MIMBYUN-Lawyers for a Democratic Society
Korea Solidarity for Conscientious Objection (KSCO)
Korean Government cancelled
Alternative Civilian Service
Report to the United Nations Human Rights Council
10th Session (2-27 March 2009)
Item 3 ; WG Arbitrary Detention
Table of Contents
Executive Summary……………………………………………………………………………….. 3
1. Outline of Military Service Regulations……………………………………………….. 5
2. Conscientious Objection to Military Service……………………………………………. 6
2-1. Korean Government cancelled alternative Civilian Service plans
2-2. Changing circumstances related with CO issues
2-3. Complaints pending in the UN human rights committee
Executive Summary
On September 18, 2007, the Ministry of National Defense (MND) announced plans to allow conscientious objectors to perform alternative civilian service, which was supposed to start in January 2009. In addition, at the Universal Periodic Review held in Geneva on May 7, 2008, Chief of Human Rights Division of MND confirmed the position of Korea to introduce alternative service for conscientious objectors. However, the Lee Myung-bak administration, which was not in favour of introducing the alternative service ever since he has been a candidate for the Korean presidential election, has altered its position. In late December of 2008, the Ministry of Defense released to the media the difficulty of implementing alternative service system, referring to a result of consensus conducted by the Military Manpower Administration (MMA). They had commissioned to look into the possibility to allow conscientious objectors to serve in non-military programs. However the study itself was flawed. As a result, presently, the issue of whether or not to provide alternative service for conscientious objectors is back to the beginning. Up until now, more than 15,000 have been imprisoned for their objection to military service since Korea’s liberation from Japan in 1945 and in particular, more than 5,000 have gone through their imprisonment since 2000, the year when the issue of conscientious objection began to be discussed in public. Numbers of trials were suspended while waiting for the introduction of alternative service. However due to the current announcement of the government to cancel the alternative service system, the number of conscientious objectors in prison, which was reduced to 450, is expected to rise beyond 1,000.
Currently more and more cases of discharged servicemen refusing reserve military drills have been reported. However, their situation is worse than those of conscientious objectors. After finishing military service, one has to get the training for the reserved army for 8 years. If one refuses to be mustered for reserve drills, he either pays a fine of 5 million won (about 4,000 USD) or less, or gets sentenced up to 3 years in jail, according to Article 15, Clause 4 of the Establishment of Homeland Reserve Forces Act. Even after this punishment, the duty of getting training in the reserved army will be imposed repeatedly until the training period of 8 years ends. Actually even if one was punished because of refusal of the training, whenever one refuses it, the same punishment has been imposed over and over. Hence the fines are accumulated which becomes too much for an objector to pay and thus threatens his life.
At the moment, implementing alternative service for conscientious objectors seems to start from the scratch. Just last year there was a riot police who declared his conscientious objection to the military. He was mobilized to suppress the candlelight demonstrations, which was triggered by importing US beefs. His objection questioned the illogical system of conscripted riot police to be discussed in public. Nevertheless, he received more severe punishment of two-year imprisonment for his disobedience, than ordinary conscientious objectors who usually get 1 an half year’s imprisonment.
While the government overturned their plan, the ‘Presidential Commission on Suspicious Death in the Military in Korea’ released its decision on January 2009 that the Korean government is responsible for death of five Jehovah’s Witnesses who were illegally hauled and inducted by force into the army. Their death was result of “the state’s anti-human rights violence” and “its acts of brutality” in the 1970s and mid 1980s. However, the government did not make any comment on this matter. There have been changes in the judiciary practices regarding custody of conscientious objectors, where it started to make decisions to arrest conscientious objectors even before opening of their trial. This is contrary to the previous practice that conscientious objectors can attend their court hearings without being in custody. Despite the oppression from the government, around 400 conscientious objectors keep coming out per year to the world, which dare to choose to be in prison.
