PD20181114_별첨자료_양심적 병역거부 대체복무제 유엔 특보 전달 서한

South Korea Must Introduce Alternative Service that is Compatible with International Human Rights Standards Submitted by Amnesty International Korea, Lawyers for a Democratic Society – Minbyun, Military Human Rights Center Korea, People’s Solidarity for Participatory Democracy and World Without War We are submitting this communication to inform the UN Special Rapporteurs on the current discussion on introducing alternative service for conscientious objectors in the Republic of Korea (South Korea). After the recent ruling at the Constitutional Court which ask the South Korean government to introduce alternative services until 31 December 2019, the Government formed a working group to draft a bill for alternative service. However, the draft bill proposed by the Government working group does not conform to international human rights standards due to its punitive elements according to media reports and informed sources.1 This clearly goes against the recommendations given to the Government by several UN human rights mechanisms on introducing alternative service for conscientious objectors. The Government plans to announce the bill for the introduction of alternative service in the next few weeks and it is imperative that this bill is in line with international human rights standards.

1. Background South Korea operates a system of military conscription under which all male citizens should serve in the military for 21 months.2 Unfortunately, there is no alternative service for conscientious objectors even though recommendations have been repeatedly made to South Korean government by various UN human rights mechanisms to introduce such service. Every year, hundreds of men have been to prison for exercising their freedom of thought, conscience or religion or belief in the South Korea) (see Table 1. According to Jehovah’s Witnesses, more than 19,300 conscientious objectors have been imprisoned in the country over the last 68 years, an accumulative total of 36,800 years of confinement.3

Table 1: Conscientious Objectors in South Korea Since 20094 Type No. Jehovah’s Witness Other personal belief

(Unit: persons)

No.

-July 2018

2017

2016

2015

2014

2013

2012

2011

2010

2009

5,450

71

461

557

493

565

623

598

633

721

728

5,413

67

460

555

490

564

615

597

627

715

723

37

4

1

2

3

1

8

1

6

6

5

Minkyung Kim, ‘36 months in prison? Controversy over “punitive nature” of govt’s alternative service bill’, Hankyoreh, 31 October 2018, http://www.hani.co.kr/arti/society/society_general/868172.html (in Korean).

2 The period of service will be reduced to 18 months by 2020 in case of the army. See Footnote 17.

3 Jehovah’s Witnesses, Jehovah’s Witnesses currently in prison, available at https://www.jw.org/en/news/legal/by-region/southkorea/jehovahs-witnesses-in-prison/.

4 Cited in National Human Rights Commission of Korea, Opinion on Bill on Admission into and Serving Alternative Service, p. 6, https://tinyurl.com/NHRCKaltservice (in Korean). For an English press release on the opinion, see: https://tinyurl.com/NHRCK-opinion.

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2. Current situation at the Courts The Constitutional Court ruled on 28 June 2018 that Article 5(1) of the Military Service Act5 did not conform to the Constitution as it did not include provisions for alternative service for conscientious objectors to military service.

This ruling gives the South Korean government until 31 December 2019 to introduce alternative service. This ruling was followed by a Supreme Court ruling on 1 November 2018 in which it ruled in a full bench decision by 9-4 that a Jehovah’s Witness objecting to military service for reasons of conscience could not be punished under Article 88(1) of the Military Service Act.6 The ruling deems conscientious objection a “justifiable ground” for failing to enlist or comply with a call up within a prescribed period after receiving notification.

