Conscientious objectors win first-ever appeals acquittal

An appeals court handed down the first-ever acquittals to three conscientious objectors on Tuesday, creating a milestone in their search for alternative civilian service in place of the country’s military duty.

The Gwangju District Court acquitted three Jehovah’s Witnesses on Tuesday in their appeals trials. One of the three, identified by his surname Kim, was prosecuted in violation of the Military Service Act after he received a notice of enlistment and refused to serve. In May of last year, the Gwangju District Court acquitted him in an initial trial, but the prosecution filed an appeal. On Tuesday, the court ruled in Kim’s favor, upholding the initial acquittal.

In two separate but related cases, the court reversed the initial convictions against two other men. The Mokpo Branch of the Gwangju District Court convicted them in June of last year and May of this year and handed down 18-month prison terms to each. They appealed the convictions and the court acquitted them in the appellate trials. The Ministry of National Defense said it will appeal all three cases at the Supreme Court.

Since the Seoul Southern District Court made the landmark ruling to acquit a conscientious objector in May 2004, many conscientious objectors have been acquitted in their initial trials but were eventually convicted by appellate courts.

“Conscientious objection is accepted worldwide and a consensus is forming in Korean society about establishing an alternative civil service in place of conscription,” the Gwangju District Court said in its decision to acquit them. “They are not demanding special treatment such as exemption from the military duty. They said they want to serve alternative duties. The country must not force them to serve the military without offering alternative civil service.”

In fact, in 2006, 2010 and 2011, the UN Human Rights Committee announced that the Korean government’s arrest and imprisonment of thousands of conscientious objectors is in violation of Article 18 of the International Convention on Civil and Political Rights, to which Korea has been a party for 26 years.

The court also criticized the judiciary for having handed down compromising rulings to conscientious objectors. Since 2000, a customary practice was established in the judicial system that conscientious objectors were eventually convicted and an 18-month prison term was handed down based on a 2004 Supreme Court precedent.

According to Article 88 of the Military Service Act, any person who has received a notice of enlistment for active duty and fails to enlist without justifiable grounds is to be punished by imprisonment for up to three years. Until now, conscientious objectors generally only received 18-month prison terms because those who serve prison terms for longer than 18 months are exempted from a military duty under the Military Service Act.

According to the Ministry of National Defense, 5,723 conscientious objectors were recorded since 2006. Most were Jehovah’s Witnesses.

The first-ever conviction of a conscientious objector by the Supreme Court came in July 2004. The Constitutional Court also ruled in August 2004 and August 2011 that punishing conscientious objectors under the Military Service Act is constitutional. Despite precedents, local courts continuously acquit conscientious objectors in initial trials.

At the National Assembly’s audit of the Supreme Court, Rep. Oh Shin-hwan of the Saenuri Party questioned the judiciary about the controversy. “Although the Constitutional Court ruled that it is constitutional to punish conscientious objectors, there were nine acquittals by district courts this year and now we have three acquittals by an appeals court. What will you do when there will be more acquittals?”

Vice Minister Lim Jong-hun of National Court Administration responded conservatively. “The Supreme Court has consistently ruled against conscientious objectors. I don’t see an immediate change in the practice.”

As of now, 28 constitutional petitions by conscientious objectors are pending at the Constitutional Court, and Chief Justice of the court, Park Han-chul, said earlier this month that he will speedily process them before his tenure ends next January.

BY SER MYO-JA, KIM HO [ser.myoja@joongang.co.kr]