1. Outline of Military Service Regulations
Military Service in the Republic of Korea operates under a universal conscription system, according to the Military Service Act. Those who are eligible for conscription are assigned to one of two categories of service: active military service or supplementary military service. The period of the active military service is 24 months[1] including 5 weeks of basic military trainning. Those who complete active military service duties are subsequently assigned to the reserve forces and must perform approximately 160 hours of military training for a period of 8 years. The period of service for supplementary military service is 26 to 36 months and includes 4 weeks of basic military training, as required by the Military Service Act of the Republic of Korea. Supplementary military service, a form of alternative labor service, is granted based on factors such as physical or mental deficiencies, level or quality of academic achievements, special family circumstances, or being skilled in a special or unusual profession, as specified under the Military Service Act. According to Articles 26-33 Military Service Act supplementary military service will mainly be performed as public service personnel at national or local government agencies, public organizations, or in social welfare facilities, for the purpose of public interests. Those who complete supplementary military service are then also transferred to the reserve forces. However, the Military Service Act does not have any regulation for genuine civilian alternative services for conscientious objectors.
Those who were qualified as such specialists could fulfill their supplementary military service duties by working as a researcher or technician at a company. All others who are eligible for supplementary service are limited to those with physical or mental deficiencies or special family circumstances, which are subject to the judgment and decision of the Office of Military Manpower Administration, under the current Military Service Act. Therefore, those who are determined as eligible for active military service are not given any opportunity for alternative labor service in the supplementary military service. Furthermore, supplementary military service also includes 4 weeks of basic military training. Since conscientious objectors refuse to receive such military training, they are rejected even when they are trained in special or unusual professions, as applied to alternative labor services. The Military Service Act only has stipulations for punishment on the non-performance of military service duties[2]. It has to be highlighted that the Military Service Act dos not include any provision for conscientious objection. The UN Special Rapporteur on Religious Freedom pointed out in his report of 2001 that this is not in compliance with Article 18 of the ICCPR, especially general comment No. 22.[3].
2. Conscientious Objection to Military Service
Conscientious objectors have never been allowed in Korea. There is no exception since Korea had been independent of colony of Japan, and has established government while carrying out military service. Most conscientious objectors are Jehovah’s Witnesses, including some Seventh Day Adventists. The time when criticism about the army was prohibited in excuse of the security circumstance, nobody was interested in existence of conscientious objectors. One of the major causes is deep-rooted prejudice about Jehovah’s Witnesses. At the beginning of 2001, the situation of conscientious objectors widely known through a news of a weekly magazine. After this non-Jehovah’s Witnesses have come out, this issue has appeared as important social issue.
Conscientious objectors are usually sentenced 1 year and 6 month and imprisoned. But some people exceptionally get more than 1 year and 6 month. This sentence is the least sentence that is impossible to enter the army. This is an achievement while conscientious objectors problems became socially publicized. But conscientious objectors are often excluded from pardoned and reinstated list after there realize. Although the former government at the end discussed the reinstatement of conscientious objectors, they canceled it because there are too many people.
| Year |
2000 |
2001 |
2002 |
2003 |
2004 |
2005 |
2006 |
2007 |
2008 |
| Number |
656 |
646 |
826 |
565 |
756 |
831 |
783 |
571 |
377 |
Table 1 the annual number of prisoners of military objection since 2000
The people who are imprisoned as conscientious objector go over 15, 000. More than 5, 000 young people were imprisoned after 2000. As of December 2008, 432 people are being imprisoned. But these figures are expected to go up, considering the fact that many Jehovah’s Witnesses have put off their entering to the army or court day since government has announced alternative civilian service plans. However the numbers are steadily increasing and expected to surpass 1000, since Ministry of National Defense (MND) has referred cancellation of alternative service.
