□ In Korea, a proper reform of the military justice system did not take place until 2021, and it took several human rights violations in the military that became public issues such as deaths during training, ill treatments, questionable deaths, sexual violence, distortions, fabrications, reductions, and cover-ups.

□ The 2021 revision of the Military Court Act in Korea is arguably the most significant reform of the military justice system since the 1988 amendment to the same Act. The basic guiding principles of the amendment can be summarized as ⑴ structural changes to the military trial system, ⑵ civilian control, and ⑶ victim protection in military criminal proceedings. Despite these changes, various issues persist in Korea’s military justice system, which range from structural issues inherent in the military courts to individual issues.

□ A review of international human rights norms and legislations in major countries reveals clearly recognizable global trends such as 1) the retreat of commander-in-chief justice, 2) external control by civilians, 3) the exclusion civilians from military justice, and 4) civilization of military justice.

• ○Common requirements found in the international human rights norms, UN resolutions, and draft basic principles proposed with regard to military court proceedings include: peacetime military trials that do not ensure an independent, neutral, transparent, and fair trial should be abolished; the jurisdiction of military courts, if established, should be limited to purely military crimes; the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights should be fully guaranteed to the parties concerned; the right to a fair trial should be guaranteed to an even greater extent in times of a national emergency or a war, which poses a greater risk of human rights violations; in principle, military trials of civilians are prohibited either in peacetime or wartime, but may be permitted in times of national emergency only under highly exceptional circumstances, that is, when the judicial function of the country is completely suspended; and that the independence, neutrality, transparency and fairness of a military trial can be ensured through the independence in staffing and the establishment of due process.

□ Some countries such as Korea and Taiwan abolished military courts for historical reasons or after serious human rights violations, while other countries recently abolished military courts because they could not satisfy the above requirements regarding the implementation of international human rights norms.

□ Analysis of Human Rights Violations in Military Investigations and Trials

• ○Many of the human rights violations in military criminal proceedings occur during the investigation process, which show fairly even distribution across different stages of military investigation. 1) Military investigative agencies collected excessive personal information by asking questions unrelated to the facts of the crime while interrogating suspects. 2) Investigative agencies failed to provide adequate medical care during the investigation process. 3) Military investigative agencies failed to ly notify the guardians of sex crime victims, resulting in additional damage. 4) Excessive investigations violated suspects’ “secret and freedom of privacy. Granted, the 2021 revision of the Military Court Act introduced improvements in many of these aspects. However, the death of a private in the 1st Division of the Republic of Korea Marine Corps on July 19, 2023, and the insubordination that occurred during the investigation of the case, show that issues with the military investigation process persist.

• ○Although there have not been many cases of human rights violations identified with regard to military court proceedings, there have been cases where (1) a change in a service address was not processed, (2) a defendant filled out the s and took the oath at a public hearing while handcuffed and tied in a rope, and (3) a defendant was not provided with information on the appointment of a court-appointed counsel despite requesting a counsel, due to a mistake made by a military court personnel.

• ○Other than investigation and court proceedings, human rights violations in the military criminal proceedings have been also identified with suspects in detention centers, for example: (1) an interview with a pretrial detainees was conducted without specific instructions and prior notice about audio and video recording, (2) pretrial detainees were required to provide their signatures in the register in the order of admission, exposing the personal information of the detainees who filled it the register first, and (3) all detainees, including those who were subject to disciplinary actions, were required to fill out “inmate status sheet.”

• ○These cases of human rights violations, as well as criticisms of the military justice system itself, surfaced in earnest in 2005 and the years that followed, ing discussions on military justice reforms guided by the goals of enhancing the fairness and independence of the military justice system. In 2021, a female Air Force non-commissioned officer (NCO) took her own life after her internal of sexual harassment were ignored by the military, only to be subjected to secondary victimization. This incident triggered a full revision of the Military Court Act on September 24, 2021 based on previously discussed proposals. The revision, which entered into effect on July 1, 2022, introduced various improvements aligned with the independence of military courts and prosecutors, and the fairness of military trials and investigations: it abolished the convening authority and adjudicator positions, which had hindered the independence of military courts; the revision also excluded sexual violence, crimes involving deaths, and crimes committed before the acquisition of military personnel status, from the jurisdiction of military courts; and the revised Act also provided for prosecution teams reporting to the Minister of National Defense and the chief of staff of each military branch, and abolished the requirement of a unit commander’s approval for a military prosecutor’s request for arrest warrants.

