2016: Managing security & freedom of conscience
Kriegsdienstverweigerung in Südkorea
The Hankyoreh, 16.10.2016 / 23.10.2016
How South Korea must manage national security and freedom of conscience
Court set to rule on fate of conscientious objectors later this year, as human rights groups call for forms of alternative service
This year, South Korea’s Constitutional Court is supposed to rule on the constitutionality of the Military Service Act, which requires the prosecution of conscientious objectors.
This is the third time that the court has tried the case. While the court upheld the constitutionality of the law in 2004 and 2011, there are some cautious predictions that things may turn out differently this time.
The Hankyoreh met with people who chose to go to prison instead of serving in the military and heard about their past, their present and what they desperately desire for the future.
In March, a lawyer went to prison. Every day, he faces a gray wall in a cramped room, about 4.61 square meters in area. The prisoner is Baek Jong-geon, 32, who passed South Korea’s bar exam in 2008, enrolled in the 40th class at the Judicial Research and Training Institute and was on his way to becoming a lawyer.
Baek had violated Article 88 of the Military Service Act, which states that individuals who have been instructed to report for military service and refuse to serve without “justifiable grounds” are to be sentenced to a maximum of three years in prison. Baek was the first lawyer to break this law – which is not what you would expect of someone who by profession has to eat, sleep and breathe the law.
“I still have a vivid memory of what happened,” Baek said, recalling his memories. When a Hankyoreh reporter met him in July, he was sitting on the other side of the glass partition in the visiting room.
Baek was four years old when he met his father in the visiting room of the Daegu Prison in 1988. His father, Baek Seung-u, 57, had been court-martialed and imprisoned for insubordination. The elder Baek was a doctor – and a Jehovah’s Witness.
Baek continued in a steady voice. “I deeply respect the hard work and sacrifices of young people who serve in the military. I want to serve my country as they do, just in a different manner. I fought this for six years in the courts, calling for the introduction of an alternative form of civil service, but I eventually lost, and here I am,” he said.
Instead of the word “prison,” the Jehovah’s Witnesses use the word “neutral,” meaning that they are maintaining their military neutrality.
Instead of saying that they “go to prison,” they say they “go neutral.”
Baek is in prison not so that he can shirk his military service, but rather with the belief that he is staying neutral in military affairs.
“The prison guards tell us they know we can’t help being here and that we didn’t commit any crimes,” Baek said. The conscience that put him in prison earns him consideration instead of condemnation.
Conscientious objectors are generally given work assignments in the prison where help is needed. They are put in charge of looking after and nursing the elderly and those with dementia and of cleaning the offices used by prison staff. Thus, a sort of alternative service is being practiced inside the prison.
Conscientious objectors receive a relatively heavy sentence of 1.5 years
According to the 2015 judicial almanac published by the Supreme Court, 14% of people who are tried each year are sentenced to at least one year in prison, and 6% are sentenced to at least three years in prison (in terms of district court rulings). Conscientious objectors receive a relatively heavy sentence of one year and six months. This one year and six months is the desperate measure that judges take to prevent conscientious objectors from receiving another order to report for duty.
A few judges exonerate conscientious objectors on the grounds of the “judge’s conscience.” This year alone, judges issued two not guilty verdicts. These are strictly lower-court rulings that do not follow Supreme Court precedent.
A judge at one district court described the situation as follows: “All of us feel uncomfortable with these rulings. The issue could be solved by simply creating an alternative service system, but since there’s no law in place, we have to keep convicting conscientious objectors. Whatever preventive effect the punishment once had has vanished long ago. We keep convicting conscientious objectors, and more keep coming. It’s been the same for decades now. That means that the government should get involved and set up a program.”
Some prosecutors apologize to conscientious objectors when bringing charges against them, and some judges even shed tears when reading the sentence. Last year, 493 cases were brought against conscientious objectors; as of August of this year, there were 141. Baek is supposed to be released from prison in September of next year.
“Peace? Why don’t you keep the peace in your own country!” Lim Jae-seong, 36, a colleague of Baek’s, still recalls the tirade he heard from an official at South Korea’s Military Manpower Administration after he refused to report for duty in 2002.
“Do you have any idea that your mother came here in tears and begged us to postpone your enlistment because her innocent boy was going to prison?” the employee asked.
At the time, Lim was the student body president at a university in Seoul. Hearing about the innocent people dying in the US invasion of Iraq – including a South Korean, Kim Seon-il – further confirmed his decision to refuse to serve in the military.
When he was sentenced to one year and six months in prison, Lim remembers the judge addressing him in the following words: “You argue that your refusal to serve in the military is the way to stop war, but there has never been a time in human history without war. Preparing for war is the way to keep the peace.”
After prison, becoming a lawyer to help fellow conscientious objectors
Lim went to prison in Jan. 2005. After being released, he graduated from university and became a lawyer at Haemaru Law Firm in Apr. 2015. The man who broke the law has now become a lawyer defending others who intend to defy the Military Service Act.
“In my spare time, I represent conscientious objectors on a pro bono basis. The Busan District Court is currently trying Kim Jin-man [29-years-old] for breaking the Military Service Act. Just like me, Kim says that he is refusing to serve in the military because of his beliefs about peace,” Lim said.