Most of the conscientious objector’s declare objection to the military when they become enlisted however in some cases become COs while they are serving in the military. Especially in the case of Giljun Lee who was serving the military as a riot police[4] not soldier, refused orders to suppress the civilians engaged in candlelight demonstration. Normally prison sentence for COs is 1 year 6 months where else Giljun Lee was exceptionally sentenced for 2 years. He was additionally penalized for police defamation
2-1. Korean Government cancels Alternative Civilian Service Plan
On September 18, 2007, the Ministry of National Defense (MND) announced plans to allow conscientious objectors to perform alternative civilian service. One spokesman of the MND said that the MND would submit such a bill during 2008 in order to have it enacted in 2009.
On May 7, 2008, Lee, Sung-ju, Chief of Human Rights Division of MND confirmed the position of Korea at the Universal Periodic Review held in Geneva, when he stated: “The Republic of Korea announced a new programme to give conscientious objectors the opportunity to participate in alternative in civilian service, in September 2007. For the implementation of the new system, the Government has to revise the Military Service Act, and a revised version of it will be submitted to the National Assembly this year (2008).”
On May 29, 2008, the United Nations Human Rights Council recommended to the Republic of Korea as it is noted in the draft report of the working group on the universal periodic review:
17. To recognize the right of conscientious objection by law, to decriminalize refusal of active military service and to remove any current prohibition from employment in Government or public organizations, in line with the recommendation by the Human Rights Committee. (Slovenia)
24. … [T]hat active steps be taken to introduce alternatives to military service for conscientious objectors. (United Kingdom)
However, on June 16, 2008, the Korean Government altered its position by stating, in the report containing Views and State’s Response to the UPR Recommendations (A/HRC/8/40/Add.1), that “the issue of conscientious objection to military service required further study and the forging of a broad national consensus.”
Responding to this, on July 21, 2008, the National Human Rights Commission once again adopted a resolution urging the Government of Korea to implement alternative civilian service.
On August 22, 2008, the Military Manpower Administration (MMA) commissioned Professor Jin, Seok-yong working at Daejon University to conduct a study to look into the possibility to allow conscientious objectors to serve instead in non-military programs.
On September 5, 2008, a three-judge panel of an appellant division of the Choonchun 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 Court was asked to review the constitutionality of Article 88, Section 1 of the Military Service Act. The following day, a conscientious objector who had been declared innocent at trial but convicted on appeal, submitted his case directly to the Constitutional Court. The Constitutional Court will now have the occasion to revisit its 2004 decision in which it had refused to declare Article 88, Section 1 of the Military Service Act unconstitutional.
On October 9, 2008, the National Assembly conducted an inspection on the administration of government offices. At this, Kim, Jang-su, former Minister of National Defense who is now an Assemblyman strongly urged the Korean government to keep the promise to implement alternative service. Another assemblyman of an opposing political party also inquired of the director of the Military Manpower Administration what had been done about alternative service? The director avoided any direct comments on this by saying that he was not in charge of the implementation and the study was being conducted.
On October 28, 2008, the Center for Social Science in Seoul National University held a public hearing and gathered public opinion about alternative service. This was a part of the study of Professor Jin commissioned by MMA. At the hearing, there was release of the results of the public opinion, conducted of 554 men and women in experts groups or the leadership class. The opinion was 87.5% for alternative services and accepting the counsel from U.N. Regarding the length of period of service, 62.8% thought that it should be less than 1.5 times the military service period. These 62.8% include 17.9% who are thinking that it should be equal to the military service period.
On December 19, 2008, Professor Jin concluded his study, but the result of his study was twisted and arbitrarily interpreted by MND. On December 24, 2008, the Korean Ministry of National Defense publicly announced that it was still too early to allow alternative service for objectors to military service based on religious conviction. (Reuters, December 24, 2008 “South Korea rethinks alternative to conscription”) The main reason it gives is that an opinion survey conducted by Professor Jin’s team from November 17 to 21 showed that 68.1 percent of the country is opposed to the idea.
