Conscientious objectors' unending legal battle

Conscience objectors urge the government to introduce an alternative military service during a protest in Gwanghwamun Square in central Seoul, May 15, weeks before the Constitutional Court ruled in favor of them. / Korea Times file

Top court delays ruling, mulls human rights record

By Kang Hyun-kyung

The Constitutional Court is poised to conclude another milestone conscientious objection case, weeks after a historic June 28 ruling where it overturned South Korea's long-standing stance to alternative military service.

The top court will wrap up a class-action complaint filed in 2011 by 433 conscience objectors who claimed that they were human rights victims but that they were unable to get adequate compensation from the government because of the absence of legislation.

Those who filed the complaint urged the top court to take necessary measures, so the government could compensate them and expunge their criminal records.

The court is likely to conclude the case before September when a major reshuffle is expected to take place. Court President Lee Jin-sung and four other Constitutional Court judges are to be replaced in September as their tenure ends.

"At the moment, it's the longest pending case in the Constitutional Court," said Oh Du-jin, a lawyer who represents the 433 conscientious objectors.

He cautiously revealed optimism, saying hope is in the air.

"It remains to be seen how the court will conclude on the case. Having seen how the court has responded to prior cases regarding conscience objection to military service, however, I'm optimistic about the results. I wouldn't rule out the possibility the court may rule in favor of my clients."

The 433 people, who filed the class-action petition, were convicted in different time periods after refusing to follow the enlistment notice to serve in the military and were then imprisoned.

They claim that they refused military service because of their religious beliefs but were willing to take alternative service outside the military. Due to the absence of alternative service back then, their voices were not heard and they were given jail terms. They call their imprisonment "arbitrary detention" by the Korean government.

The pending case has drawn the keen attention from the public following the top court's historic ruling on conscientious objection to military on June 28.

Oh, who has represented conscientious objectors since 2008 when he served as a legal trainee after passing the state bar exam, said the Constitutional Court's June 28 ruling is meaningful because it ended decades of brutal persecution of conscientious objectors.

"Since the 1950s, some 20,000 conscientious objectors have been persecuted as their freedom of religion, thoughts and conscience was not recognized," he said. "Some families see grandfather, father and son imprisoned in different time periods for their refusal to serve in the military for their religious belief."

Many conscientious objectors are Jehovah's Witnesses.

The 433 people, who were convicted and then imprisoned before the June 28 ruling, individually took the case to the United Nations Human Rights Committee in 2011. There are some 50 others who followed this course.

They asked the U.N. body to review if the government's punitive measures were appropriate.

After reviewing the case for years, the committee ruled in 2014 in favor of the South Korean petitioners, urging the South Korean government to expunge their criminal records and give them adequate compensation. The committee identified the Koreans as conscience objectors and punishing them for their refusal to comply with military service, despite their willingness to take alternative service outside the military, was a violation of their basic human rights.

However, the committee's decision was not binding.

Along with the European Commission for Democracy through Law's milestone ruling against Armenia in 2011 regarding its treatment of conscientious objectors, the U.N. committee's decision has had a significant impact on South Korean judges.

Inside the court, there are several groups where judges have regular meetings to discuss issues related to legal issues, including conscientious objection.

The International Human Rights Law Study Group is one of them. Judges there were greatly affected by the European commission's decision on the Armenian case and rulings in favor of conscientious objectors followed. In 2015, 85 conscientious objectors received not guilty verdicts in district and higher courts, although the rulings were overturned at the Supreme Court as South Korea didn't allow alternative military service back then.

The Constitutional Court's June 28 ruling came against this backdrop.

Oh took the top court's delaying tactic regarding the 433 conscientious objectors-led class-action complaint as a positive signal for his clients.

"Technically speaking, it's not a hard case," he said. "But for some reason, the court kept trying to buy time and made it the longest pending case. If they're going to throw it away and rule against the 433 people, I think the court members would have concluded the case much earlier."

Oh stated the Constitutional Court appears to view the ruling on the case as an opportunity to lift its international profile as a frontier in human rights.

The lawyer linked the pending class-action complaint to the top court's ambition to set up a regional judiciary institution for human rights_ Asia's equivalent of the European Commission for Democracy through Law.

"Asia is the only continent that has no regional human rights commission. Europe has it, the Americas have it and even in Africa, there's a regional human rights commission, although each of them is named differently," said Oh.

The Constitutional Court reportedly has been pushing for the establishment of the regional judiciary institution in Korea since Lee Kang-kook took the helm between 2007 and 2013.

In September 2014, then Court President Park Han-cheol officially proposed the idea during his key note speech to a World Conference on Constitutional Justice meeting in Seoul.

He said the time was ripe for constitutional courts in Asia to initiate a debate for the establishment of a human rights commission in Asia.

"We, Asians, have watched and experienced traumatic wars and their brutal consequences on human rights and the pain is still ongoing," Park said. "(If the regional judiciary institution is set up), it will help prevent the repetition of such traumatic human rights violations."

South Korea needs credentials in its human rights record to make their voice heard.

Oh said the court's recent ruling on conscientious objection to military service would help build Korea's credentials. "There's no doubt if the court rules in favor of conscientious objectors' plea for necessary legislative steps, this will also help the court have a greater say in its push for the human rights commission agenda," he said.

A rocky road is ahead of the Constitutional Court's push for the regional human rights commission.

Most notably, Japan, one of the two key players in Asia along with China, and a war criminal responsible for numerous wartime human rights violations, is unlikely to be enthusiastic about the establishment of the human rights commission.