Facts of the case

The authors of this communication refused to be drafted for military service on account of their religious beliefs and conscience. They were arrested and charged under article 88 (Section 1) of the Military Service Act.

Findings related to FoRB

FoRB violation – Conscience (i.e. having or adopting a religion of one’s choice); Discrimination

Holding/Decision

(1) The Committee recalled its ‘previous jurisprudence on the assessment of a claim of conscientious objection to military service as a protected form of manifestation of religious belief under article 18, paragraph 1.3. It observed that 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 224 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. The Committee notes, in the instant case, that the authors’ refusal to be drafted for compulsory service was a direct expression of their religious beliefs, which it is uncontested were genuinely held. The authors’ conviction and sentence, accordingly, amount to a restriction on their ability to manifest their religion or belief. Such restriction must be justified by the permissible limits described in paragraph 3 of article 18, that is, any restriction must be prescribed by law and be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. However, such restriction must not impair the very essence of the right in question.’ 

 

(2) The Committee noted that ‘under the laws of the State party there is no procedure for recognition of conscientious objections against military service. The State party argued that this restriction is necessary for public safety, in order to maintain its national defensive capacities and to preserve social cohesion. The Committee took note of the State party’s argument on the particular context of its national security, as well as of its intention to act on the national action plan for conscientious objection devised by the National Human Rights Commission. The Committee also note, in relation to relevant State practice, that an increasing number of those States parties to the Covenant which have retained compulsory military service have introduced alternatives to compulsory military service, and considers that the State party has failed to show what special disadvantage would be involved for it if the rights of the authors’ under Article 18 would be fully respected…’

 

(3) The Committee, therefore, considered that the State party has not demonstrated that in the present case the restriction in question is necessary, within the meaning of article 18, paragraph 3, of the Covenant.

 

(4) The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, concluded that the facts as found by the Committee 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 compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future.