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Should conscientious objectors be jailed?

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Published : 2011-09-19 20:09
Updated : 2011-09-19 20:10

With U.N. and Korean rights panel calling for Korea to end the practice ...
Should conscientious objectors be jailed?

Obligations of service

All able-bodied Korean men are required to undertake at least 21 months of military service, a measure to maintain a strong military in face of the threat posed by North Korea. Men who dodge their mandatory service without due cause are liable to up to three years in prison. This includes so-called conscientious objectors who refuse to enter the military on religious or ethical grounds.

Currently, there are about 850 people imprisoned in Korea for refusing military service on conscientious grounds. The majority of these are Jehovah’s Witnesses, but there are many who follow other religions or are non-religious. The previous Roh Moo-hyun administration had planned to provide alternate types of service for objectors, but those plans have been postponed indefinitely since President Lee Myung-bak took office in 2008.

Korea’s current stance has drawn criticism from The U.N. Human Rights Committee, which argues that Korea is violating article 18 of the International Covenant on Civil and Political Rights which guarantees freedom of thought and conscience. Others such as the Ministry of Defense see mandatory military service as a matter of national security and social cohesion. Allowing exceptions, it says, would encourage people to take advantage of the system and risk national defense. This view was supported by Constitutional Court in August which held that punishing those who refuse military service did not infringe on their basic rights.
All able-bodied Korean men are required to serve in the military for at least 21 months. (Yonhap News)

Yes: Military service is a national duty

The issue over whether a right to conscientious objection has to be recognized should be dealt with based not only on freedom of conscience, but also on the fact that the military service is a national duty stipulated in Article 39 of the Constitution.

Military duty is a personal burden given equally to all male citizens. Thus, they are not given the right to choose whether to go to the military as having that right runs afoul of basic national duty.

On top of that, when an individual right to freedom of conscience clashes with the military duty, which is at the national level, it is a common sense that the priority should be given to the latter.

If we accept the right to conscientious objection, there is a possibility that some would claim that we should also accept the right to deny carrying out their obligation to pay taxes based on individuals’ consciences. There could be cases in which some refuse to pay taxes, arguing the government is not appropriately spending the taxes they have paid.

It is evident that if we acknowledged conscientious objections to military and taxation duties, this would destabilize the national order and threaten the existence of our nation.

What’s more, it would be right to say that conscientious objection is hardly acceptable within our constitutional system as, above all, it runs counter to the principle of equality.

Clause 1, Article 11 of the Constitution states, “All citizens are equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion and social status.”

If conscientious objection is only allowed for Jehovah’s Witnesses, this would result in religious discrimination. This would likely trigger complaints from other religions, as Buddhism, Christianity and others in principle forbid the taking of life.

Given all this, allowing only Jehovah’s Witnesses to conscientiously object to mandatory service would be against the principle of equity. It would also be legally impossible as it could constitute a country’s violation of political and social neutrality on particular system or religion.

This is also true for the cases of those who object to their military duty based on their peace-loving, anti-war beliefs. If allowed, this would be tantamount to the creation of a special social class, which Clause 2, Article 11 of the Constitution prohibits.

Thus, the thought of allowing only a person with a special belief to object to their military service or to have an alternative option instead of going to the military is also unconstitutional.

This is why we cannot look at conscientious objectors from the perspective of minorities’ human rights. By allowing them to object to military service on the pretext of human rights, we will end up conniving with their abandoning of a national obligation under the mask of freedom.

Today, there are some 40 countries that recognize their citizens’ right to conscientious objection to military service. They include Germany, Austria, Denmark, Russia, Poland, Spain and Cuba. All these countries have a very good security environment with little threat of a war with neighboring states.

But the situation in our country is different. Still in a military standoff with North Korea, which is the most closed society in the world, South Korea is the world’s second most vulnerable state in terms of security after Israel.