At the time of the Supreme Court ruling, approximately 100 individuals remained imprisoned. This ruling also followed a total of 118 acquittals of conscientious objectors at lower courts since 2004 and is expected to have an influence on over 966 cases pending at courts of all levels including over 200 pending at the Supreme Court.7 It is unclear at the time of writing what steps the government intends to take to address their release and provide remedy for all of those affected such as through pardon, expunging criminal records and/or compensation.8 Importantly, in a supplementary opinion submitted to the majority opinion by Justices Park Jung-hwa, Kim Seonsoo and Noh Jeong-hee they write that: “the International Covenant on Civil and Political Rights ratified by South Military Service Act Article 5(1) (Categories of Military Service): Military service shall be classified as follows: <Amended by Act No. 11849, Jun. 4, 2013; Act No. 14183, May 29, 2016> 1. Active duty service: Any of the following persons: (a) Men enlisted in the military through conscription or volunteering; (b) Officers, warrant officers, noncommissioned officers, and officer cadets appointed or selected to serve on active duty as prescribed by this Act or the Military Personnel Management Act; 2. Reserve service: Any of the following persons: (a) Persons who have completed active duty service; (b) Other persons transferred to reserve service pursuant to this Act; 3. supplementary service: Any of the following persons: (a) Persons found to be capable of serving on active duty as a result of a draft physical examination, but not determined as those subject to enlistment in the military as active duty soldiers due to the supply and demand conditions of the armed forces; (b) Any of the following persons, who are performing or have completed their service or mandatory service: (i) Social work personnel; (ii) Deleted; <by Act No. 13778, Jan. 19, 2016> (iii) Art and sports personnel; (iv) Public health doctors; (v) Doctors exclusively in charge of the draft physical examination; (vi) Deleted; <by Act No. 13778, Jan. 19, 2016> (vii) Public-service advocates; (viii) Public quarantine veterinarians; (ix) Expert research personnel; (x) Industrial technical personnel; (c) Other persons assigned to supplementary service pursuant to this Act; 4. Preliminary military service: Persons liable for military service, but not in active duty service, reserve service, supplementary service, or wartime labor service; 5. Wartime labor service: Any of the following persons: (a) Persons determined to be incapable of performing active duty service or supplementary service as a result of a draft physical examination or a physical examination, but to be capable of engaging in military support affairs through a call-up for wartime labor; (b) Other persons assigned to the wartime labor service pursuant to this Act. 6 Military Service Act Article 88(1) : Any person who has received a notice of enlistment for active duty service or a notice of call (including a notice of enlistment through recruitment) and fails to enlist in the military or to comply with the call, even after the expiration of the following report period from the date of enlistment or call without justifiable grounds, shall be punished by imprisonment with labor for not more than three years: Provided, That where a person who has received a notice of check-up to provide a call for wartime labor under Article 53 (2) is absent from the check-up at the designated date and time without justifiable grounds, he shall be punished by imprisonment with labor for not more than six months or by a fine not exceeding five million won, or by misdemeanor imprisonment: <Amended by Act No. 11849, Jun. 4, 2013; Act No. 12560, May 9, 2014; Act No. 14183, May 29, 2016> 7 Minsang Kim, ‘“Conscientious objection justified” Supreme Court changes position after 14 years, Joongang Ilbo, 1 November 2018, https://news.joins.com/article/23085450 (in Korean).

8 ‘Minister of Justice puts out the fire: “Pardon of conscientious objectors undecided”’, Joongang Ilbo, 6 November 2018, (in Korean): https://news.joins.com/article/23099068?cloc=rss%7Cnews%7Cpolitics (in Korean).

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Korea has the same force as domestic law according to Article 6, Clause 1, of the Constitution and can serve directly as a norm for adjudication.”9 3. Problems of the Government Draft’s Bill Following the 28 June Constitutional Court ruling, the Ministry of National Defense (MND) formed a working group to draft a bill for alternative service. The working group was composed of staff from the MND, Military Manpower Administration (MMA) (which sits under the MND) and the Ministry of Justice (MoJ). In addition, a consultative committee of civilian experts was formed composed of academics, civil society organization representatives and a representative from the National Human Rights Commission of Korea (NHRCK). The work of this consultative committee was coordinated by a representative from the MoJ and a representative from the MMA. A total of seven bills for the establishment of alternative service have been submitted by lawmakers to date, including four bills submitted by Democracy and Peace Party, Bareun Mirae Party and Liberty Korea Party lawmakers following the 28 June Constitutional Court ruling which were far more punitive in nature than previous bills in particular in terms of the nature of work (i.e. mine removal) and length (i.e. 2 times the length of military service or longer) (see Table 2).

A public consultation hearing was held jointly by the MND, MoJ and MMA on 4 October in which possible options for alternative service were presented. In particular, it focused on three aspects: 1) length of service, 2) form of service (whether or not those performing alternative service would be housed on site or be able to commute), and 3) field of service (see Table 3.) Press reports and communication with advisory committee members indicate that the bill when proposed to the National Assembly will have the following elements that fall of short of international human rights standards and law and are likely to be punitive and discriminatory: 1.

2.

3.

4.

Length of alternative service set at twice that of military service with on-site shared accommodation; Service limited to work within correctional facilities; Evaluation committee for assessment of applications to be established under the Ministry of National Defense.

Applications for conscientious objection will not be accepted during military service.

4. Suggested Recommendations -

South Korea should introduce forms of alternative service for conscientious objectors that are of a noncombatant or civilian character and not of a punitive nature, and compatible with the reasons for objection as recommended by the UN human rights bodies.10 Alternative service should be of a comparable length to military service and any additional length must be based on reasonable and objective criteria.11 The proposal by the Government to set the length at twice that of military service would make this the longest alternative service in the world.1213 At its longest,

Minkyung Kim, ‘Supreme Court decision sparks debate over legal power of international human rights agreements’, Hankyoreh, 4 November 2018, http://english.hani.co.kr/arti/english_edition/e_national/868716.html (in Korean).

