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JUNE 16, 2014

Judges Struggle With Their Own Conscience When Required to Ignore Conscience of Others

Judges Struggle With Their Own Conscience When Required to Ignore Conscience of Others

The presiding judge of the Suwon District Court wept as she read the prison sentence for 21-year-old Chang-jo Im, a conscientious objector to military service. Although the judge had handed down verdicts that day in five other criminal cases without any signs of distress, the injustice of this case moved her to tears. Having no other option, she sentenced this young man, one of Jehovah’s Witnesses, to 18 months’ imprisonment.

Every month, judges in South Korea face the same scenario. A young man identifies himself in court as a conscientious objector, and regardless of his personal circumstances, the judge pronounces the expected sentence of 18 months’ imprisonment. In his decision regarding one conscientious objector, Judge Young-sik Kim states: “The justices hardly believe that they are ‘punishing criminals’ when they deal with conscientious objectors.” The conflict he felt caused him to question the validity of the draft evasion statute as a sentencing guideline for conscientious objectors.

South Korea refuses to recognize the right of conscientious objection to military service and has made no provision for alternative civilian service. Judges in South Korea cannot avoid this recurring dilemma and must convict conscientious objectors as criminals. Judges are also aware that the UN Human Rights Committee has ruled in several cases—involving 501 young men—that South Korea is violating its international commitments to respect fundamental human rights by prosecuting and imprisoning conscientious objectors. As a result, a growing number of judges grapple with their own conscience as they impose prison sentences on young Christian men whose conscience does not allow them to engage in military service.

At this time, six district court judges have referred conscientious objection cases to the Constitutional Court of South Korea, though the Constitutional Court ruled as recently as 2011 that the military service law is constitutional. The judges’ decisions also address practical concerns.

What some judges have said about . . .

  • The morality of imprisoning a person who objects to war for reasons of conscience

    “The ultimate goal of protecting freedom of conscience by the Constitution as a fundamental right is to protect individuals’ conscience, which form the basis for human worth and dignity. . . . Though their decision to reject military service does not harmonize with the majority’s idea, it would be difficult to argue that their decision amounts to a serious antisocial or antinational crime that deserves strict sanction by directly invoking the criminal punishment.”–Judge Hye-won Lim, Suwon District Court, February 21, 2013, 2012Chogi2381.

    “Deciding the relationship between oneself and others . . . [and] giving serious consideration to the ‘value of human existence’ is an integral process of forming one’s character. It also embraces the decision not to deprive anyone of his or her life, even under an armed conflict. If those [who have made] such decisions are forced to perform the military duty or compelled to take up arms and are invariably subjected to punishment if they refuse to perform such a duty, it would amount to denying their rights and their identity. Surely it violates human dignity.”–Judge Young-hoon Kang, Seoul North District Court, January 14, 2013, 2012Chogi1554.

  • Whether recognizing the right of conscientious objection weakens national security

    “There is no substantial and specific evidence or data available that the adoption of the system of alternative service would undermine national security and equality of imposing the burden of military duty.”–Judge Gwan-gu Kim, Changwon Masan District Court, August 9, 2012, 2012Chogi8.

    “There is no sufficient reason to claim that national security will be severely endangered to an extent that it would be impossible to protect human dignity and [the] value of all citizens when a minority, including Jehovah’s Witnesses, . . . refuses to take up arms and perform military training. In fact, the defendant . . . has already refused to perform military duty despite punishment. If the claim [were] sufficiently grounded, national security and human dignity and the value of all citizens would already be in serious danger.”–Judge Seung-yeop Lee, Ulsan District Court, August 27, 2013, 2013Godan601.

  • How this issue can be resolved

    “The administrative branch and the National Assembly are capable and able, when the Constitutional Court holds that the provision of this case is against the Constitution, to take into consideration both national security and freedom of conscience and legislate laws that recognize conscientious objection to military service and at the same time strengthen national security.”–Judge Young-sik Kim, Seoul South District Court, July 9, 2013, 2013Chogi641.

    “There will be neither loss of military force nor significant effect on national security as long as the alternative service system is carefully designed and implemented to avoid draft evasion under the pretext of conscientious objection.”–Judge Seong-bok Lee, Seoul East District Court, February 20, 2014, 2014Chogi30.

How will the Constitutional Court respond?

These judges ask the Constitutional Court to provide an answer for their troubling dilemma on the issue of conscientious objection. At present, the Court has granted admissibility in 29 cases, including two that involve 433 men.

What will the Constitutional Court determine in these cases? Will South Korea’s highest court recognize the right of conscientious objection to military service, opening the way for new legislation? If it does, it will honor its international commitments, its own Constitution, and dignify the consciences of many—bringing relief to hundreds of young men unjustly imprisoned.