To add insult to injury, the Korean Peninsula is in a state of truce, and there have been a set of inter-Korean naval skirmishes in the West Sea in recent years. I cannot help but say it is irresponsible to recognize the right for conscientious objection without due consideration of such security conditions.

In this regard, conscientious objection cannot be recognized as a “right” within our constitutional framework. It is a critical “violation” on military duty. Currently, there is a conscription law to enforce the military service law.

Clause 1, Article 88 of it states that evading military duty or refusing to respond to a call for active duty “without just reasons” is punishable by up to three years in jail. This article is definitely necessary to secure the effectiveness of the law and realize the justice in military service.
Jhe Sung-ho

By Jhe Sung-ho

Jeh Sung-ho is law professor at the law school of Chung-Ang University.― Ed.


No: Objectors should not be locked up

Despite proision for the right to freedom of conscience in South Korea’s constitution and obligations under international law which guarantee this right, the South Korean government continues to imprison individuals who raise a conscientious objection to military service.

Around 850 people are currently imprisoned in South Korea for conscientiously objecting to military service.

Moon is currently imprisoned in South Korea for refusing to undertake compulsory military service. The Military Manpower Administration issued Moon an order to enlist in November 2010 but rather than accept, he organized a press conference in front of the Ministry of Defense and declared his refusal to undertake military service. He was sentenced to 18 months’ imprisonment. Before his imprisonment Moon traveled around the world as a peace activist participating in training and seminars.

The right to refuse military service for reasons of conscience or profound personal conviction is inherent in the right to freedom of thought, conscience and religion set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

As such, compulsory military service without provision for conscientious objectors, and the imposition of penalties on those refusing military service for conscientious reasons, violates these rights.

In 2006, 2010, and again in 2011 the U.N. Human Rights Committee, after reviewing petitions from South Korean conscientious objectors, declared that South Korea was violating Article 18 of the ICCPR, the provision that guarantees the right to freedom of thought, conscience and religion.

The National Human Rights Commission of Korea, in December 2005, recommended an alternative civilian service for conscientious objectors.

In November, South Korea’s Constitutional Court convened a hearing on whether criminal punishment for conscientious objectors to military service constitutes a violation of rights as protected in the Constitution. They also considered whether failure to provide alternative service options for violates their right to freedom of conscience. But in a major setback for the rights of conscientious objectors, the Court ruled on Aug. 30 that conscientious objection to military service is not protected in the Constitution.

Amnesty International made a submission to the Court noting: “The weight of international standards and guidance from jurisprudence of the Human Rights Committee ... support the protection of conscientious objection to military service under the right to freedom of thought, conscience and religion in particular as provided in Article 18 of the ICCPR.”

The result of this case means that conscientious objectors in South Korea will continue to face imprisonment.

The Court’s ruling runs counter to all the U.N. Human Rights Committee’s rulings on South Korea, the most recent of which, earlier this year, on the case of 100 Jehovah’s Witnesses, again found that the South Korean government has violated Article 18 of the ICCPR by imprisoning conscientious objectors. The South Korean government has until Sept. 20 to provide information about the measures it is taking to give effect to the findings of the Human Rights Committee.

The South Korean government argues that introducing an alternative service would jeopardize national security and undermine social equality and cohesion.

But an increasing number of countries which retain compulsory service have introduced alternatives. In addition, some countries, including those with national security concerns have shown that alternative service can be successfully implemented.

Making provision for conscientious objectors need not undermine South Korea’s policy of universal conscription. The Human Rights Committee has pointed out that it is possible to have alternative service that is of a genuinely civilian character which renders an equivalent social good and makes equivalent demands on individuals.

In order to provide for conscientious objectors, alternative service should be of a genuinely civilian character and under civilian control, and not punitive in length or nature. Alternative service is surely a better solution than prison, which offers no benefit to society.

South Korea must uphold its obligations under international human rights law by establishing alternative service for conscientious objectors at the earliest opportunity.
 
Sam Zarifi

By Sam Zarifi

Sam Zarifi is the Asia-Pacific Director of Amnesty International. ― Ed.