10 See, for example, Human Rights Committee, Min-Kyu Jeong et al. v. Republic of Korea (2011), para. 7.3; Jung Min-kyu and 99 others v. the Republic of Korea, Communications No. 1642-1741/2007, para. 7.3; UN Commission on Human Rights Resolutions 1989/59, 1993/84, 1995/83, 1998/77, 2002/45, and 2004/35; UN Human Rights Council Resolution 24/17, 23 September 2013, UN Doc. A/HRC/24/L.23.

11 UN Human Rights Council, Conscientious objection to military service - Analytical report of the Office of the United Nations High Commissioner for Human Rights, 201, para. 64, http://www.undocs.org/A/HRC/35/4.

12 Equal to the length of Armenia’s alternative service which is 36 months in length, though set at 1.5 times the length of military service.

13 Until recently, the European Committee of Social Rights of the Council of Europe has ruled that alternative service should not exceed in length 1.5 times the length of military service, otherwise there is a violation of Article 1, paragraph 2 of the European Social Charter (ESC) concerning the effective protection of the right of the worker to earn his living in an occupation freely entered upon. See for example Council of Europe, European Committee of Social Rights, European Social Charter (Revised): Conclusions 2008 (vol. I), Estonia – Article I, p. 231. More recently, the Committee has adopted a more flexible position on relatively short periods of military service, but one that is stricter if the length of military service is long: “The Committee wishes now to further develop its case law, the question remains one of proportionality and 9

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alternative service should not exceed 1.5 times the length of military service consistent with recommendations from the Human Rights Committee.14 The decision regarding the recognition of the right of conscientious objection should be taken by an administrative civilian authority entirely separate from the military authorities and its composition should guarantee maximum independence and impartiality.1516 South Korea should introduce various forms of alternative service for conscientious objectors which are compatible with the reasons for conscientious objection as recommended by the Commission on Human Rights.17 Recognizing that a conscientious objection can arise at any time including before, during and after military service, if there is no complete exemption, the authorities should make alternative service accessible to all those with a genuine objection at any time including during military service.18

5. Contact Details Tom Rainey-Smith, Campaigns Team, Amnesty International Korea Email: tomraineysmith@amnesty.or.kr Phone: +82-10-6379-2273 Yong-Suk Lee, Conscientious Objection Team, World Without War Email: figtree1980@gmail.com Phone: +82-10-2878-0851

reasonableness but the approach need to be more flexible and holistic. Where the length of military service is short the Committee will not necessarily insist on alternative service being not more than 1.5 times the length of military service. Nevertheless, the longer the period of military service is the stricter the Committee will be in evaluating the reasonableness of any additional length of the alternative service.” See, 2016 Governmental Committee Report Concerning Conclusions of the European Social Charter (revised), para. 39, https://rm.coe.int/reportconcerning-conclusions-2016-of-the-european-social-charter-revi/1680782a73.

14 See for example Concluding Observations of the UN Human Rights Committee to the Russian Federation, 2003, CCPR/CO/79/RUS, para 17; UN Human Rights Committee, Concluding Observations: Estonia, 15 April 2003, CCPR/CO/77/EST, para 15; Concluding observations of the Human Rights Committee, GREECE, 2005, CCPR/CO/83/GRC, para 15; UN Human Rights Committee, Concluding observations on the fifth periodic report of Austria, 3 December 2015, CCPR/C/AUT/CO/5, paras 33-34.

15 See Council of Europe, Parliamentary Assembly, Resolution 337 (1967), Right of conscientious objection, paras. b2, b3, b4 και b5.

16 The then UN Special Rapporteur on religious intolerance (now UN Special Rapporteur on freedom of religion or belief), for many years had set the relevant standards (Commission on Human Rights resolution 1986/20): “The decision concerning their status should be made, when possible, by an impartial tribunal set up for that purpose or by a regular civilian court, with the application of all the legal safeguards provided for in international human rights instruments. There should always be a right to appeal to an independent, civilian judicial body. The decisionmaking body should be entirely separate from the military authorities and the conscientious objector should be granted a hearing, and be entitled to legal representation and to call relevant witnesses.” Report submitted by Mr. Angelo Vidal d Almeida Ribeiro, Special Rapporteur appointed in accordance with Commission on Human Rights resolution 1986/20 of 10 March 1986 (E/CN.4/1992/52), 18 December 1991, para.

185. [Available through http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/Annual.aspx. The same standards continue to be cited till today by the UN Special Rapporteur on freedom of religion or belief. International Standards on freedom of religion or belief, I3k, http://www.ohchr.org/EN/Issues/FreedomReligion/Pages/IstandardsI3k.aspx.

17 Commission on Human Rights resolution 1989/59, p. 2.

18 See Concluding observations of the Human Rights Committee, Russian Federation (2009), UN Doc. CCPR/C/RUS/CO/6, para. 23.

