SOUTH KOREA 2019
Among other important court proceedings, in a historic step for women’s rights, the Constitutional Court ruled that criminalization of abortion was unconstitutional. An alternative to military service was enacted after the Constitutional Court’s decision in 2018. At the end of the year, the Constitutional Court was again discussing the death penalty. Article 92-6 of the Military Criminal Act, which the UN and some member states had recommended be repealed, was still in effect. Under this law, LGBTI people in the military were subjected to discrimination and stigmatization and faced violence and harassment due to the criminalization of consensual sex between adult men.
There were strong youth voices urging action on a new human rights agenda including climate change. The Youth for Climate Action group led a climate strike movement calling for the government to take immediate action to address the looming climate crisis. Approximately 5,500 people participated in a climate strike in the centre of Seoul on 21 September that included a “Die-in”. Some 150,000 people gathered at the Seoul Queer Culture Festival in June, the largest turnout since it began in 2000. The annual Incheon Queer Culture Festival, which had been marred by attacks by counter-protesters in 2018, was held without incident in August. The 3rd Busan Queer Culture Festival was cancelled due to opposition from the Haeundae-gu District government office.
Rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI)
Article 92-6 of the Military Criminal Act criminalized sex between men, institutionalized discrimination and reinforced systematic prejudices in the military. Criminalization contributed to an environment where soldiers who did not conform to existing gender norms – including gay men, bisexual men, transgender women and non-binary people – found it extremely difficult to fulfil compulsory military service free from bullying, harassment, discrimination and violence at the hands of their commanding officers and peers. At year’s end, the Constitutional Court was reviewing a new collective case challenging Article 92-6 – the fourth review on the issue since 2002.
Although the government stated that the guidelines on changing gender recognition were not legally binding, they included requirements that could violate transgender people’s rights to privacy, health and to have a family. The guidelines stated that applicants must have received sex reassignment surgery, have no underage children and be unmarried in order for gender correction to be recognized.
If an individual was unable to obtain a legal change of gender, they could not have their gender changed on the national identification card, which is essential to daily life in South Korea. Identification cards were needed to obtain other official documents, access essential services, search for employment and purchase accommodation. The discrepancy between the gender on the card and the appearance of the person it belonged to could result in discrimination or a reluctance to seek needed government services.
Equality Act, a nationwide network of 128 human rights and civil society organizations, and the UN High Commissioner for Human Rights called for comprehensive anti-discrimination legislation that included a prohibition on discrimination based on sexual orientation and gender identity. However, the government did not take any action.
In April, the Constitutional Court ordered the government to decriminalize abortion and reform the country’s highly restrictive abortion laws by the end of 2020. Previously both the woman or girl and the doctor performing the abortion could be penalized with a fine or imprisonment.
The case filed against the Japanese government in December 2016 by 11 survivors of Japan’s military sexual slavery system before and during World War II was taken up in March by a South Korean district court despite Japanese authorities’ claims that the issue had been settled in previous treaties and agreements. In November, Amnesty International submitted an amicus curiae brief to the court arguing that the survivors and victims deserved reparation and remedy for this gross human rights violation. The brief further stated that claims of sovereign immunity did not remove Japan’s need to fully acknowledge and accept responsibility for the military sexual slavery system. In December, the Constitutional Court declined to honour an appeal submitted by survivors, asking the court to review the constitutionality of a 2015 settlement on the issue between the Japanese and South Korean governments.
In September, the Supreme Court upheld a lower court ruling that found a high-profile politician guilty of sexual violence. This ruling helped further encourage the #Metoo movement, which Seo Ji-hyun, a prosecutor, kick-started in 2018 by exposing the sexual harassment she was subjected to at work. Women’s rights activists and lawyers welcomed the ruling, which prioritized the testimony of the victim and urged judges to take into account social context and issues of gender inequality.
Migrant women in particular faced discrimination in society and in the home. Media reports covering a domestic violence case involving a Vietnamese-born woman and the death of a North Korean woman possibly due to starvation, highlighted the risks migrant women faced and re-ignited debates on discrimination.
In December, the legislature enacted amendments to the Military Service Act as mandated by the Constitutional Court in its 2018 ruling which required the government to introduce an alternative service of a civilian nature by the end of 2019. However, the enacted legislation still violated the right to freedom of thought, conscience and religion or belief by imposing unreasonable and excessive burdens on conscientious objectors. It instituted a disproportionate length of service – 36 months, compared to 21 or 18 months for military service – and an administration of the service which was not completely separate from military authorities.
Despite a related ruling by the Supreme Court in 2018 that conscientious objection was a “justifiable ground” for failing to report for service, lower courts continued to convict conscientious objectors. Three were imprisoned. Three other objectors had appeals pending at the Supreme Court at year’s end, when the government announced that it would pardon 1,879 conscientious objectors.
In December, Amnesty International submitted an amicus curiae brief in a new case the Constitutional Court took up to consider for the third time if the death penalty is a violation of the rights to life and human dignity as recognized in the Constitution. In October lawmaker Lee Sang-min of the Minjoo Party submitted the eighth bill to the National Assembly to abolish the death penalty. Seven bills had been introduced previously over a 20-year period, but none were brought to a vote before the full Assembly, even though the last execution was carried out in 1997. The government made no moves toward abolition and in 2018 abstained in the vote on the seventh UN General Assembly resolution regarding a moratorium on the use of the death penalty.
Freedom of assembly
The amendment of the Assembly and Demonstration Act as required by a 2018 Constitutional Court ruling remained pending. Based on the ruling, the prohibition of outdoor assemblies or demonstrations within a 100-metre radius of the National Assembly building, the official residence of the Prime Minister, and “all levels of courts” was unconstitutional.