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South Korea: Cold War relic law criminalises criticism

South Korean peace activists and other groups near a military check point in Paju, 24 May 2015, after crossing the Demilitarised Zone separating North and South Korea
South Korean peace activists and other groups near a military check point in Paju, 24 May 2015, after crossing the Demilitarised Zone separating North and South Korea

REUTERS/Seo Myung-Gon/Yonhap

This statement was originally published on hrw.org on 28 May 2015.

The South Korean government should immediately stop using its outdated National Security Law to suppress freedom of speech and freedom of association, Human Rights Watch said today. The government should release those imprisoned under the law, drop charges against others accused under the law, and launch an inclusive process to review the law with the aim of revoking or revising provisions that violate international human rights standards.

The National Security Law - adopted in 1948 as a temporary measure to counter the military threat posed by North Korea - criminalizes positive comments about North Korea or the dissemination of North Korean propaganda. Under the administration of President Park Geun-Hye and previous governments, it has frequently been used against those with different views of North Korea or South Korean policy. The two Koreas are technically still at war, as the Korean War ended with only a ceasefire in 1953.

"The National Security Law is a relic of the Cold War that should be revised or scrapped," said Brad Adams, Asia director at Human Rights Watch. "Its use raises serious questions about the government's commitment to freedom of expression and association. By targeting people with different political opinions with criminal charges rather than debating the underlying issues, the government undermines the free exchange of opinions that are fundamental to a rights-respecting democracy."

The National Security Law imposes significant restrictions on the freedom of South Koreans to create and join political associations, or even to meet with other people. The law imposes severe criminal penalties on anyone who joins or induces others to join an "anti-government organization." That term is not clearly defined in the law, and has been used to apply to everything from North Korea itself to organizations that simply express ideological views at odds with those of the South Korean government. The law further criminalizes anyone who "constitutes or joins an organization aimed at” propagating, inciting, praising, or acting in concert with an anti-government organization.

South Korea has been urged by the United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression, the UN special rapporteur on the situation of human rights defenders, the UN Human Rights Committee, and many nongovernmental organizations to abolish or substantially amend the National Security Law to bring it into line with international legal standards. Instead, successive administrations have used the law with increasing frequency. The highest number of cases in a decade was filed during 2013, Park's first year in office.

"More than sixty years since the end of all-out war, it is ridiculous to claim that praising North Korea or advocating for Pyongyang's policies constitutes a real threat to South Korea's national security," Adams said. "The South Korean government should have the confidence that its ideas will prevail over discredited North Korean propaganda. The National Security Law is a dinosaur that should fade into extinction."

The National Security Law's Draconian Provisions

Under article 7(5) of the law, the mere possession of books that contain views similar to those held by the North Korean state can lead to a jail term of up to seven years. The law can also effectively criminalize the act of meeting people who express views in sympathy with North Korea, since article 8(1) of the law applies to “any person who makes contact with a member of an anti-state organization or a person who has received an order from it, by means of a meeting, correspondence or other method, with the knowledge of the fact that it threatens to endanger the existence and security of the nation or democratic fundamental order.”

“Despite the nature of the regime in North Korea, individuals in South Korea should be able to acquire, publish, or possess books or other expressive material without worrying about being prosecuted,” Adams said. “In a democracy, everyone should have the right to peacefully express their views on political issues such as the presence of foreign troops, the need to abolish laws, or their preferred economic system, even when those views happen to correspond with those expressed by North Korea or conflict with current government policy.”

Cases of Criminalizing Speech

According to the Supreme Prosecutor's Office, there were 46 cases filed over alleged violations of the law in 2008, but under President Lee Myunbak the law was increasingly used, with 112 cases filed in 2012. In 2013, the first year of the Park administration, the authorities filed 129 cases. In 2014, 57 cases were filed, including against high-profile political figures.

In January 2015 the law was invoked to interrogate Korean-American author Shin Eun-Mi. Hwang Sun, a critic of the Park administration who helped organize Shin Eun-Mi's tour and appeared several times with her on stage, was arrested on January 13, 2015, and is under trial for violating the law. Representative Lim Su-Kyung, a pro-unification activist in the opposition New Political Alliance for Democracy, was called in for questioning on January 15 over allegations that she appeared on the stage with Shin and Hwang.

The arrest warrant against Hwang Sun cited her participation on the tour and possession of a personal diary stating that North Korea was “my country” and her writing of poems (published in books in South Korea and North Korea) that praised North Korea. Shin Eun-Mi's alleged offense was to describe conditions in North Korea in a positive manner, although she also criticized conditions. In doing so, authorities claimed she violated article 7 of the law which criminalizes “praising or propagating” an “anti-state organization.” Under that provision, praising North Korea, which is considered an “anti-state organization” under the law, or simply expressing political or ideological opinions sympathetic or similar to those of North Korea, can result in a prison sentence of up to seven years.

