Republic of Korea: Communication sent on 24 May 2005

POLITICAL RIGHTS, INCLUDING THE QUESTION OF RELIGIOUS INTOLERANCE

Addendum
Summary of cases transmitted to Governments and replies received

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Republic of Korea
Communication sent on 24 May 2005

292. The Special Rapporteur had received reports that 1030 Jehovah’s witnesses were jailed in the Republic of Korea because they refused to do military service for reasons related to their religious belief.

293. The Special Rapporteur was informed that the Republic of Korea had not established a mechanism to allow members of certain religious minorities not to serve in the military, if their belief forbids them to do so, e.g. it was claimed that 1030 Jehovah’s witnesses were imprisoned for this reason. Furthermore, there were reports that these persons face discrimination once they leave the prison with regard to employment and other social services

Response from the Government dated 29 July 2005

294.The Government provided the following information in response to the Special Rapporteur’s communication:

295. Regarding the accuracy of the information, the Government informed that there are 1,114 Jehovah's Witnesses who are jailed as of July 12, 2005, which roughly corresponds to the information provided. There is no official record of Jehovah’s Witnesses facing discrimination with regard to employment or other social services after they leave prison. Since conscientious objection to military service is not permitted by law, there is a realistic possibility tha t such individuals may experience disadvantages. However, this may be attributed purely to the free will of employers and does not stem from systemic discrimination.

296. Regarding judicial procedures, the Government informed that on July 15, 2004, the Supreme Court ruled that conscientious objectors to military service were guilty of violating the Military Service Law. On August 26, 2004, the Constitutional Court confirmed that Article 88 of the Military Service Law, intended to penalize the evasion of conscription, is constitutional. However, the Court indicated that there is a need for the legislature to develop a national solution in order to protect the conscience of objectors to military service. In November 2004 a revision bill which aims at providing Alternative Service for conscientious objectors to military service was proposed and this is under discussion at the National Assembly.

297. The Government further indicated that in light of the specific circumstances in the Republic of Korea, conscientious objection to military service needs to be restricted as it may be harmful to national security.

298. Unlike the freedom to form or determine inner conscience, the freedom toobject to fulfilling the duty of military service for reasons of religion or conscience may be restricted by Clause 3 of Article 18 of the International Covenant on Civil and Political Rights for public causes in that it manifests or realizes one's conscience through passive non performance.

299. Given the specific security circumstances in the face of a hostile North Korea, the Republic of Korea, the world's sole divided nation, has adopted the Universal Conscription System, which recognizes all citizens' obligation to perform military service. Thus, the principle of equality in military service duty and responsibility carries much greater significance in the Republic of Korea than in any other country.

300. Considering the strong social demand for and expectation of equality in the performance of military service, allowing exceptions to military duty may undermine social unity and greatly harm national capabilities by giving rise in society to the problem of inequality in the obligation to fulfil military service.

301. Furthermore, the approval of conscientious objection to military service while military manpower is still the mainstay of national defence may lead to the misuse of conscientious objection as a legal devise to evade military service. This would be greatly detrimental to national security by destroying the oasis of the national military service system, the Universal Conscription System. This is of particular concern in light of the social trend of attempting to evade military service duty by using any and every means possible.

302. Various considerations in the Republic of Korea mean that the time is not right for the adoption of the Alternative Service System even though it is under discussion at the National Assembly.

303. By its very nature a nation's military service system has a direct bearing on national security. It is a matter of legislative discretion ve sted in the lawmakers for the creation of a national army with the maximum capabilities for national defence, taking into account a nation's geopolitical stance, internal and external security conditions, economic and social state, and national sentiment, as well as various other factors.

304. Considering the Republic of Korea's security situation, the demand for equality in military service duties, and various concomitant tumbling blocks to the adoption of the Alternative Service System, it does not seem that the ROK has reached the necessary stage of improved conditions in security and military service nor has national consensus been reached on this.

Observations

305. The Special Rapporteur is grateful for the Government’s detailed response. She has also taken note of the Government’s position on conscientious objectors through the third periodic State Party Report, which it submitted to the Human Rights Committee in February 2005 (CCPR/C/KOR/2005/3). While she notes that military service may sometimes be necessary for purposes of national security she would like to draw the Government’s attention to paragraph 11 of General Comment 22 of the Human Rights Committee which provides that although the International Covenant on Civil and Political Rights “does not explic itly refer to a right to conscientious objection, the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.”

Source: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/121/25/PDF/G0612125.pdf?…