South Korea’s Imprisonment of Conscientious Objectors: Examining the Dispute Over the Meaning of the ICCPR

United Nations Headquarters in New York By Steve Cadman

United Nations Headquarters in New York By Steve Cadman

October 24, 2015

Earlier this month, the New York Times published a report detailing the ongoing legal struggles of conscientious objectors in South Korea, who face prison terms for their refusal to serve in the country’s military—a requirement for all able-bodied men under South Korea’s Military Service Act.  According to Amnesty International, South Korea imprisons more people for conscientious objection to military service than the rest of the world combined, sending an average of 600 to 700 conscientious objectors to prison each year, typically for a term of 18 months.

Nearly all of those imprisoned are Jehovah’s Witnesses, who over the years have filed appeals to the Constitutional Court of Korea seeking a ruling that the Military Service Act violates their rights to freedom of conscience and religion as guaranteed by the country’s constitution.  There is optimism that their longstanding legal battle will finally come to an end, as the Constitutional Court is expected to render a decision on several petitions by the end of this year.

Unsurprisingly, the imprisonment of conscientious objectors has drawn the attention of the United Nations.  The UN Human Rights Committee has “repeatedly urged South Korea to allow alternative service for conscientious objectors,” stating that the imprisonments are a violation of the International Covenant on Civil and Political Rights (ICCPR), to which South Korea is a party. The article goes on to state that “South Korea interprets the covenant differently.”

While the article does not elaborate on South Korea’s interpretation, a look at the text of the ICCPR provides some insight into the nature of the dispute.  The right to freedom of thought, conscience, and religion is set out in Article 18(1) of the ICCPR, which states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Clearly, the text of the ICCPR does not explicitly guarantee protection for the right to conscientious objection.  Thus, one can reasonably believe that South Korea acted in good faith when they signed onto the covenant in 1991, despite its harsh treatment of conscientious objectors which began decades earlier.  As the Times points out, the abuse of conscientious objectors was “one of the worst and most ignored human rights violations under the military dictatorship of the 1970s.” In 2008, the country’s own National Human Rights Commission attributed the deaths of five Jehovah’s Witnesses between 1975 and 1985 to “routine” beatings and torture of conscientious objectors by military personnel.

The UN Human Rights Committee would eventually address the lack of an explicit guarantee of protection for conscientious objectors.  In 1993, the Committee issued General Comment 22 to address this lack of an explicit guarantee in Article 18:  “The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.”

Even if we accept the Committee’s comment as effectively amending Article 18(1), Article 18(3) allows signatory countries to place limitations on its citizens manifestations of religion or belief (e.g., conscientious objection) “as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

This provision provides an explanation for South Korea’s assertion that it is not in violation of the ICCPR.  As the Times points out, the government of South Korea believes that conscription into the military is necessary for the country’s national security given its proximity to and longstanding tensions with North Korea.  As one official quoted in the article put it: “North Korea remains a direct and present military threat.… If we introduce alternative services, we would see a sharp rise in the number of people evading the draft under the pretext of conscience.”

The plight of conscientious objectors in South Korea reflects the limitations of international institutions, namely that they can promote norms and ideals, but that the decision to abide by them ultimately rests with sovereign nations and their citizens and institutions.  While we may lament this reality, history has shown that changes imposed from the inside are more meaningful and enduring for a country and its people.  As outsiders, we can only hope that the Constitutional Court makes the right decision this year.

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