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MAY 9, 2016

Will South Korea Protect Freedom of Conscience?

Seon-hyeok Kim is facing one of the greatest challenges of his life. In early 2015, this 28-year-old husband and father appeared in court on criminal charges of evading military service because he is a conscientious objector. In harmony with international standards, the Gwangju District Court declared him not guilty. This decision was exceptional in South Korea, where for decades thousands of conscientious objectors have been convicted and imprisoned. However, the appeal court overturned Mr. Kim’s verdict and sentenced him to 18 months of imprisonment. His further appeal is now pending with South Korea’s Supreme Court.

In recent years, there has been a rising tide of disagreement within South Korea over its refusal to recognize conscientious objection. Judges who have courageously decided to uphold international standards on this issue have been overruled on appeal.

Trial Court Upholds the Right to Freedom of Conscience

On May 12, 2015, when Judge Chang-seok Choi of the Gwangju District Court acquitted Mr. Kim of evading military service, he reasoned that Mr. Kim was not ignoring national duty. Rather, he recognized that Mr. Kim, who is one of Jehovah’s Witnesses, is a deeply religious man whose moral convictions do not allow him to serve in the military. The judge noted that Mr. Kim was willing to perform alternative civilian service that is separate from the military. *

In his ruling, Judge Choi further reasoned that Mr. Kim was exercising his freedom of conscience in refusing military service and that “freedom of conscience should by all means be protected.” Courageously, Judge Choi respected Mr. Kim’s inherent moral judgment. His ruling was contrary to his country’s established case law but consistent with international standards for conscientious objectors.

“Freedom of conscience should by all means be protected, which is possible to do in a relatively simple manner without fundamentally undermining the duty of national defense.”—Judge Chang-seok Choi, Gwangju District Court

In five separate decisions involving over 500 complaints, the UN Human Rights Committee (CCPR) has condemned South Korea for punishing conscientious objectors. In a recent decision, the CCPR concluded that imprisoning them amounted to arbitrary detention under Article 9 of the International Covenant on Civil and Political Rights (ICCPR). * The CCPR and other international bodies have urged South Korea to adopt legislation providing alternative civilian service for conscientious objectors. Although in 1990 South Korea voluntarily submitted to the ICCPR and its First Optional Protocol, it has refused to take further steps to implement these decisions.

Guilty or Not Guilty?

The prosecutor petitioned the appeal court to overturn Mr. Kim’s acquittal, arguing that his conscientious objection to military service threatens national security. * On November 26, 2015, the appeal court reversed the trial court’s not-guilty verdict and sentenced Mr. Kim to 18 months of imprisonment for allegedly evading military service.

Although the appeal court acknowledged the CCPR rulings, it held that the authority of South Korea courts superseded international law in this case. Mr. Kim immediately appealed to the Supreme Court and submitted an urgent complaint to the UN Working Group on Arbitrary Detention. * He is waiting for the outcome of both of these decisions.

The Supreme Court and the Constitutional Court have consistently refused to recognize the rights of conscientious objectors. In 2004 and again in 2011, the Constitutional Court found that the Military Service Law was constitutional. The Constitutional Court is now reviewing the constitutionality of the Military Service Law for the third time and is expected to render its decision soon.

Since 1953, South Korea courts have sentenced over 18,000 of Jehovah’s Witnesses to prison for refusing to serve in the armed forces.

Will South Korea Finally Recognize International Standards?

If the Supreme Court rejects Mr. Kim’s appeal, he faces immediate imprisonment. He is distressed knowing that his 18-month imprisonment will cripple his family emotionally and financially. His wife will be the sole provider and caretaker for their two young children. After his release from prison, his criminal record will make finding employment considerably more difficult.

Jehovah’s Witnesses are grateful that governments around the world have adopted the international standard to recognize the right of conscientious objectors. Along with Seon-hyeok Kim, Jehovah’s Witnesses in South Korea look to the courts for a resolution to this issue. Will the Supreme Court and the Constitutional Court abide by the international standards they have willingly submitted to? Will South Korea respect conscientious objection as a fundamental right of its citizens?

^ In 2015, the Gwangju District Court issued “not guilty” verdicts in the case of three other Witnesses. The Suwon District Court likewise acquitted two Witnesses of the charge of evasion of military service.

^ Human Rights Committee, Views, Young-kwan Kim et al. v. Republic of Korea, Communication No. 2179/2012, UN Doc. CCPR/C/112/D/2179/2012 (October 15, 2014).

^ The prosecutor claimed that a conscientious objector’s refusal of military duty would have a negative effect on national security. However, other legal experts disagree. For example, Judge Gwan-gu Kim of the Changwon Masan District Court stated, “There is no substantial and specific evidence or data available that the adoption of the system of alternative service would undermine national security.”

^ The WGAD provides a mechanism to appeal for intervention against arrest when the reason for arrest and subsequent detention is the exercise of fundamental rights or freedoms guaranteed by international human rights law.