Jong-nam Kim et al. v. The Republic of Korea

The authors of the communication are 388 persons,³ all nationals of the Republic of Korea. They claim to be victims of a violation by the State party of their rights under article 18, paragraph 1, of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for the State party on 10 April 1990. The authors are represented by counsels André Carbonnier and Hana Lee.

3. The list of authors is annexed to the present Views. ↩

All 388 authors are Jehovah’s Witnesses who have been sentenced to 18 months of imprisonment each for refusing to perform compulsory military service due to their religious beliefs.⁴ Sixteen authors appealed their first-instance sentences to the Supreme Court of Korea, which refused to recognize their rights as conscientious objectors. The authors note that Supreme Court of Korea, on 15 July 2004, and the Constitutional Court of Korea, on 26 August 2004, decided that conscientious objectors must serve in the army or face prison terms. In a ruling, the Constitutional Court rejected a constitutional challenge to article 88 of the Military Service Act on the grounds of incompatibility with the protection of freedom of conscience, as proclaimed under the Korean Constitution. The Court stated, inter alia, that: “the freedom of conscience, as expressed in Article 19 of the Constitution, does not grant an individual the right to refuse military service. Freedom of conscience is merely a right to make a request to the State to consider and protect, if possible, an individual's conscience, and therefore is not a right that allows for the refusal of one's military service duties for reasons of conscience, nor does it allow one to demand an alternative service arrangement to replace the performance of a legal duty. […].”

4. All the authors declare that they had received their draft notices to perform military service between September 2004 and May 2007. All the authors were sentenced, between February 2006 and February 2008, to 18 months’ imprisonment. ↩

The authors claim that since the highest courts of Korea had already rendered a final decision on the issue, any further appeal would be ineffective.

The authors state that since the decisions of the Supreme and Constitutional courts, some 600 to 700 conscientious objectors have been sentenced and imprisoned for refusing to bear arms. Others are convicted and imprisoned each month.

The authors claim that the absence of an alternative to compulsory military service in the State party amounts to a violation of their rights under article 18, paragraph 1, of the Covenant. They refer to the Committee’s Views in communications Nos. 1321 and 1322/2004, Yoon and Choi v. the Republic of Korea, adopted on 3 November 2006, in which the Committee concluded that the State party had breached article 18, paragraph 1, of the Covenant, on the basis of identical facts as those in the present communication, and the State party was requested to provide the authors with an effective remedy.

By note verbale of 14 November 2008, and with reference to the Committee’s Views of 3 November 2006 in Yoon and Choi v. the Republic of Korea, the State party requests the Committee to reconsider its decision, taking into account the security environment in the Korean peninsula. Concretely, regarding the Committee’s observation in its previous Views that “an increasing number of States parties to the Covenant, which have retained compulsory military service, have introduced alternatives to compulsory military service,” the State party points out that the legal systems of Germany and Taiwan, countries which have introduced alternative service, are quite different from its own. The State party also notes that Taiwan has not been at war, while the Korean War was fought across the Korean peninsula and lasted for three years and one month from 1950 to 1953, when a cease-fire agreement was finally signed. The war left one million dead from the south, and more than 10 million Koreans were separated from their families. The State party submits that the cease-fire agreement is still effective in the State party, which distinguishes it from other countries. The agreement has not yet been superseded by a new legal framework, such as a declaration to end the war or a peace agreement to ensure non-aggression and peace, despite continued efforts to this end. In the State party’s view, the security environment is not comparable to that of either Germany or Taiwan, as it shares a border with the Democratic People’s Republic of Korea (DPRK) which spans 155 miles.

As to the Committee’s contention that “the Republic of Korea has failed to show what special disadvantage would be involved for it if the rights of the authors under article 18 were fully respected,” the State party submits that conscientious objection or the introduction of an alternative service arrangement is closely linked to national security, which is the very prerequisite for national survival and the liberty of the people. It fears that introduction of an alternative to military service would jeopardize national security.

According to the State party, there have always been those who are intent on evading conscription due to the relatively challenging conditions often required in the military, or concerned over the effect such an interruption will have on one’s academic or professional career. Thus, it is even more necessary to maintain the current policy of no-exception to military service so as to ensure sufficient ground forces. The State party adds that if it were to accept claims of exemption from military service, in the absence of public consensus on the matter, it would be impeded from securing sufficient military manpower required for national security by weakening the public’s trust in the fairness of the system, leading the public to question its necessity and legitimacy. Thus, for the State party, the recognition of conscientious objection and the introduction of alternative service arrangements should be preceded by a series of measures: stable and sufficient provisions of military manpower; equality between people of different religions as well as those with no religion; in-depth studies on clear and specific criteria for recognition of an exemption and consensus on the issue among the general public.