The public consensus was one part of Professor Jin’s study. The actual conclusion of the final report of his study was that Korean government should implement alternative services for conscientious objectors. However, the Ministry of Defense announced the difficulty to implement alternative service system to the media, pointing out the result of consensus only, which is just a small part of the study. (Hankook Daily January 7, 2009 “the government highlighted the survey result only”) According to a newspaper (Daejeon News December 26, 2008 “Defense Ministry prematurely announced its objection to alternative service”), Professor Jin was very much offended to hear the announcement of the Korean Ministry of Defense, for it was contrary to what he really intended.
The MND simply chose to ignore the survey of opinion leaders released at the public hearing on December 19, 2008, where 85.5 percent of respondents indicated that they are in favor or alternative service. In fact, survey results have had showed different opinions according to who the survey was carried out by and what the intentions was. For example, polls conducted in September 2007 and in September 2008, by ‘Realmeter Institute’ (www.realmeter.net), a professional organization for a public opinion census, proved that the opinion in favor of alternative services has gained momentum. According to Realmeter, only 35.5 percent of Koreans were in favor of alternative services in September 2007. But in 2008, the public opinion was 44.3 percent for and 38.7 percent against alternative services, with those in favor much more than those in opposition. Another poll conducted by ‘961 Sample’ institute revealed that a large number of Koreans (55.9 percent) tend to recognize conscientious objection. What is more significant is that the Ministry of Defense, when announcing to introduce alternative civilian service for conscientious objectors on September 18, 2007, referred to the survey conducted by KBS, a broadcasting company where 50.2% of respondents consented to introducing an alternative form of service.
Actually, the opinion survey conducted from November 17 to 21, 2008 did not give necessary detailed information about conscientious objection and alternative services before asking opinions. That’s why some media such as TV (MBC December 24, 2008 “Alternative Service virtually called off, KBS December 24, 2008 “Public poll put off alternative service”), and newspapers blamed the Ministry for using biased opinion surveys to support its change in policy (Hankyoreh December 25, 2008 “How many more prisoners of conscience?”). Public consensus should be examined not merely for justifying their excuses, but for finding way to solve the problem. Professor Jin said that the more information about alternative services people get, the more favorable they become (NewsNJoy, February 15, 2009 “I feel deceived too”). Even though it is not plainly possible to reach public consensus, the violation of human rights of social minorities, which has been widely practiced for more than a half century, should not be handled from a standpoint of the majority which claims that alternative service can be offered only on the basis of public consensus.
So far, Korean government has not carried out its duty to implement alternative civilian services. The last National Assembly submitted a bill of alternative service, but the bill was repealed as the National Assembly completed its office. Lawmakers of the 18th National Assembly have not yet submitted a bill about alternative service.
Unfortunately, for approximately 60 years, the Republic of Korea has convicted almost 14,000 conscientious objectors to over 27,000 years in prison. Every year, 400 to 700 draft-age men who are Jehovah’s Witnesses are convicted and are usually sentenced to 18 months in prison. Conscientious objectors who are called up as reservists must face multiple prosecutions and repeated punishments over an eight-year period. As of December 31, 2008, there were 428 people imprisoned. Additionally, over 80 Witnesses are subjected to repeated fines totaling hundreds of thousands of dollars because of conscientious objection to military reserve duty. Korea convicts and imprisons the largest number of conscientious objectors to military service in comparison to any other country in the world.
2-2. recent developments related with CO issues
While the MB administration refused to establish alternative service, there have been some important developments concerning conscientious objection to military service.
On November 6, 2007, the Presidential Commission on Suspicious Deaths in the Military (CSD) decided to examine the death of five conscientious objectors who had refused to serve in the army during the 1970’s and 1980’s. The cases to be examined include the death of Jeong, Sang‑bok, who died right after refusing military training in 1976, and the death of Kim, Sun-tae, whose dead body was found near the training camp in 1981. In its press release, the CSD stated that a thorough investigation would be made to determine the reasons why these conscientious objectors had been subjected to harsh treatment.
