPR%5CPAGES%5CKRSession2.aspx,
accessed 13 January 2009




21“South
Korea to legalise conscientious objection”, CO-Update, October
2007, No. 33, http://wri-irg.org/node/1251,
accessed 14 January 2009




22“South
Korea: No rights for conscientious objectors”, CO-Update, 2
January 2009, No. 44, http://wri-irg.org/node/6309,
accessed 14 January 2009




23Article
44 of the Military Criminal Act, last amended as Clause 7845 on
January 2, 2006,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=72649&keyword=%ea%b5%b0%ed%98%95%eb%b2%95,
accessed 12 January 2009






26Article
88 of the Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=83592&keyword=%eb%b3%91%ec%97%ad,
accessed 12 January 2009




27Article
88 of the Military Service Act,
http://www.klaw.go.kr/CNT2/LawContent/MCNT2Right.jsp?lawseq=83592&keyword=%eb%b3%91%ec%97%ad,
accessed 12 January 2009





29Religious
Freedom Report 2008 by Jehovah's Witnesses,
http://www.jw-media.org/frames/081211.htm,
accessed 12 January 2009




30Young-il
Hong, “Jehovah's Witnesses and conscientious objection in Korea”,
The Broken Rifle, November 2003, No. 59,
http://wri-irg.org/node/2564,
accessed 12 January 2009




31The
Korea Times, “Conscientious Objectors Top 5,000”, 8 January
2009, http://wri-irg.org/node/6432,
accessed 13 January 2009




32Calculated
based on “World Without War” website, http://withoutwar.org,
accessed on 13 January 2009




33War
Registers' International et al, Briefing Paper on Conscientious
Objection and Human Rights issues in the Republic of Korea,
http://wri-irg.org/news/2004/korea04-en.htm,
accessed 14 January 2009




34Religious
Freedom Report 2008 by Jehovah's Witnesses,
http://www.jw-media.org/frames/081211.htm,
accessed 12 January 2009




35“South
Korea: Constitutional Court to rule again on the right to
conscientious objection”, CO-Update, October 2008, No. 42,
http://wri-irg.org/node/2272,
accessed 13 January 2009




36US
Department of State, International Religious Freedom Report 2008 -
Republic of Korea, released on September 19, 2008,
http://www.state.gov/g/drl/rls/irf/2008/108411.htm,
accessed 13 January 2009.




37Article
15 of the Establishment of Homeland Reserve Forces Act,
http://law.go.kr/LSW/LsTrmSc.do?menuId=0&query=%EB%B3%91%EC%97%AD%EB%B2%95,
accessed 9 January 2009.




38Ulsan
District Court, Decision to Request for Adjudication on
Constitutionality of Law, http://wri-irg.org/node/6465,
accessed 14 January 2009




39Religious
Freedom Report 2008 by Jehovah's Witnesses,
http://www.jw-media.org/frames/081211.htm,
accessed 12 January, 2009.




40The
MINBYUN's counter report to the third periodic report of the
Republic of Korea in the 88th session of Human Rights Committee,
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/MINBYUN-partI.pdf,
accessed 13 January 2009.


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