As to the Committee’s argument that “respect on the part of the State for conscientious beliefs and manifestations thereof is itself an important factor in ensuring cohesive and stable pluralism in society,” the State party is of the view that as a unique security environment prevails, fair and faithful implementation of mandatory military service is a determining factor to secure social cohesion. Respect for conscientious beliefs and its manifestations cannot be enforced through the implementation of a system alone. It is sustainable only if general agreement on the issue is achieved. Public opinion polls conducted in July 2005 and in September 2006 showed that 72.3 per cent and 60.5 per cent,, respectively, expressed opposition to the recognition of alternative service for conscientious objectors.

The State party submits that it is very difficult to set up an alternative service in practice, guaranteeing equality and fairness between those performing military and those performing alternative service. The majority of the soldiers in the State party perform their duties under difficult conditions and some are involved in life-threatening situations. They face the risk of jeopardizing their lives while performing their duty of defending the country. Indeed, six people died and 19 were wounded in the clash between South and North naval vessels in the Yellow Sea in June 2002. Thus, it is almost impossible to ensure equality of burden with those fulfilling military service and those performing an alternative one.

The State party regrets that upon its accession to the Covenant on 10 April 1990, the Committee had not provided a clear position on whether conscientious objection fell within the ambit of article 18. It was only on 30 July 1993, in its general comment No. 22 that the Committee announced its position that failure to recognize conscientious objection constituted a breach of this provision. The State party points out that both its Supreme and Constitutional Courts had ruled that the failure to introduce a system at the present time cannot be interpreted as a breach of the Covenant, and that the requisite article of the Military Service Act which punishes conscientious objectors is in conformity with the Constitution.

The State party adds that from April 2006 to April 2007, the Ministry of Defence had set up a “Joint Committee between the public and private sectors to research the alternative service system.” The Committee conducted research on the possibility of revising the Military Service Act and introducing an alternative service system, including prospects for the future demand and supply of military personnel, the statements of those who refused military service, the opinions of experts in this field and relevant cases of foreign countries.⁵

5. The State party has not provided any indication of the results of this research. ↩

In addition, in September 2007, the authorities announced a plan to introduce a system assigning social services to those who refuse conscription due to their religious beliefs, once there is a “public consensus” on the issue. The State party indicated that once such consensus is reached, “as a result of the research on public opinion and positions of the relevant Ministries and institutions,” it would consider introducing an alternative service system. In conclusion, it requests the Committee to reconsider its previous view on this matter, in the light of the arguments presented.

In their comments dated 23 February 2009, the authors note that their claims are identical to those in communications Nos. 1321 and 1322/2004 submitted by Yoon Yeo-bum and Choi Myung-jin,⁶ in which the Committee found a violation of article 18 of the Covenant. The authors deplore the State party’s failure to implement its national action plan for conscientious objection.

6. Communications Nos. 1321 and 1322/2004, Yoon and Choi v. the Republic of Korea, Views adopted by the Committee on 3 November 2006. ↩

With respect to the State party’s argument on the necessity to preserve national security, the authors note that countries like the United Kingdom of Great Britain and Northern Ireland, the Netherlands, Norway, Denmark or Russia had all adopted laws recognizing the rights of conscientious objectors during war time. There is no evidence that those laws weakened the States’ national security. Another example is the State of Israel, which, since 1948, has been involved in military confrontations that have resulted in a much higher number of casualties than those the Republic of Korea has experienced over the last 50 years. The State of Israel, nevertheless, exempts conscientious objectors from military service. The authors conclude that recognition of conscientious objection does not compromise a country’s national security.

The authors further contend that the current number of conscientious objectors in the State party amounts to two per cent of those enlisted for military service each year; this number is not high enough to have any type of influence on the ability of the State party to defend itself. They further note that conscientious objectors do not serve the army, but spend time in prison, which, in their view, suggests that the State party’s refusal to recognize conscientious objectors and to allow alternative service has not contributed to improving or maintaining its national security. As for the State party’s fear that recognizing the right to conscientious objection would lead to an increase in requests from Buddhists, Catholics, and others from the Christian faith, the authors contend that there is no record in any country which has introduced alternative service for conscientious objectors of a substantial increase in requests for exemption from the ranks of Buddhists, Catholics and others from the Christian faith.

With regard to State party’s argument of the alleged necessity to preserve social cohesion, the authors reply by quoting a United States of America Supreme Court ruling of 1943, in which it was considered that fundamental freedoms do not depend on the outcome of elections.⁷ The authors argue that public opinion cannot excuse a breach of the Covenant, or of the State party’s own Constitution. The State party’s Constitution protects fundamental rights, including the right to freedoms of conscience and religion. Thus, domestic law, which includes the Covenant, protects such rights and therefore protects the authors’ right to conscientious objection. The authors, further contend that reliance on public polls can be misleading; on 18 September 2007, when the Ministry of Defence announced that it had decided to introduce alternative civilian service for conscientious objectors, it made reference to a poll showing that 50.2 per cent of the population consented to the introduction of an alternative to military service. The authors quote two other polls showing a similar trend.

