SEPTEMBER 8, 2017
A social consensus has continued to grow in South Korea since the July 2015 public hearing of its Constitutional Court. Even in the absence of the Court’s decision or new legislation, South Korea is progressing in its view of conscientious objection to military service. The opinions of lower courts, the public, the legal community, and the national and international human rights communities support a solution that does not punish the exercise of freedom of conscience.
Unprecedented Shift in Opinions of the Courts
During the week of August 7, 2017, seven young men standing trial for their conscientious objection to military service received not-guilty decisions. This development is unprecedented. In the Republic of Korea’s legal history, courts have convicted more than 19,000 conscientious objectors, but 38 of the 42 not-guilty decisions ever rendered on this issue have come since May 2015, with 25 already in 2017.
Some courts have deferred the cases in hopes of receiving the Constitutional Court’s ruling, causing the number of pending cases on the issue to grow. Mr. Du-jin Oh, a lawyer who has represented many conscientious objectors, observed that there are now more than five times as many pending cases on the issue as compared with just a few years ago.
The increasing number of not-guilty decisions by trial courts (6 in 2015, 7 in 2016, and 25 in 2017) and the growing backlog of pending cases (an average of 100 has grown to more than 500) indicate a shift in the thinking of South Korea’s judiciary.
Many observers see a shift in the thinking of South Korea’s judiciary. In rendering the not-guilty decisions, many courts noted that punishing conscientious objectors in the absence of an alternative civilian service program is a violation of the constitution’s guarantee of freedom of conscience. Others have determined that conscientious objection to military service is a “justifiable ground” for refusing military call-up, as provided for in the Military Service Act.
While public opinion is not the determining factor in recognizing and protecting human rights, the Ministry of Defense has used the lack of popular support to justify its refusal to resolve this issue. But public opinion is changing. In 2005, only 10 percent of those surveyed agreed with the idea of recognizing the right of conscientious objection. However, a May 2016 poll reported that 70 percent of participants supported the further step of implementing alternative service. A July 2016 poll of the Seoul Bar Association showed that more than 80 percent of its members supported it.
Opinions and Decisions of the Human Rights Community
The National Human Rights Commission of Korea (NHRC) saw that the changing viewpoints in South Korea had prompted legislators to propose adopting alternative service in three different amendment bills to the National Assembly for its session starting June 2017. The NHRC also took note of opinions and decisions from the international community urging this action and then examined how the proposals measured up to international standards for alternative civilian service. The NHRC provided the government of South Korea with its conclusions on an alternative civilian service program that adheres to international standards and that has been acceptable to Jehovah’s Witnesses and others.
A Promise and a Petition
When President Jae-in Moon was inaugurated on May 10, 2017, he brought to that office both his experience as a human rights lawyer and a promise: “Freedom of conscience is a fundamental right of the highest level among all fundamental rights under the Constitution. Therefore, I promise to implement alternative service and get rid of the current practice of imprisoning conscientious objectors.”
On August 11, 2017, a delegation representing 904 conscientious objectors submitted a petition to the new president, asking that the government recognize the right to conscientious objection by releasing those imprisoned and implementing an alternative civilian service program. The petitioners are comprised of 360 conscientious objectors serving a prison term and 544 under trial at various levels of court at the time of their petition.
An Opportunity to Make an Enduring Mark in the History of Human Rights
Hyun-soo Kim, one of the petitioners, commented on what the petition means to him: “I am looking forward to the adoption of alternative service that harmonizes with international standards, a purely civilian alternative service that is not connected to or supervised by the military. I am willing to serve in areas of social welfare or disaster relief or in whatever areas I might be assigned. It would be rewarding to contribute to the community.”
Jehovah’s Witnesses and others are happy to see the shift in opinions that may help prompt change of a policy that has punished thousands of men over the course of seven decades. The Witnesses are grateful that President Moon, members of the National Assembly, and South Korea’s judiciary have shown a genuine interest in respecting and accommodating those who conscientiously object to military service.