Arbitrary detention for conscientious objection to military service in Republic of Korea

Facts

The authors of the communication are 31 nationals of the Republic of Korea. They claim that the State Party has violated their rights under articles 9 and 18 (1) of the Covenant by failing to recognize the right to conscientious objection to military service and by imprisoning conscientious objects as punishment.

All of the authors are Jehovah’s Witnesses. The authors received their draft notices to perform military service between June 2011 and October 2013. They refused to perform military service since it would go against their religious conscience. 

As the authors refused to be drafted for military service, they were charged for violating article 88 of the Military Service Act. In court trials in 2013 and 2014, they were all convicted and sentenced to 18 months’ imprisonment for their conscientious objection to mandatory military service. Many were released on parole, many of them were detained for more than a year, including the detention period during the trial process. 

On this factual basis, the authors allege that the State Party violated article 18 (1) of the Covenant by punishing them on the basis that they refused to be enlisted in the army on the grounds of their conscience or religious belief. The authors also argue that the State Pary, which imprisoned them for exercising their rights and freedoms enshrined in the Covenant, violated article 9 of the Covenant – in amounting to arbitrary detention. 

Merits

The Committee recalled general comment No. 22 in which it considers that the fundamental character of freedoms enshrined in article 18 (1) of the Covenant is reflected in the fact that this provision cannot be derogated from, even in time of public emergency. The Committee also recalled its jurisprudence that although the Covenant does not explicitly refer to the right to conscientious objection, such a right derives from article 18, inasmuch as the obligation to be involved in the use of lethal force may seriously conflict with the freedom of conscience. 

The Committee stated that the right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if such service cannot be reconciled with that individual's religion or belief, and that this right must not be impaired by coercion. A state may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside of the military sphere and not under military command. Such an alternative service must not be of a punitive nature. In terms of the present case, the Committee was not convinced by the State party’s argument that 18 months imprisonment would not be overly punitive given its similarity to performing military service. 

On the above basis, the Committee considered that the authors’ subsequent convictions and sentences amounted to an infringement of their freedom of conscience, in breach of article 18 (1) of the Covenant. The Committee considers that deprivation of liberty as punishment for the legitimate exercise of a right protected under the Covenant, including freedom of religion and conscience, is ipso facto arbitrary in nature. Consequently, the Committee also found that article 9 (1) of the Covenant had been violated with respect to each of the authors. 

Recommendations

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated.

Accordingly, the State party is obligated to:

• expunge the authors’ criminal records and to provide adequate compensation to them.

The State party is also under an obligation to take steps to prevent similar violations from occurring in the future. This includes an obligation to ensure that any legislative measures adopted in connection with the duty to conduct military service guarantee the right to conscientious objection, as was also provided in the recent jurisprudence of the State party’s Constitutional Court and Supreme Court.

Deadline to provide follow-up information on implementation: 12 October 2020

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