7. Supreme Court of the United States, West Virginia State Board of Education et al. v. Barnette et al, 319 U.S. 624, 639 (1943). ↩

As for the State party’s argument that when it acceded to the Covenant, the Committee had not yet issued its general comment No. 22 broadening the scope of article 18 to the right to conscientious objection, the authors point out that subsequent to the State party’s accession to the Covenant, it became a member of the then Human Rights Commission, which adopted resolutions on the rights of conscientious objectors in 1993, 1995, 1998, 2000, 2002 and 2004. The State party did not object to any of them.

On 16 January 2012, the authors inform the Committee that in two judgements of 30 August 2011, the Constitutional Court stated the following: “[…] no article in the Covenant, including article 18, explicitly mentions a right to conscientious objection as one of the basic human rights […]. The interpretation of the Committee […] is merely a recommendation to its States parties, but is not legally binding […]. Therefore, the Covenant does not automatically mean the recognition of the right to conscientious objection, nor does it exercise legally binding effect upon conscientious objection.”⁸

8. Constitutional Court of Korea, case 2008 Hun Ga 22, 2009 Hun Ga 24, 2010 Hun Ga 16, 2009 Hun Ga 7, 2010 Hun Ga 37, 2008 Hun Ba 103, 2009 Hun Ba 3 of 30 August 2011, para. 3.3.2.1.; Constitutional Court of Korea, case 2007 Hun Ga 12, 2009 Hun Ba 103 (consolidated) of 30 August 2011, para. 3.4.2.1. ↩

Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

The Committee notes, as required by article 5, paragraph 2 (a) of the Optional Protocol, that the same matter is not being examined under any other international procedure of investigation or settlement.

The Committee notes that, apart from the 16 authors mentioned in para. 2.1 above, the majority of the authors have not appealed the judgements of the respective District Courts on the basis that any appeal would have been ineffective. The Committee notes the authors’ contention that both the Supreme Court of Korea, on 15 July 2004, and the Constitutional Court, on 26 August 2004, as well as most recently on 30 August 2011, decided that conscientious objectors must serve in the army or face prison terms; and since the highest jurisdictions had made a final decision on the issue, any further appeal would be futile. Taking into account the authors’ arguments, and in absence of any objection by the State party in this connection, the Committee considers that it is not precluded by the provisions of article 5, paragraph 2 (b), of the Optional Protocol, from examining the present communication.

The Committee considers that the authors have sufficiently substantiated their claims, for purposes of admissibility; it declares the communication admissible under article 18, paragraph 1, of the Covenant, and proceeds to its consideration of the merits.

The Human Rights Committee has considered the present communication in the light of all the information submitted by the parties, in accordance with article 5, paragraph 1, of the Optional Protocol.

The Committee notes the authors' claim that their rights under article 18, paragraph 1, of the Covenant have been violated, due to the absence in the State party of an alternative to compulsory military service and, as a result, they were prosecuted and imprisoned. The Committee notes that in the present case, the State party reiterates the arguments advanced in response to similar earlier communications⁹ before the Committee, notably on the issues of national security, equality between military and alternative service and lack of a national consensus on the matter. The Committee considers that it has already examined these arguments in its earlier Views,¹⁰ and finds no reason to depart from its earlier position.

9. Communications Nos. 1321 and 1322/2004, Yoon and Choi v. the Republic of Korea, Views adopted by the Committee on 3 November 2006; communications Nos. 1593-1603/2007, Jung et al. v. the Republic of Korea, Views adopted by the Committee on 23 March 2010. ↩
10. Ibid. ↩

The Committee recalls its general comment No. 22 (1993), in which it considers that the fundamental character of the freedoms enshrined in article 18, paragraph 1, of the Covenant is reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4, paragraph 2, of the Covenant. Although the Covenant does not explicitly refer to a right of conscientious objection, the Committee reaffirms its view that 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.¹¹ The Committee further notes that freedom of thought, conscience and religion embraces the right not to declare, as well as the right to declare, one’s conscientiously held beliefs. Compulsory military service without possibility of alternative civilian service implies that a person may be put in a position in which he or she is deprived of the right to choose whether or not to declare his or her conscientiously held beliefs by being under a legal obligation, either to break the law or to act against those beliefs within a context in which it may be necessary to deprive another human being of life.

