In January 2016, I was invited to submit an opinion before the Republic of Korea’s Constitutional Court with regard to a case concerning the recognition of conscientious objectors’ right not to serve in the army. I did it expressing my support for that recognition. While I organized my thoughts and put them in a written form, significant events of my life reappeared in my mind. Here I would like to share the memory of those events as well as the text I submitted before the Republic of Korea’s Constitutional Court.
When I was a child, because of the splendid reproductions of paintings depicting scenes of war, a volume in my father’s library always caught my attention: Marshall Montgomery’s History of Warfare. At that time, war, so I imagined it, was a sort of theatrical scene where some exceptional men displayed a heroism without paragon, acted crafty and cunningly, and yet behaved chivalrously, while fastened their ties of friendship. Time passed by and my view of the war change for the worse. Like many of my country fellows, I became a distant witness and spectator of the exertion of abuse and unconcern, the commission of up to then unthinkable acts of violence, and the incarnation of cruelty in men wearing military uniforms.
Naturally, many of the images I had seen in Marshall Montgomery’s book had slipped away. Without any notice, during a visit to a museum, I encountered one of the paintings whose copy had been chosen to illustrate Montgomery’s book: a massive canvas of H 2,36 m and W 3,44 m: Le cimetière de Saint-Privat (18 août 1870). With a meticulous detail and a terryfing intensity, the painter, Alphonse de Neuville, depicted a scene from the Franco-Prussian War. As if I were also taking part of the same bloody endeavour but simultaneously detached from it, I could see the charge of the Prussians knocking down a remaining door and climbing over a wall, a last and vain attempt to resist the advance of the enemy, a lethal shot from a gun, a man falling dead, dead and wounded men stranded on the floor, a group of wounded men standing against a wall, full of disappointment and distrust, waiting to be held as prisoners, an additional group of Prussians advancing cautiously through the opposing side, clouds of powder, clouds of smoke, a sunset in flames, a victory to be sealed and definite defeat.
Few days after this contemplative shock, in another city I happened to find the statute of a man once described as a Middle Temple lawyer, posing as a half-naked fakir, who was able to “parley on equal terms with the representative of the king-emperor”, while he was still “organizing and conducting a defiant campaign of civil disobedience”. I found admirable that the British people have the nerve to honor a man who stroke a decisive blow against the British Empire for such a public deference certainly conveys the sense that the principles that guided that man were superior to the dominion they imposed over foreign peoples.
A few steps to the right from that statue, there is a cherry tree planted a year before the consacration of this monument to Ghandi. The tree is a memorial devoted to the victims of Hiroshima and Nagasaki. A little bit farther away, in the northern corner of the same Tavistock Square, there is a massive grey-green slate, 400 million years old, in which there is a plaque honoring conscientious objectors. In that plaque one can read that it was dedicated the 15th of May of 1994, the International Conscientious Objectors Day. The plaque has three other inscriptions: “TO COMMEMORATE MEN & WOMEN CONSCIENTIOUS OBJECTORS TO MILITARY SERVICE ALL OVER THE WORLD & IN EVERY AGE”, around the left, top and right edges; “TO ALL THOSE WHO HAVE ESTABLISHED AND ARE MAINTAINING THE RIGHT TO REFUSE TO KILL” and “Their foresight and courage give us hope”, at the center.
Republic of Korea
Dear Honorable Justices,
I would like you, please, to consider the following arguments in favor of recognizing conscientious objectors’ right not to serve in the military and, accordingly, to rule in their favor in the cases you have to solve in the incoming days. The first step of my reasoning is to acknowledge the constitutional antinomy you have to solve, i.e. the apparent contradiction between the mandates of Article 19 [Freedom of Conscience] and Article 39 [Duty of Military Service]. Afterwards, I will point to two similar procedures to solve the aforementioned antinomy. When discussing the second procedure, I will refer to the political context in which the Honorable Justices have to solve the cases concerning conscientious objectors and the way in which such context may inform the decision you will make.
At first glance, there is no way of circumventing the apparent contradiction between the mandates of Article 19 [Freedom of Conscience] and Article 39 [Duty of Military Service]. On one hand, if the Justices decided against the conscientious objectors, they would infringe upon the constitutional obligation of guaranteeing freedom of conscience to all citizens. On the other hand, recognizing conscientious objectors’ right not to serve in the military would go against the clear mandate of Article 39, which establishes that, “All citizens shall have the duty of national defense (…).” Thus, solving the cases involving conscientious objectors would entail infringing upon one or another constitutional mandate.
If interpreters of the Constitution clinged to the idea that it is a unified and coherent whole, lacking contradictions of any sort, then antinomies would overwhelm their consciousness. In this case, reason would not supply any help. Interpreters who put themselves in a situation that takes the form of a dilemma would have to exert violence to their own scrupules for either horn of such a dilemma would lead to an unjust result.
However, when interpreters of the law admit that, as any other human creation, the Constitution is an imperfect body of rules, things look entirely different. This sense of imperfection would inform their willingness to elaborate an interpretation of apparently contradictory constitutional mandates and construct a solution that may be accepted as just by the parties involved in a constitutional controversy. Although it is apparently paradoxical, the acceptance of the imperfection of the Constitution is what paves the way to the perfection of its application. It is not necessary to make explicit this acceptance. What is necessary is simply to admit that literalist interpretations of the Constitution would not do the work of providing citizens with a just solution of their controversies.
