Eu-min Jung & Ors v Republic of Korea, UN Doc CCPR/C/98/D/1593-1603/2007 (30 April 2010)
The UN Human Rights Committee has held that the Republic of Korea violated art 18, paragraph 1 of the International Covenant on Civil and Political Rights in convicting and sentencing to imprisonment, 11 individuals who refused to be drafted for compulsory military service as a direct expression of their religious beliefs.
The Committee held that the conviction and sentence amounted to an infringement of the complainants’ freedom of conscience and a restriction on their ability to manifest their religion or belief.
Korea’s Military Power Administration sent each of the applicants a notice of draft for military service requiring enlistment in the army. Each of the applicants refused to be drafted on account of their religious belief and conscience.
Subsequently, each of the applicants were arrested, charged, convicted and sentenced to one and a half years of imprisonment by the District Court under art 88 (section 1) of the Korean Military Service Act. On appeal, the Supreme Court upheld all of the convictions and sentences.
Appeals to the Supreme Court
Article 88 (section 1) of the Military Service Act provides for the offence of ‘Evasion of Enlistment’ which is triggered in circumstances where a person has received a notice of enlistment and fails to enlist in the army following the expiration of the report period, without justifiable reason. The offence is punishable by up to 3 years imprisonment.
It was argued by the applicants that the absence in Korea of an alternative to compulsory military service, under pain of criminal prosecution and imprisonment, breached their rights under art 18, paragraph 1 of the Covenant. The same argument was subsequently put to the Committee.
The Supreme Court relied on similar reasoning in each appeal to uphold the convictions.
Although unrelated to the proceedings in this case, a constitutional challenge to art 88 of the Military Service Act was instituted in 2004 on the grounds of incompatibility with the protection of freedom of conscience under the Korean Constitution.
This challenge was rejected by the Constitutional Court on the basis that the Constitutional protection does not grant an individual right to refuse military service, and conscientious objection to the performance of military service can only be recognised as a valid right if the Constitution expressly provides for that right.
Korea raised the following issues in response to the applicants’ argument:
- National security – the need to build military means for the purposes of defense and ensure sufficient ground forces, and concern that alternative military service would jeopardise national security.
- Equality between military and alternative service – 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 without;
- in-depth studies on clear and specific criteria for recognition of an exemption; and
- consensus on the issue among the general public.
- Lack of a national consensus on the matter – introduction of an alternative arrangement at a premature stage within a relatively short period of time, without public consensus, would intensify social tensions rather than contribute to social cohesion.
The Committee commented that Korea’s response to the applicants’ submission reiterated arguments previously considered by the Committee (in Yeo-Bum Yoon and Myung-Jin Choi v. the Republic of Korea, Communication Nos 1321/2004 and 1322/2004) and as such, applied its earlier jurisprudence.
In particular, the Committee endorsed the following comments in Yeo-Bum Yoon and Myung-Jin Choi:
While the right to manifest one’s religion or belief does not as such imply the right to refuse all obligations imposed by law, it provides certain protection, consistent with article 18, paragraph 3, against being forced to act against genuinely-held religious belief.
The Committee also recalls its general view expressed in General Comment 22 that to compel a person to use lethal force, although such use would seriously conflict with the requirements of his conscience or religious beliefs, falls within the ambit of article 18.
As to the issue of social cohesion and equitability, the Committee considers 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. It likewise observes that it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service.
The Committee held that:
the [applicants’] refusal to be drafted for compulsory military service was a direct expression of their religious beliefs which, it is uncontested, were genuinely held and that the [applicants’] subsequent conviction and sentence amounted to an infringement of their freedom of conscience and a restriction on their ability to manifest their religion or belief. The Committee finds that the State party has not demonstrated that in the present cases the restrictions in question were necessary, within the meaning of article 18, paragraph 3 and that it has violated article 18, paragraph 1, of the Covenant.
The Committee held that Korea was under an obligation to provide the applicants’ with an ‘effective remedy’, including compensation and to avoid similar violations of the Covenant in the future, pursuant to art 2, paragraph 3(a) of the Covenant.
The Committee reinforced the notion that by becoming a party to the Optional Protocol to the Covenant, Korea had undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, as well as to provide an effective and enforceable remedy where a violation has been established.
Relevance to the Victorian Charter
This decision will be particularly relevant to the interpretation of s14 of the Victorian Charter, being the right to freedom of thought, conscience, religion and belief.
Whilst compulsory military service has been abolished in Australia since 1972, the approach taken by the Republic of Korea on the basis of defending national security is a prevalent theme in current debate surrounding the introduction of counter terrorism legislation in Australia.
The consideration of the ‘necessity’ of the restrictions on human rights in this case will also assist in interpreting the scope of permissible limitations under s7(2) of the Charter.
The decision is at http://tb.ohchr.org/default.aspx.
Kate Moore is a lawyer with Freehills and a volunteer with the Human Rights Law Resource Centre