□ Issues with the 2021 Revision of the Military Court Act and Suggestions for Improvement

• ○Military Courts in Peacetime

– The 2021 reform of the military criminal justice, despite its major contributions, appears to be limited in its ability to ensure the independence, neutrality, transparency, and fairness of the military criminal justice system.

– One of the drawbacks of the 2021 revision is the retention of the peacetime standing military courts.

– The peacetime standing military courts need to be abolished unless their independence, neutrality, transparency, and fairness can be guaranteed. The necessity of military courts, such as maintaining military discipline, securing military command, preserving military force, and expediting trials, can only be meaningful and obtains democratic legitimacy only when a fair trial is ensured.

– While the military justice system needs to accommodate the special nature of the military, military culture, and military expertise, such accommodation needs to be achieved through the use of expert examiners under the Criminal Procedure Act.

• ○Military Trial of Civilians

– Military trials of civilians are not permitted in principle and should be reserved for exceptional situations such as a national emergency, only when the judicial function of the country is completely suspended.

1. Peacetime Military Courts’ Jurisdiction Over Civilians

– In peacetime, when the judicial function is intact, military trials of civilians should be prohibited in principle because the very structure of military courts make it difficult to ensure their fairness and independence.

– In this regard, Article 27 (2) of the Constitution of the Republic of Korea needs to be amended. The provision stipulates, “Citizens who are not on active military service or employees of the military forces shall not be tried by a court martial within the territory of the Republic of Korea, except in case of crimes as prescribed by Act involving important classified military information, sentinels, sentry posts, the supply of harmful food and beverages, prisoners of war and military articles and facilities and in the case of the proclamation of extraordinary martial law.” In the provision, the phrase “in case of crimes as prescribed by Act involving important classified military information, sentinels, sentry posts, the supply of harmful food and beverages, prisoners of war and military articles and facilities” needs to be removed in order to prevent the provision from being used to justify a military trial in peacetime.

2. Military Trial of Civilians in an Emergency

– Military trials of civilians under martial law should not be allowed unless the judicial function of the country is completely suspended. The historical sufferings caused by past abuses of martial laws are clear evidence that fundamental human rights are highly vulnerable under martial law and national emergencies. As such, such situations require even greater protection of people’s right to a fair trial, which is an integral part of fundamental human rights.

– In this sense, Article 110 (4) of the Constitution needs to be amended. According to the current provision, “Military trials under an extraordinary martial law may not be appealed in case of crimes of soldiers and employees of the military; military espionage; and crimes as defined by Act in regard to sentinels, sentry posts, supply of harmful foods and beverages, and prisoners of war, except in the case of a death sentence.” In this article, the phrase “military trials under an extraordinary martial law” needs to be replaced by "military trials when the administrative and judicial functions of the state are suspended in time of war, armed conflict, or similar national emergency due to a combat with the enemy or extreme disruption to social order.”

• ○ Issues with Single-Instance Military Trial under Martial Law

– The proviso to Article 110 (4) of the Constitution should be deleted as a single-instance military trial violates international human rights norms by infringing on people’s right to file an appeal with a higher level court, which forms a part of the right to a fair trial, and such a single-instance trial system is not found in legislations in any other country. In fact, the proviso found its way into the Constitution after a provision to the same effect had been declared unconstitutional, which is all the more reason to strike it off.

• ○ Issues with the Criminal Jurisdiction of Military Courts and Civilian Courts

– If the continued existence of military courts is justified by the need to maintain military discipline or to establish military command, the crimes that can be tried by military courts should be also limited to purely military offenses so as to fulfill those needs.

