On February 10, 2011, Baek Jong-geon conscientiously objected to mandatory service in South Korea’s military. The 26 year old Jehovah’s Witness faces eighteen months in jail for violating the country’s Military Service Act (MSA), which requires all 19 to 35 year old Korean men to serve a 21 to 24 month long military commitment. The MSA fails to recognize the right to conscientiously object to military service – a right derived from the freedom of thought, conscience, and religion protected under Article 18 of the International Covenant on Civil and Political Rights (ICCPR). Instead of providing proportionate and non-punitive alternative service options as recommended by the United Nations Commission on Human Rights (Commission) (now replaced by the Human Rights Council), South Korea regularly imprisons conscientious objectors – a practice that infringes upon the right to conscientiously object, thereby violating the country’s international obligations as a State Party to the ICCPR.
Jong-geon, who aspires to join the legal field, passed the South Korean judicial examination in 2008, making him eligible to become a judge, prosecutor, attorney, or military judicial officer. In order to complete this process, Jong-geon is obligated by the MSA to fulfill the mandatory military service. By refusing to do so, Jong-geon faces a five-year bar from becoming a judge, prosecutor, or attorney in addition to the eighteen-month jail sentence. Conscientious objectors in South Korea often face other consequences, such as loss of licenses and business permits, prohibition from jobs in any state agency, and social stigmatization. As of February, 2011, 955 men were serving prison sentences for conscientious objection – a fraction of the 15,000 men who have served time for the crime over the last fifty years. Jong-geon’s situation is representative of the larger problem in South Korea, both for Jehovah’s Witnesses who see military service as inconsistent with their religion, and for others who conscientiously object to military service, because by imprisoning these individuals, South Korea is failing to protect the right to conscientiously object.
While the right to conscientiously object to military service is not explicitly granted by the ICCPR, the Commission has repeatedly recognized it as implicit in the right to freedom of thought, conscience and religion outlined in Article 18 of the ICCPR. In 1987, the Commission adopted Resolution 1987/46, which recognized that conscientious objection “derives from principles and reasons of conscience, including profound convictions, arising from religions, ethical, moral or similar motives.” The Commission went a step further in 1989 when it recognized conscientious objection as a right deriving from the rights to freedom of conscience, thought, and religion established in Article 18 of both the Universal Declaration on Human rights and the ICCPR. In so finding, the Commission called on States Parties to the ICCPR requiring military service to introduce proportionate, non-punitive alternative service options. While providing alternative service options is not obligatory, it is recommended by the Commission as a best practice in lieu of measures like imprisonment or discrimination.
Late South Korean President Roh Moo-hyun was sympathetic to the plight of conscientious objectors, and in 2007, the Ministry of National Defense announced that alternative service options for conscientious objectors would become available in 2009. However, shortly after President Lee Myung-bak’s 2008 inauguration, and a month prior to implementation, this plan was postponed indefinitely and has yet to be reintroduced. Affected parties filed suit in South Korea’s Constitutional Court and await a ruling on the constitutionality of the MSA. Regardless of the outcome, South Korea’s imprisonment of conscientious objectors and failure to introduce alternative service options violates the country’s international obligations under the ICCPR.