Conscripted Soldier and Refugee : A Two-faced South Korean Criminal

Conscripted Soldier and Refugee : A Two-faced South Korean Criminal

Seungmin Jung

Recently, many States are reported as considering implementing Military Conscription or Drafting as a response to the rising insecurity in international relations as well as terrorism. Military Conscription is the compulsory enlistment of a State’s citizens to its army. We are witnessing a trend as well as a heated debate on this issue especially in relation to its effects on Fundamental Human Rights. On the other hand, South Korea, a State which practices military conscription of its men is witnessing a growing number of its population abandoning his Motherland to live as a “refugee” in a foreign environment overseas. Make no mistake, a life of a refugee entails no luxury – the choice to become a criminal back home being denied the right to return to his family is a high price one must pay. However, it would also be a correct assessment to state that serving in the military absent his consent or choice in the matter during one’s best years in life is also a steep sacrifice in one form or another. Let us attempt to delve into the crux of this debate first by examining the criterion applied in determining a “Refugee” under public international law, specially the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

Under Article 1 of the 1951 Refugee Convention, there are 4 criterion that need satisfaction in order for a person to qualify as a “Refugee.”

  1. Definition of the term “refugee”
    A. For the purposes of the present Convention, the term “refugee” shall
    apply to any person who:

    • (1) …
    • (2) As a result of events occurring before 1 January 1951 and owing to wellfounded
      fear of being persecuted for reasons of race, religion, nationality,
      membership of a particular social group or political opinion, is outside
      the country of his nationality and is unable or, owing to such fear,
      is unwilling to avail himself of the protection of that country; or who,
      not having a nationality and being outside the country of his former
      habitual residence as a result of such events, is unable or, owing to such
      fear, is unwilling to return to it.

To recap, there needs to be a (1) well founded fear of being persectued, (2) the reasons of that persecution must be race, religion, nationality, membership of a particular social group or political opinion, (3) man or woman outside the country of his/her nationality and (4) unable or owing to such fear is unwilling to avail himself of the protection of that country to establish one as a “refugee.” The question as presented here is that “would South Korean military conscription qualifly as a persecution based on race, religion, nationalilty, membership of a particular social group or political opinion?

Customary international law provides same level of protection contained in the Refugee Convention to persons who do not satisfy the formal criterion.

[case] Cartegena Declaration on Refugees (adopted 22 November 1984) in Annual Report of Inter-American Commission on Human Rights (1984-85) OAS Doc OEA/Ser.L/II66/doc.10rev1

Foster M, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek
Protection in Another State’ (2008) 28 MICH. J. INT’L L. 223

Worster W, ‘The Evolving Definition of the Refugee In Contemporary International Law’
(2009) 30 BERKELEY INT’L L. J. 146

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