§ (1) Measures should be taken to categorically prevent the crime of threatening or forcing an accuser, a complainant or any other person who provided investigative evidence to put pressure on them, the crimes listed in Article 5-9 of the Act on the Aggravated Punishment of Specific Crimes, or the act of subjecting a person to a disadvantageous treatment through abuse of authority or abandonment of duties. In addition, complainants and accusers should be protected from accusations of libel, insult, or interference with the exercise of rights.

§ (2) Civilian courts should have jurisdiction over war crimes and crimes against humanity stipulated in the Act on Punishment of Crimes Under Jurisdiction of the International Criminal Court, because fairness and independence are key in these crimes.

§ In this regard, civilian courts should have jurisdiction over the crime of plunder under Chapter XIII in Part II, Particular Provisions of the Military Criminal Act, and the destruction of constitutional order under Article 2 of the Act on Special Cases Concerning the Preion for Public Prosecution Against Crimes Disrupting Constitutional Order, to ensure an independent and fair trial.

§ (3) The subparagraphs of Article 2 (2) of the Military Court Act excludes "Chapter XV, Rape and Sexual Harassment" of the Military Criminal Act, which makes it unclear whether the jurisdiction of the civilian court or the military court applies to cases where the perpetrator is charged with rape under the Military Criminal Act rather than sexual violence under the Criminal Act or other special Acts. Therefore, crimes under "Chapter XV, Rape and Sexual Harassment " of the Military Penal Code should be included in the list of crimes over which civilian courts have jurisdiction.

§ (4) In addition, the list of crimes over which civilian courts have jurisdiction need to include human trafficking and other crimes to which the principle of universality applies, and serious crimes such as child abuse.

• ○Issues with the (Internal) Investigative Power over Evidence and the Power to Initiate Investigations

– For crimes over which civilian courts have jurisdiction, it would be desirable to require military investigative agencies to refer cases to civilian investigative agencies as soon as they obtain evidence for the investigation. The proposal for "Partial Amendment to the Military Court Act" proposed by National Assembly Member Kim Jongmin and others on September 26, 2023 sheds a highly positive light, because the amendment stipulates that a civilian court holds jurisdiction over cases involving deaths, and cases where the indictment is filed with the relevant court (Article 2 (4) 1 of the amended Act). However, it does not seem appropriate to leave autopsies to military prosecutors or military judicial police officers.

• ○Independence and Neutrality of Military Judges, Military Prosecutors, and Military Judicial Police Officers

1. Independence of Military Judges

– Under the current law, it is difficult to expect independence, neutrality, or fairness from military judges, for several reasons. (1) The appointment of military judges should be reviewed by the Military Judges Committee. However, the Committee’s decisions are not binding. (2) The Military Court Operations Committee has the right to deliberate and adopt resolutions on matters relating to the appointment and reappointment of military judges (Article 4-2 (1)), and the Committee , is composed of the chief of staff of each military branch, the Ministry of National Defense, and the heads of military courts. (3) The statutory reasons for disqualification or recusal of a member of the Military Court Operations Committee do not include the member being in the same chain of command as the relevant party, which means the chain of command may affect the appointment and reappointment of military judges. (4) Tenure and retirement age have been introduced to protect the status of military judges. However, Article 106 (1) of the Constitution states, “No judge shall be removed from office except by impeachment or a sentence of imprisonment without prison labor or heavier punishment, nor shall he/she be suspended from office, have his/her salary reduced or suffer any other unfavorable treatment except by disciplinary action. (5) Military judges are subject to the performance uations of their superiors in their chain of command. (6) The relevant law does not include a specific provision regarding removal from office.

– Therefore, in order to ensure the independence, neutrality, and fairness of military judges in the long term, a reasonable course of action would be to appoint military judges from civilian lawyers. In the short term, above all else, the law needs to clarify that a member of the Military Court Operations Committee may be avoided or excluded if the member is in the same chain of command as a party. In addition, the status of military judges needs to be protected at a level corresponding to civilian judges, so that status of a military judge is not affected by the performance uation by a superior in the chain of command.