On January 15, 2009, the Presidential Commission on Suspicious Death in the Military in Korea released its decision that the Korean government is responsible for deaths of five Jehovah’s Witnesses who were illegally hauled and inducted by force into the army. The deaths resulted from “the state’s anti-human rights violence” and “its acts of brutality” in the 1970s and mid 1980s. According to the decision, “the beatings and acts of brutality committed against them by military officers were attempts to compel and coerce them to act against their conscience (religion) and were unconstitutional, anti-human rights acts that infringed severely upon the freedom of conscience (religion) guaranteed in the Constitution.” This decision is significant because it acknowledges that the deaths of those conscientious objectors were caused by state violence.
As an example, the military record shows that Jeong, Sang-bok died of a disease however the Commission found out that he died from beatings and harsh treatments. Lee, Choon-gil and Kim, Jong-sik also died as a result of forcible marching followed by beatings and harsh treatments in the military. The Commission admits that the government is highly responsible for the deaths of five objectors including Kim, Seon-tae and Kim, Young-geun, because many evidence show that they were brutally abused before they died. The decision explains why most of 10,000 conscientious objectors in Korea have to deal with life-long health problems and post-traumatic stress. It also proves that their conscience is an earnest and strong command from the heart that can never be forsaken, and that should be protected by the State party. Because the Ministry has not presented any dissenting opinions, the decision has come into effect after 2-month period.
On April 18, 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 has requested that the Constitutional Court review Articles 6(1) and 15(8) of the Homeland Army Reserve Act, which forms 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.
On January 7, 2008, the director of the National Human Rights Committee submitted an opinion to the Constitutional Court, urging the Korean government not to penalize conscientious objectors to reserve military service and to implement alternative service along with recognition of the right to conscientiously object to military service.
The mentioned circumstances around conscientious objection show the importance of this issue in the Korean Society.
2-3. Complaints pending in the UN human rights committee
On May 2007, 11 new complaints were filed with the UNHRC by imprisoned conscientious objectors who are COs not based on religious reasons like Jehovah’s Witnesses.
From September 21, 2007 until November 6, 2007, 100 new complaints were filed with the UNHRC by imprisoned conscientious objectors who are Jehovah’s Witnesses. On December 7, 2007, these complaints were communicated to the Government of Korea.
By April 25, 2008, an additional 388 new complaints were filed with the UNHRC. On April 29, 2008, the UNHRC combined these 388 complaints into the case identified as communication No. 1786/2008 on behalf of Mr. Jong-nam Kim et al. and communicated these the Government of Korea.
The Korean Government’s reply on the communications filed by COs based on religious reason and not religious one were submitted to the UNHRC dated 14 November 2008, and Comments on the Korean Government’s reply on behalf of the 11 COs was handed in to the UNHRC on 23 February, 2009. Therefore, the dialogue is still going on and the consideration by the UNHRC will be followed accordingly.
[1] Since January 2008, the period of active military service has been deescalated and will be reduced to 18 months in the Army, 20 months in the Navy, and 21 months in the Air Force. Unlike the Army, the Navy and the Air Force are under a voluntary military service system.
[2] The provisions of Article 88 of the Military Service Act stipulates the imprisonment of three years or less for objection to active military service, and provisions of Article 90 of the Military Service Act stipulates the imprisonment of 6 months or less or a fine of up to 2 million won for objection to military training of the reserve forces.
[3] Report submitted by Mr. Abdelfattah Amor, Special Rapporteur on freedom of religion or belief, in accordance with Commission on Human Rights resolution 2002/40 (paragraphs 65-68), 15 January 2003, http://www.hri.ca/fortherecord2003/documentation/commission/e-cn4-2003-66.htm
[4] Riot police system has been criticized for a long time in Korean society, where it uses enlisted soldiers as riot police. Riot police system is a clear violation of Convention concerning Forced or Compulsory labour, No. 29 by International Labour Organization (ILO) where it is illegal to use the force for any other purpose other than military duties.