For example, Chung Seol-Kyo, a poet and contributor with Jajuminbo, was arrested on September 9, 2013, and then indicted on September 30, 2013, by the Chuncheon District Prosecutor's Office for producing and spreading anti-state content. On September 11, 2014, he was found guilty and sentenced to 18 months in prison. At the trial, the poet was found guilty of writing and spreading content that supported North Korea's nuclear development and armed federal unification; North Korea's Juche ideology; praising North Korean leaders Kim Il-Sung, Kim Jong-Il, and Kim Jong-Un; and asking for the abolition of the National Security Law and the departure of United States troops in South Korea. At his appeal he was also found guilty of receiving an email with a poem that praised North Korea. Chung was released March 16, 2015, after serving his full term.

The use of the National Security Law to suppress the peaceful expression of opinions violates South Korea's international human rights obligations. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which South Korea is a state party, stipulates that “everyone has the right to freedom of opinion and expression.” Although states can limit free expression in the interests of national security, they can only do so when it is “necessary in a democratic society” and for compelling reasons, such as the protection of military secrets. As the UN Human Rights Committee has made clear, the ICCPR “does not permit restrictions on the expression of ideas, merely because they coincide with those held by an enemy entity or may be considered to create sympathy for that entity.”

The UN special rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, has stressed that associations “should … be free to promote their views – even minority and dissenting views, challenge governments about their human rights record or campaign for democratic reforms, without being accused of treason and other defamatory terms. Dissenting views should be seen by the authorities as an opportunity for dialogue and mutual understanding.”

North Korea remains one of the most repressive countries in the world. The UN Commission of Inquiry on North Korea, which examined the rights situation in the country, found:

Systematic, widespread, and gross human rights violations have been and are being committed by the Democratic People's Republic of Korea, its institutions and officials. In many instances, the violations of human rights found by the commission constitute crimes against humanity. These are not mere excesses of the State; they are essential components of a political system that has moved far from the ideals on which it claims to be founded. The gravity, scale and nature of these violations reveal a State that does not have any parallel in the contemporary world.

Recommendations to Reform the National Security Law

Human Rights Watch called on the South Korean government and parliament to take the following steps:

Repeal the National Security Law. Genuine threats to national security can be addressed through existing criminal laws or, if necessary, through new narrowly defined legislation;
Until the law is repealed, amend it substantially to limit its application to organizations, acts, and expression that create a genuine threat to national security. The law should make clear that merely expressing views that agree with those of North Korea or making positive comments about some aspect of that country does not demonstrate a risk to national security. In particular:

The definition of “anti-state organization” in article 2 should be amended to include only groups that advocate the violent overthrow of the government; and

Both article 4(1)(2)(a), which criminalizes the disclosure of any military or state secret “which is accessible to limited persons to acquire in order to avoid an important disadvantage to the national security,” and article 4(1)(2)(b), which criminalizes the disclosure of “any military or State secret” other than those referred to in subsection (a), should be amended to establish a public interest defense;

Article 7 should be abolished in its entirety as it uses extremely broad and vague terms to criminalize peaceful expression, such as:
Article 7(1): Praising or propagating an anti-state organization;
Article 7(3): Joining an organization aiming to praise or propagate an anti-state organization;
Article 7(4): Circulating “false” facts that threaten confusion of social order while a member of an organization referred to in 7(3);
Article 7(5): Manufacturing, importing, reproducing, etc. any document or expressive materials with the intention of violating 7(1), 7(3), or 7(4);
Article 7(6): Attempting to perform actions that violate articles 7(1), 7(3), 7(4), or 7(5); and
Article 7(7): Preparing to take actions that violate articles 7(1), 7(3), 7(4), or 7(5);
Article 8, which prohibits making contact with a member of an “anti-state organization,” should be abolished in its entirety;
Article 9(2), which provides a 10-year sentence for offering “any convenience” to someone who has committed or is going to commit one of the very broad “crimes” prescribed in the law, should be abolished in its entirety; and

In the meantime, each of the provisions that has been held “constitutional on condition of proper interpretation” by the Constitutional Court of Korea (including article 4(1)(2)(b), which was limited by the court to cases in which the disclosure “may definitely threaten the national security,” and article 6(2), which was limited by the court to cases in which the escape or infiltration “may definitely threaten the existence and security of the State or free democratic order”) should be amended to explicitly reflect the interpretation found to be constitutional so that prosecutors and the National Intelligence Service are fully cognizant of the limitations imposed by the Constitutional Court.

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