Supreme Court rules that conscientious objection to military service is not a crime

Posted on : 2018-11-02 17:46 KST Modified on : 2019-10-19 20:29 KST
Dissenting judges cite impossibility of determining objectors’ sincerity
The full bench of the Supreme Court of Korea before its ruling that conscientious objection to military service is not a crime on Nov. 1. (Kim Jung-hyo
The full bench of the Supreme Court of Korea before its ruling that conscientious objection to military service is not a crime on Nov. 1. (Kim Jung-hyo

The parade of nearly 20,000 prosecutions since 1950 has come to an end. South Korea’s Supreme Court has ruled for the first time that conscientious objection to military service – the refusal to enroll or bear arms for reasons of religion or conscience – is not a crime. This ruling is regarded as going a step beyond the ambiguous decision by the Constitutional Court in June that the punishment clause in the Military Service Act is constitutional but that that the failure to provide an alternate form of service is not.

The full bench of the Supreme Court (under Chief Justice Kim Myeong-soo) overturned the prison sentence of one year and six months given to a 34-year-old Jehovah’s Witness named Oh Seung-heon, 34, who was convicted of violating the Military Service Act by refusing to report for duty in the army in July 2013, and remanded his case to a panel at the Changwon District Court with instructions to acquit.

“Compelling conscientious objectors to perform their military service by imposing sanctions such as criminal prosecution constitutes a threat to basic rights including the freedom of conscience. Uniformly compelling the performance of the duty to provide military service and using criminal prosecution to sanction those who fail to perform this duty also goes against the spirit of liberal democracy, the spirit of tolerance and magnanimity. The opinion of the majority is that refusal to serve in the military that is truly motivated by conscience is one of the ‘legitimate reasons’ that the Military Service Act lists as an exception to prosecution,” the full bench said in its judgment.

Among the 13 judges on the court, eight justices -- Kim Jae-hyung, Kwon Soon-il, Cho Jae-youn, Park Jung-hwa, Min You-sook, Kim Seon-soo and Noh Jeong-hee, along with Chief Justice Kim Myeong-soo – joined the majority opinion. Lee Dong-won submitted a separate opinion stating that he would join the majority opinion on the condition that there are no concerns about national security. Kim So-young, Jo Hee-de, Park Sang-ok and Lee Ki-taik issued a dissenting view supporting the guilty verdict.

“It is impossible to assess the sincerity of conscientious objection. Considering the grave security situation and the fairness of military service in the world’s only divided country, conscientious objection to military service is unacceptable,” the dissenting judges said.

Standards for judging conscientious objection

This not guilty verdict (by a margin of 9 to 4) reversed the guilty verdict (by a margin of 11 to 1) issued by the Supreme Court’s full bench in 2004, just 14 years ago. The Supreme Court also issued new standards for distinguishing conscientious objection based on religion and conscience. The court defined the “conscience” in conscientious objection to military service as being “convictions that are deep, firm and true.”

“To be true, convictions must affect every thought and action of the individual, and all aspects of life, and not just a part, must fall under their influence,” the court said. This means that religion must not be feigned simply as a way to dodge the draft. The court continued: “Even if a conscientious objector has convictions that are deep and firm, if their actions waver with the circumstances, they can hardly be regarded as true.”

In light of these standards, the Supreme Court providing the following grounds for recognizing the “veracity of [Oh’s] conscience and convictions”: he joined his faith at the age of 13; he has refused to report for duty on religious grounds from the time he first received his enlistment orders in 2003 until now; his father and younger brother also went to prison for the same reason; and he was willing to risk criminal prosecution despite having a wife, young daughter and newborn son depending on him.

In addition to this, the Supreme Court listed criteria to prevent the abuse of religious creeds for conscientious objection. Even if the creed of the faith in question calls for the rejection of military service, courts should consider whether other followers of that faith refuse to perform their military service, whether the individual is recognized as a believer by a relevant religious body, and whether they abide by the creed in its entirety. Along with this, other important criteria are the individual’s motivation for holding their faith; in the case of a conversion, their reasons for doing so; the period of their belief; and their actual religious activity.

There are some troubling aspects of this decision, including the fact that the question of whether conscientious objectors’ conscience is “deep, firm and true” will become a matter for the courts to decide. The Supreme Court said that the trials should proceed in the following manner: “The defendant must provide materials showing that their convictions are deep, firm and true and that therefore their objection to military service is based on an urgent and concrete conviction, and the prosecutors must criticize and attack the reliability of those materials and demonstrate that there is no ‘legitimate reason.’” This is quite likely to lead to a new controversy about the “sincerity of conscience,” a matter that is not easy to determine. As of the end of October, there are currently 227 cases related to conscientious objection pending in the courts.

Speeding up legislation for alternative service

In contrast with the Constitutional Court’s ambiguous ruling in June that punishing those who refuse to perform their military service is constitutional but that conscientious objectors should not be prosecuted, the Supreme Court’s ruling has made clear that such punishment is unfair and that conscientious objectors are not guilty. The Constitutional Court said that the problem with prosecuting conscientious objection to military service is the lack of an alternative form of service and ordered the courts to resolve the issue by acquitting the accused.

But the Supreme Court did not accept the Constitutional Court’s logical argument that was centered on an alternative form of service. “The question of whether conscience will be accepted as ‘legitimate grounds’ for refusing to perform military service is unrelated to the presence or absence of an alternative form of service,” the Supreme Court said.

The Supreme Court’s acquittal makes it even more urgent for lawmakers to draw up an alternative form of service by Dec. 31 of next year, which is the legal deadline set by the Constitutional Court’s decision. However, the alternative service plan that the government will soon be announcing is likely to mandate 36 months of service at correctional facilities, which is two times as long as active soldiers serve in the army. This is prompting criticism that such an alternative service regime will be punitive, clashing with the spirit of the rulings by the Constitutional Court and the Supreme Court.

By Yeo Hyeon-ho, staff reporter

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