One way of solving a constitutional antinomy is to pay heed to the advice formulated by Chaïm Perelman more than seventy years ago. According to this legal philosopher, anyone aware of the strenuous consequences that would follow from applying a legal rule must recall the imperfect character of all normative systems. Hence, in order to prevent the occurrence of an injustice, an interpreter of the law “should draw fresh inspiration from contact with the more immediate and more spontaneous values.” The values to which Perelman refers to are no others than those that correct the interpretation that would allow extreme consequences to take place. He mentions explicitly the value of charity.1 We can certainly add those of magnanimity, benevolence, kindness and compassion.2
This advice, I think, speaks by itself. Placing a young man behind bars because he refused to serve in the military on account of his religious convictions would be tantamount to ask him to bear the brunt of a solution that imperfectly conforms to reason and that manifestly deviates from what mercy would counsel in his case. On one hand, sentencing him to do time ignores his right to freedom of conscience. On the other, such a sentence imposes on him a penalty that offends the sense of benevolence and compassion with which justice must be imparted. Conversely, recognizing his right not to serve in the military would solve the constitutional antinomy in the most humane way.
Critics of this solution may point to its incomplete character and, particularly, to the fact that the constitutional article that mandates that all citizens shall fulfill the duty of national defense has not been given its due weight. Giving weight to both Article 19 and Article 39 and balancing their content would be the most conventional technique to solve the constitutional antinomy. The task of the interpreter of the Constitution would then be to examine the factual and normative possibilities of realization and concretion of those mandates in the case or cases under consideration.3
The constitutional duty of national defense should be seen in the specific context of the lasting conflict between the Democratic People’s Republic of Korea and the Republic of Korea. The aggresive military policies the former country follows have put the latter under an existential threat various times. Although such a threat is not now imminent, there have been a number of crises in which that threat was impending. Therefore, the Republic of Korea requires from its citizens a substantial contribution to its defense.
Yet, one should ask what the Republic of Korea defends and follow the implications of the answer to this question in the present discussion concerning conscientious objectors. Unlike the Democratic People’s Republic of Korea, the Republic of Korea defends its democratic and liberal character (Preamble and Articles 1,1 and 10). The Democratic People’s Republic of Korea might afford itself to mobilize the totality of its citizens to an eventual military conflict. The Republic of Korea would not be able to do so without transforming itself into the opposite of what stands for. Forcing conscientious objectors to serve in the military would defeat the purpose of the institutions set to guarantee “equal opportunities to every person and provide for the fullest development of individual capabilities in all fields, including political, economic, social and cultural life by further strengthening the basic free and democratic order conducive to private initiative and public harmony (…).”
Some members of the Goverment and perhaps some others among the Army seem to entertain serious doubts about the effect of recognizing conscientious objectors’ right not to serve in the military. They appear to be afraid that the efforts put into the defense of the country may be weakened directly, by means of the number of people who would not be enlisted, and indirectly, given the signal sent to the society that the Army would not force citizens to fulfill their duties whenever those duties enter into conflict with people’s conscience.
However, these misgivings are misplaced. First, the diminution of the men in arms caused by the recognition of conscientious objectors’ right not to serve in the military is neglible. Depending on the source consulted, the people active in the Army sum a number between 522.000 and 650.000. The number of conscientious objectors is not even a 0,5% of any of those numbers. Second, the Republic of Korea is committed to “maintain international peace” and, consequently, renounced “all aggressive wars.” Following these principles, the Republic of Korea has agreed to observe a good number of international treaties and covenants that proscribe crimes against humanity and, therefore, all members of its Armed Forces are under the obligation not to compel their subordinates to commit those crimes. Thus, the idea of not forcing anybody to act againts his conscience is not foreign to the Republic of Korea. I would even conjecture that experts in the history of the Republic might find in its ancient traditions examples of the humanitarism and brotherly love, affirmed in the Preamble, and in tune with the idea of granting conscientious objectors the right not to serve in the military.
Last, but not least, the way in which this constitutional conflict was solved in the Republic of Colombia may inform the consideration of the Justices in the Republic of Korea. The 1991 Colombian Constitution contains provisions very similar to the ones the Constitutional Court of the Republic of Korea has to apply in order to solve the cases under its exam. In 2009, well before any attempt to find a peaceful resolution to the internal armed conflict that has ravaged Colombia during the last 50 years, the Colombian Constitutional Court recognized conscientious objectors’ right not to serve in the army. The Colombian Justices arrived to this solution for they thought that the military effort against the guerrillas would not be weakened and indeed it was not. Nor did citizens who were not conscientious objectors cheat the fulfillment of their duties. By means of this decision, the Republic of Colombia invigorated its democratic and pluralist character, one that albeit its limitations, many citizens of this country seek to enhance.
Juan Gabriel Gómez Albarello
Universidad Nacional de Colombia
1 Perelman, Chaïm.  1963. The Idea of Justice and the Problem of Argument. London : Routledge & Kegan Paul, p. 49. In p. 51, Perelman expresses the same idea: “Since the attempt to eliminate the arbitrary entirely from a human scheme of justice seems to be hopeless, the mind is forced to accept the insufficient character, in the absolute, of a purely rational justice. Just as equity is called in to supplement the regulation of just action, so charity is the necessary and indispensable supplement of any system justifying the rules themselves in a human justice concerned to do harm to no one and to afford no one a valid motive for complaint.”
2 The account of how Sancho Panza solved a paradoxical case submitted to him when he served as the Governor of the Island of Barataria is a remarkable antecedent of how mercy corrects the imperfection of justice (Miguel de Cervantes Saavedra, The History of Don Quixote, Volume II, chapter LI).
3 Alexy, Robert.  2002. A Theory of Constitutional Rights. Oxford: Oxford University Press.