Table 2: Comparison of Bills on Alternative Service for Conscientious Objectors Submitted by Lawmakers Congressperson (Year bill submitted)

Jeon Hae-cheol (2016)

Park Ju-min (2017)

Minjoo

Limits for Application

Before service During service After service

Before service During service After service

Military Service Act revision ü

Political Party

Legal System Duty to Notify Option of Alternative Service

Minjoo

Democracy & Peace

Kim Jung-ro (2018)

Bareun Mirae

Lee Jong-myeong (2018)

Kim Hak-yong (2018)

Before service only

Before service During service After service

Before service only

Before service only

Before service only

Military Service Act revision

Military Service Act revision

Military Service Act revision

Military Service Act revision

Military Service Act revision

Separate revisions (Act on Alternative Service Transfer & Service)

ü

ü

ü

û

û

û

§ Social services such as health care and social welfare services § Public services such as fire fighting, disaster, and relief ※Work with a high level of mental, physical difficulty

§ Services for the promotion of peace such as mine clearing, etc. § Exhumation of remains of those killed in battle § Work at war veterans’ hospitals § Social services such as providing assistance to civil authorities, social welfare, health care, etc. § Disaster and relief services with a high level of mental, physical difficulty

§ Services for the prevention of war and for the promotion of peace and reunification such as mine clearing § Work at war veterans’ hospitals and other business for men of national merit and discharged war veterans § Services for the public good such as disaster and relief services

Minjoo

Field of Service/Organization

§ Social welfare services such as protection, treatment, care, training, assisted living, counseling, etc. of children, elderly, disabled, women § Public services such as fire fighting, disaster, and relief

§ Social welfare services such as protection, treatment, care, training, assisted living, counseling, etc. of children, elderly, disabled, women § Public services such as fire fighting, disaster, and relief

Accommodation

On-site shared accommodation in principle (exceptional permission for commuting)

On-site shared accommodation in principle (exceptional permission for commuting)

[compared to air force service]

1.5 X

1.5 X

Reserve Alternative Service Operational in Wartime?

Responsible Authority (Oversight of Evaluation of Applications)

Same length as reserve service Wartime labour service mobilization Military Manpower Administration

Lee Cheol-hee (2017)

§ Social services such as health care and social welfare services § Public services such as fire fighting, disaster, and relief ※Work with a high level of mental, physical difficulty

Lee Yong-ju (2018)

§ Social welfare services such as protection, treatment, care, training, assisted living, etc. of children, elderly, disabled, women § Public services such as fire fighting, disaster, and relief

Liberty Korea

Liberty Korea

On-site shared accommodation in principle (exceptional permission for commuting)

On-site shared accommodation or commute

On-site shared accommodation

On-site shared accommodation in principle (exceptional permission for commuting)

2X (Recently stated that his

2X

2X

2X

3 years and 8 months (>2 X)19

Same length as reserve service Wartime labour service mobilization

Length not separately referenced Wartime labour service mobilization

Same length as reserve service Wartime labour service mobilization

Length not separately referenced Wartime labour service mobilization

Length not separately referenced Wartime labour service mobilization

Office of the Prime Minister

Office of the Prime Minister

Military Manpower Administration

Ministry of National Defense

Military Manpower Administration

Length of Service

On-site shared accommodation

position would now be 1.5 X)

No reference No reference Military Manpower Administration

Current lengths of military service: Air Force: 21 months; Navy: 23 months; Airforce 24 months. Note that President Moon is currently pushing for defense reform which aims to reduce service times accordingly by 2020: Army: 18 months; Navy: 20 months; Airforce: 22 months.

19

Table 3: Expected Form of Government Bill on Alternative Service Ministry of National Defense’s “Government Bill” (*Expected mid-Nov. 2018) Proposal A Proposal B Limits for Application Duty to Notify Option of Alternative Service Legal System

-

-

-

-

ü

-

§ Prison services (porter, food preparation, supplies distribution, medical assistant work, distribution of reading materials, etc.) and fire services (fire fighting, traffic control and accident scene support, training and education, etc.)

On-site shared accommodation in principle (exceptional permission for commuting)

-

Field of Service/Organization

§ Prison services only (porter, food preparation, supplies distribution, medical assistant work, distribution of reading materials, etc.)

Accommodation

On-site shared accommodation

Length of Service

[compared to air force service] Reserve Alternative Service Operational in Wartime?

Responsible Authority (Oversight of Evaluation of Applications)

Current Position Before service After service (*not during service)

§ Prison services only (porter, food preparation, supplies distribution, medical assistant work, distribution of reading materials, etc.)

On-site shared accommodation

1.5X

2X

2X

Office of the Prime Minister or Ministry of Justice

Ministry of National Defense

Ministry of National Defense