2. Independence of Military Prosecutors

– A review of issues with the 2021 revision of the Military Court Act and legislations in major countries suggests the need to grant independence to military prosecutors from the Ministry of National Defense, while ensuring that the Minister of National Defense cannot control or supervise the chief of staff of each military service or the head of the Ministry of National Defense Prosecutor’s Office in specific cases, which should also apply to the chiefs of staff. If a power outside the military prosecutor’s office exercises control or supervision over specific cases, such control and supervision are bound to work as external influence affecting military prosecutors even when it is not directed against the prosecutors in charge of those specific cases, as long as it is directed at the head of the relevant military prosecutor’s office. The extent to which specific cases are investigated in an independent and neutral manner, and the extent to which the military prosecutor exercises his/her indictment power based on the investigations, will serve as a measure of public confidence in military criminal justice. In addition, a reasonable procedure for processing objections from military prosecutors needs to be envisioned, rather than relying on the existing procedure applicable to civilian prosecutors (which suffers from many issues).

• ○ The Power of the Minister of National Defense to Decide on Indictment, and the Independence of prosecutorial Prosecutors’ authority from the Secretary of Defense's Indictment Power

– The Minister of National Defense has the power to decide on whether to proceed with indictment in specific cases. The power itself allows the minister to directly control and supervise military prosecutors. In addition, in order to decide on indictment, the minister needs to have military prosecutors submit reports on specific cases through the chain of command. Therefore, the power of the Minister of National Defense to decide on indictment needs to be abolished, as it is likely to infringe on the independent exercise of military prosecutors’ indictment power.

– Furthermore, an indictment decision of the Minister of National Defense is unilateral, which may result in a serious infringement on the exclusive indictment power held by prosecutors.

– An even more serious issue is the possible politicization of military trials.

3. Favoritism for Retired Judges and Prosecutors

– In order to prevent favoritism in military trials for counsels who are retired judges and prosecutors , the code of conduct and ethics for military judges and prosecutors need to be revised in accordance with the lawyers’ code of ethics. In particular, for military judges, measures to prevent conflicts of interest need to be put in place corresponding to Article 10-3 of the Detailed Rules on Distribution of Duties and Cases among Judges, etc.

4. Independence of the Military Judicial Police

– Military judicial police officers do not have the right of appeal recognized for civilian judicial police officers.

– In specific cases, military judicial police officers report to the heads of their units, which may compromise the independence and fairness of their investigations. 

– Therefore, it is necessary to establish the Military Judicial Police Corps as outside the Ministry of National Defense to ensure the independence and neutrality of military judicial police officers' investigations by separating them from the chain of command.

• ○Abolishment of Convening Authority and Adjudicator Positions in Wartime and Peacetime Military Courts

– Wartime Convening Authority

• ■A wartime convening authority coordinates the affairs of military prosecutors and exercise control and supervision over them. If the convening authority is also granted the power to appoint or designate military judges and adjudicators, mitigate sentences, and exercise control over the execution of sentences, it is likely to undermine the principle of independent and fair trial. Therefore, the convening authority position needs to be abolished.

– Wartime Adjudicator

• ■Adjudicators are bound to be subservient to the chain of command from the very moment of their appointment or designation. Considering these structural limitations to the independence and neutrality of trials, the wartime adjudicator position should be rightfully abolished.

□ Issues with Military Investigations and Possible Improvements

• ○This section reviews whether the military investigation and trial procedures under the 2021 revision of the Military Court Act are aligned with the nature of judicial power as protector of human rights, as well as possible improvements and solutions required in terms of enhancing the fairness and independence of military trials. First, at least on the institutional level, the revision protects suspects and victims involved in military investigations on a level corresponding to the civilian sector. However, it should be noted that the effectiveness of a system is determined to a greater extent by how it works in place, rather than the perfunctory existence of such system.

• ○ Despite numerous improvements adopted for the military court proceedings so far, many criticisms persist regarding the independence of military prosecutors and military police. One of the most important aspects of the military investigative process is how to keep investigations independent from de facto involvement by commanding officers. A reasonable way to ensure the independence would be to adopt a system within the current military investigation system comparable to the National Police Agency's National Office of Investigation. The United Kingdom appoint civilians as members of the military prosecution tasked with military investigations and prosecution, and granted its complete independence from the Department of Defence. The UK example suggests a possible reference point for reforms in Korea.