11. See for example, communications Nos. 1642-1741/2007, Jeong et al. v. the Republic of Korea, Views adopted by the Committee on 24 March 2011. ↩

The Committee therefore reiterates that the right to conscientious objection to military service is inherent to the right to freedom of thought, conscience and religion. It entitles any individual to exemption from compulsory military service if the latter cannot be reconciled with the individual's religion or beliefs. The right must not be impaired by coercion. A State party 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. The alternative service must not be of a punitive nature, but must rather be a real service to the community and compatible with respect for human rights.¹²

12. See for example, communications Nos. 1853 and 1854/2008, Atasoy and Sarkut v. Turkey, Views adopted by the Committee on 29 March 2012, para. 10.4. ↩

In the present case, the Committee considers that the authors' refusal to be drafted for compulsory military service derives from their religious beliefs which, it is uncontested, were genuinely held, and that the authors’ subsequent conviction and sentence amounted to an infringement of their freedom of conscience, in breach of article 18, paragraph 1, of the Covenant. Repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibit the use of arms, is incompatible with article 18, paragraph 1, of the Covenant.¹³

13. See for example, communications Nos. 1642-1741/2007, Jeong et al. v. the Republic of Korea, Views adopted on 24 March 2011. ↩

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, concludes that the facts before it reveal, in respect of each author, violations by the Republic of Korea of article 18, paragraph 1, of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including expunging their criminal records and providing them with adequate compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future, which includes the adoption of legislative measures guaranteeing the right to conscientious objection.

Bearing in mind that by becoming a party to the Optional Protocol the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee's present Views. The State party is also requested to publish the Committee's Views. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]

I concur with the decision of the Human Rights Committee in the case of Kim et al. v. the Republic of Korea (communication No. 1786/2008) and with all the arguments set forth in its Views, which have consolidated the fundamental case law in respect of conscientious objection to compulsory military service, which was laid down following the decisions on communications 1642-1741/2007 (Jeong et al. v. the Republic of Korea) and which were adopted on the historic date of 24 March 2011 and re-asserted in the decision in the case of Atasoy and Sarkut v. Turkey (communications 1853 and 1854/2008) adopted on 29 March 2012.

The discussion within the Committee prior to the adoption of the decision in the case at hand of Kim et al. v. the Republic of Korea has led me to set out a number of thoughts on the matter.

As I indicated in my concurring opinion in the case of Atasoy and Sarkut v. Turkey, decisions have hitherto been limited to conscientious objection to performing compulsory military service, which the Committee has declared to be in violation of the International Covenant on Civil and Political Rights. The views adopted by the Committee since the Jeong et al. v. the Republic of Korea case, in direct application of article 18, paragraph 1, of the Covenant (and in a departure from the Committee’s previous case law, which subjected domestic legislation to the test of article 18, paragraph 3, to decide on a possible violation) have taken into account the evolution of the right to freedom of conscience in contemporary international law.

Since the Jeong et al. v. the Republic of Korea and the Atasoy and Sarkut v. Turkey cases, and as has been reasserted in this case of Kim et al. v. the Republic of Korea, the Committee has developed a case law that reflects the considerable evolution, to date, of the right to conscientious objection to compulsory military service under the International Covenant on Civil and Political Rights. The Human Rights Committee holds that freedom of conscience and religion (article 18 of the Covenant) includes the right to conscientious objection to compulsory military service.

Conscientious objection to compulsory military service is inherent in the right to freedom of thought, conscience and religion; accordingly, compulsory military service is not only a violation of the right to practice a belief or religion, it is also a violation of the right to hold a belief or religion.

It follows that, in accordance with the contemporary interpretation of the Covenant, there can no longer be any restriction or possible justification to enable a State to compel a person to perform military service. The Committee has provided ample explanation for its new approach, which is legally robust, and reflects the evolution of the right to freedom of thought, conscience and religion.

In contrast, the minority position within the Committee is unable to explain how its stance provides better guarantees for human rights, and better fulfils the object and purpose of the Covenant. Were we to continue to apply the former interpretation – which enjoys the support of the minority – a State would be able to find reasons for compelling a person, against his or her will, to use weapons; to become involved in armed conflict; to run the risk of dying and, what is even worse, of killing, without such act(s) constituting a violation of the Covenant.

Which of these two interpretations better fulfils the object and purpose of the Covenant? Which interpretation better contributes to the effective application of the International Covenant on Civil and Political Rights? Which of them better guarantees the rights of individuals? The answer is indisputable, and the Committee should ask these questions of itself each time it decides on a case.

The Committee should not revert to its previous case law; were it to do so, it would be a serious retrograde step that would be unacceptable from the angle of better international protection for human rights.

The Committee has set out its position on the content of article 18 of the Covenant; States should take due note of this and honour the commitments they entered into when they ratified the International Covenant on Civil and Political Rights.

States parties should adopt legislation to amend their domestic law in such a way that compulsory military service becomes a thing of the past and an example of a form of oppression that should never have existed. Until this comes to pass, when examining the reports of States parties and in its case law on individual cases, the Committee should maintain its progressive approach towards conscientious objection to compulsory military service.