“I’m not defending him so much as I’m giving him plenty of chances to talk in court. For their entire life, conscientious objectors are pestered about why they refused to serve in the military. Having had the chance to speak his mind in court will provide him some consolation when he goes to prison.”
At first, Lim’s mother couldn’t understand why he was refusing to do his military service, and for a while she didn’t visit him in prison. But as she was putting away the tofu that friends had given Lim upon his release from prison (according to a Korean custom), she said, “You didn’t commit a crime, so why should you eat tofu? If the government had made a law, this wouldn’t have happened.”
Lim plans to remain involved in the peace movement inside the legal establishment. He believes that that’s the right thing to do for his mother and for his country.
Kim Hun-tae, 37, a former teacher at Pyeongtaek Elementary School, was also a pacifist. Since it was his job as a teacher to impart the importance of peace to his students, Kim was keenly aware of the absurdity of the fact that he had to serve in the military.
After weighing over his options, he declared his refusal to perform his military service in Mar. 2006. As a result, he went to prison and lost his teaching job. Kim is still not allowed to return to the podium, and he currently earns his living as a researcher for an educational research institute.
“It hurt at first. Teaching is a very important job, and I also had a family to take care of. It also meant I had to say goodbye to the students I loved. I believed that I could teach those kids something important by showing them how I was putting peace into practice,” Kim said.
Ten years have already passed since Kim declared he would not do his military service. The students who watched their teacher go to prison are now old enough to do their own military service, and Kim still hears from them. “I tell the kids not to hesitate about going to the army. Going to the army is a belief, too,” he said.
Ten years ago, Kim’s students sobbed as they begged him not to go to prison. While Kim was sad about having to leave his students, he points out that this gave him the opportunity to stand tall and tell them to be the master of their own lives.
Buddhist’s conscientious objection has big impact on other pacifists
Lim Jae-seong and Kim Hun-tae’s decisions to refuse to do their military service for non-religious reasons were greatly influenced by the example of Oh Tae-yang, 41, in 2001. Oh was not a Jehovah’s Witness but a Buddhist. He stirred up controversy when he refused to join the military because of the Buddhist prohibition against taking life and because of his commitment to pacifism. Since being released from prison, he has been working as an activist at pacifist organizations.
“My beliefs haven’t changed over the past 15 years,” said Oh in a telephone interview with the Hankyoreh on Oct. 6. “Some people ask me if I regret going to prison as a conscientious objector.
The thing is, I don’t ask people who choose a career in the military if they’ve ever regretted their choice.
They’re acting on their beliefs.”
“Here’s what I’ve learned since refusing to serve in the military. People who think that we need an army are just as concerned about their country as I am; the only difference is how we show it.”
While Article 88 of the Military Service Act does say that there are “justifiable grounds” for not serving in the military, the Supreme Court and the Constitutional Court have consistently ruled since 2004 that the freedom of conscience is not one of these grounds. But there is considerable basis for the view that the government is violating the Korean Constitution when it continues to prosecute conscientious objectors without offering them another option, such as creating an alternative service system. Article 37,
Paragraph 2, of the Korean Constitution states that “the freedoms and rights of citizens may be restricted by Act” for reasons of national security but that “no essential aspect of the freedom or right shall be violated.”
Increasing international pressure and interest on forthcoming ruling
There is also increasing pressure from the UN. In Oct. 2015, the UN Human Rights Council (UNHRC) recommended that the South Korean government immediately release all conscientious objectors who are serving prison sentences. This recommendation was seen as particularly forceful since it went beyond suggesting an alternative service system and explicitly called for the release of prisoners. According to a report published by the UNHRC in 2013,
723 conscientious objectors were imprisoned in countries around the world at the time, and 92.5% of them were South Koreans.
During an interview with the Hankyoreh on Sep. 20, well-known TV personality Yang Ji-woon, 68, and his wife Yun Sook-gyeong, 60, expressed their concern that their third son, Won-seok, 25, might have to join the 92.5% of imprisoned conscientious objectors worldwide who are in South Korea.
The couple have already watched their first and second sons go to prison. Yang and his family are all Jehovah’s Witnesses. On Apr. 21, a district court found Won-seok guilty of violating the Military Service Act, and he is currently waiting for his appeal.
“I watched as my two older brothers [aged 36 and 26] went to prison. I figured that I would probably go to prison myself one of these days. According to the conscience I learned through the scriptures, I am opposed to serving for any army that prepares for war,” Won-seok said. Beside Won-seok was his mother, Yun, who burst out crying as she listened to him speak.
“I would rather go to prison [instead of my son]. You just can’t imagine what it feels like for parents to send all three of their boys to prison. For the past 16 years [since May 2000, when my oldest son went to prison], I’ve had constant nightmares. Every day I see my three boys being dragged away with irons on their legs. I told my son he ought to apply for asylum instead, but he insists on going to prison,” Yun said.
“I can’t just leave the country because it would be easier for me. I have to play some part so that the next generation doesn’t have to suffer, too,” Won-seok said as he comforted his mother.
“I’m not asking for my son to be excused from his military service; I’m asking for them to come up with some way for him to serve his country for a long time. Isn’t it about time for something like that? There’s a saying that even the law can cry,” said Yang, her forehead scored with wrinkles.
The Constitutional Court is planning to make a ruling about the constitutionality of Article 88 of the Military Service Act (the section that calls for the prosecution of conscientious objectors) as early as the end of the year.
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