• ○The revised Military Court Act stipulates a broader court-appointed counsel system for victims and the bereaved family to protect their human rights, compared with the civilian criminal proceedings. However, in order to enhance public confidence in the system and boost its effectiveness, military advocates need to be excluded from the scope of personnel to be appointed as court-appointed counsels. We can also consider restorative justice as a means to protect the human rights of service personnel during peacetime military investigations.

□ Issues with Military Court Proceedings and Possible Improvements

Taking the view of the military courts as special courts performing judicial functions, we can consider the following improvements for the current military court proceedings.

• ○First, it is necessary to improve on the guarantees of independence for military judges in charge of military trials. Given the existence of separate military courts under the Ministry of National Defense, Korea needs practical mechanisms to minimize the influence of the Minister of National Defense on military judges in charge of military trials. Granted, the Military Court Act provides for institutional mechanisms to guarantee the independence of military judges, who are also members of the military. However, those mechanisms need further improvements. (1) The term of office and retirement age of military judges are shorter than those of civilian court judges, in consideration of their military ranks rather than the need to ensure their independence. These provisions do not constitute a sufficient guarantee for the independence of military trials. In order to protect the status of military judges further, it would be desirable to raise the retirement age of military judges on par with that of civilian court judges, rather than relying on their ranks as military service members. (2) The excessive influence of the Minister of National Defense over the organization of the Military Court Operations Committee should be addressed. Under the current system, all members of the Military Court Operations Committee are appointed among members under the influence of the Minister. Given the committee’s power to approve appointment and reappointment of military judges, such influence is not consistent with the guarantee of independence for military judges.

• ○Second, the current court-appointed counsel system for military trials seems to constitute criminal proceedings aligned with defendants’ human rights. However, the percentage of criminal trials where court-appointed counsels are appointed is lower than trials at civilian courts. This discrepancy suggests the need to improve the effectiveness of the court-appointed counsel system in military trials. Also needed are efforts to increase the number of civilian attorneys and experienced lawyers serving as court-appointed counsels in military courts so that defendants in military trials have full access to court-appointed counsels.

• ○ Third, Korea may consider the introduction of conditional detention for suspects and defendants in military trials. Conditional detention to ensure presumption of innocence and protect personal freedom is necessary not only for the protection of suspects’ right to defend themselves during investigations, but also for the exercise of defendants’ right to defense during the court proceedings. Given the purpose of the conditional detention, there is no reason to adopt the system only for the investigation phase, and not the trial phase. If conditional detention needs to be adopted ffor criminal trials, it follows that the same system is needed for military court proceedings.

• ○Fourth, while the 2021 revision of the Military Court Act largely adopted the systems stipulated in the Criminal Procedure Act for the overall court proceedings, the revision did not address the discrepancy between the admissibility of suspect interrogation reports prepared by military prosecutors and those prepared by military police officers as evidence. The Act should be revised to admit interrogation reports prepared by military prosecutors, as long as the defendant or defense counsel acknowledge their content.

• ○Fifth, the Act does not provide for expert examiners for military trials. Unlike expert witness whose testimonies are used as evidence, the expert deions and opinions of expert examiners do not constitute evidence. However, their deions and opinions should be used to support the court proceedings by ensuring sufficient review and ensuring faster resolution of conflicts. The 2021 revision to the Military Court Act was geared toward enhanced independence of the military justice system, which included the abolishment of the convening authority and adjudicator positions. However, the revision does not deny the special nature and unique expertise of the military, for which the expert examiner system can be a reasonable alternative for military trials.

• ○Sixth, in order to secure the independence and fairness of military trials and build public confidence in the system, it might be worthwhile to consider a system akin to the participatory trial system for civilian criminal cases. However, service members’ participation in military trials would be difficult to implement, considering the reality of military court proceedings. It would be practical to expect that the number of cases eligible for military participatory trials would be extremely small. Comparing such reality with the significant changes to be brought on by the adoption of the system, it would be difficult to adopt a participatory trial system in the military trial context.