President Yoon Suk Yeol's martial law decree has triggered nationwide scrutiny not only of the president himself, but also of others involved in its execution.
The investigation into the declaration has expanded to encompass a wide range of individuals, from high-ranking military generals to the police commissioners who deployed rank-and-file personnel to determine their roles and whether they violated the law.
Some have claimed they were merely following orders from the president and defense minister at the time, while others have said they defied orders -- such as to arrest certain politicians -- realizing these actions were unconstitutional.
As the probe deepens, public attention is shifting toward the potential consequences for those implicated in the controversial declaration. Below are questions and answers that delve into the potential legal consequences for those involved in the martial law decree, with insight from historical precedents and experts' opinions.
Q. What crimes are authorities investigating?
A. The main potential charge is insurrection, defined under South Korean law as a violent uprising intended to overthrow the constitutional order or remove state power from any part of the nation's territory.
Insurrection differs from treason, which involves plotting with foreign entities to instigate military action against South Korea or coordinating with foreign parties to engage in combat actions. Coups, on the other hand, are addressed separately under military law, which specifically applies to military personnel and classifies such actions as revolts.
Korean authorities have been zeroing in on the Dec. 3 martial law declared by President Yoon Suk Yeol over its legality and the intention behind it, suspecting it as an insurrection attempt with military and police forces mobilized to blockade key state institutions, including the National Assembly in Yeouido, Seoul, and the National Election Commission's headquarters in Gwacheon, Gyeonggi Province.
Q. How severe are the punishments for insurrection?
A. Legal provisions outline three distinct tiers of punishment.
Masterminds: Those orchestrating the insurrection face the harshest penalties, including life imprisonment or the death penalty.
Key participants: Individuals directly responsible for critical aspects of the insurrection can be sentenced to a minimum of five years to life imprisonment.
Accomplices: Those providing support or assistance face lighter penalties, with sentences of up to five years in prison.
With Yoon now formally charged by the prosecution as a "mastermind" of insurrection, the scope of accomplices continues to expand from high-ranking officials to rank-and-file personnel.
Q: Who are the key suspects?
A: Several high-ranking officials in the military have been identified as central to orchestrating and executing the martial law declaration.
Kim Yong-hyun, who was then minister of national defense, is accused of proposing martial law to Yoon and drafting its strategic framework. Kim resigned shortly after the declaration collapsed and is now detained for further investigation.
Gen. Park An-su, then Army chief of staff, acted as martial law commander. Park testified that while he had not been aware of the martial law plan in advance, he had discussed how to implement the plan with Yoon and directed the deployment of police and military forces to the National Assembly. Charges also include issuing the martial law decree under his name.
Lt. Gen. Yeo In-hyung, then the defense counterintelligence commander, reportedly ordered the detention of Yoon’s political opponents and troops to seize servers at the National Election Commission in Gwacheon, Gyeonggi Province.
The three initially denied their involvement, but as evidence and testimony countering their claims emerged, investigators sought arrest warrants to detain them. In addition, Lt. Gen. Kwak Jong-geun, then chief of the Special Warfare Command, Lt. Gen. Lee Jin-woo, then head of the Capital Defense Command, and Maj. Gen. Moon Sang-ho, then head of the Defense Intelligence Command, have also been detained for executing troop deployments to key institutions after martial law was declared.
Q: How did accomplices to martial law fare in previous cases?
A: The Dec. 3 declaration that sent troops to the National Assembly and the National Election Commission has been compared to the coup of Dec. 12, 1979, led by then-military intelligence commander Chun Doo-hwan, when the country was under the Martial Law Command Order of Oct. 27 that year, shortly after the longtime dictator, President Park Chung-hee, was assassinated.
Through the coup, Chun seized power and formally became president of the country in the following year. He ruled the country for eight years, leaving no room for questioning the legality of the coup under martial law. After Roh Tae-woo, another general and key figure in the 1979 coup, succeeded him as Korea's first democratically elected president in 1988, Chun continued to evade accountability. Chun, Roh and other accomplices were finally brought to trial in 1995 under President Kim Young-sam.
After 12 months of investigations and trials, Chun Doo-hwan was sentenced to life imprisonment, while former President Roh Tae-woo received a 17-year sentence. Other military generals involved in the coup were sentenced to seven to eight years. However, all were released after they were pardoned in 1997 at the advice of President-elect Kim Dae-jung, a former pro-democracy activist. Kim‘s decision aimed to foster political reconciliation and end ongoing confrontations.
Experts believe that such historical precedents will likely influence the approach to prosecuting Yoon and his allies.
“While each case must be judged on its own merits, the 1979 Dec. 12 coup trials demonstrated that even individuals in the highest positions of power are not above the law,” said Lee Chang-hyun, a criminal law professor at Hankuk University of Foreign Studies.
“The legal framework established during those trials provides valuable insights into addressing similar insurrection attempts in the present day.”
Q. Is "just following orders" a valid legal defense?
A. According to Lee of HUFS, the degree and nature of defiance will play a crucial role in determining liability.
For instance, Cho Ji-ho, commissioner general of the Korean National Police Agency, has positioned himself as an exception among implicated officials, arguing he actively obstructed the execution of martial law.
During National Assembly hearings, Cho testified that around three hours before the martial law declaration Yoon summoned him to a presidential safe house in central Seoul. There, Yoon handed him a document listing institutions to be controlled under martial law, which Cho claims to have later torn up upon returning to his office. Cho also stated that he ordered police to allow lawmakers to enter the National Assembly while executing orders by Yoon after martial law was declared.
“If Cho’s claims are substantiated by evidence or witness testimonies, his defiance could weigh significantly in reducing his liability,” Lee said. However, Cho’s role in personnel deployments remains under scrutiny, he added.
Q. Will rank-and-file personnel face prosecution?
A. Approximately 1,500 military personnel, apart from police, were reportedly deployed during the martial law crisis.
While their presence was instrumental in executing orders, Lee highlights that their actions may not constitute insurrection charges due to the constraints of hierarchical discipline and limited decision-making authority.
“Uniformed personnel are generally required to comply with their superiors’ orders. For rank-and-file officers or low-ranking soldiers, especially in an extraordinary situation like martial law, discerning the legality of directives would have been challenging,” Lee explained.
He added that efforts by these personnel to minimize civilian and property damage at the scene could further shield them from legal consequences.
Q. Will Cabinet members be held responsible?
A. Cabinet members who attended a meeting that convened around eight minutes before the martial law declaration also face scrutiny.
Prime Minister Han Duck-soo, who is now acting president, and other ministers have claimed they opposed the martial law plan and distanced themselves from the decision.
At a National Assembly hearing Friday, Han denied approving the plan, stating he did not sign any related documents.
Instead, he acknowledged his responsibility as having been informed of the discussions and explained, “I did not support the measure and voiced concerns about its ramifications, but I lacked the authority to overturn the decision.”
Han further emphasized that all Cabinet members expressed opposition during the meeting.
He also criticized Yoon’s unilateral declaration as unlawful, highlighting that it bypassed the prime minister’s consent, a requirement under South Korean law.
However, Lee argues that the Cabinet members’ claims of noninvolvement may not absolve them of responsibility.
“Given their positions, a more proactive stance was expected. Their passive response during the pre-martial law meeting could be interpreted as complicity,” he said.
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