allowing the Ministry of National Defense to demand suspension of an investigation ‘for
circumstances that significantly affect the national security, national emergency, or impede
the performance of operational missions.’
There are concerns that these regulations
excessively restrict the right to investigate of the military human rights officers, and in
particular with the latter provision, the requirement of ‘execution of an operational mission’
can be applied broadly as it is an arbitrary and comprehensive concept.
The amended Military Court Act is criticized for not abolishing the military courts in
peacetime. The current military judicial system, such as the operation of the military courts
in peacetime, has been continuously seen as a problem because it enables the commanders to
reduce or conceal incidents and is insufficient in materializing judicial justice and human
rights protection. On the other hand, those who oppose the abolition of military courts in
peacetime argue that the revision of this law alone can place excessive restrictions on the
military's unique functions, as well as efficient operation of military courts in wartime.
On the other hand, although sexual assault crimes, soldiers' deaths, and incidents that
occurred before enlistment are now investigated by civilian authorities, the fact that initial
investigations are still led by the military is also cited as a problem. There is a limitation
because the military investigation authority does not have to hand over the case to the police
if it determines that there is no crime that caused the death.405) Moreover, a controversy
emerged because the civilian police handles the sexual violence crimes, but the military
police investigates secondary crimes.406)
C) Tasks to Protect the Human Rights in the Military
Thus far, the human rights in the military have progressed slower than other areas because
of Korea's armistice status and the unique characteristics of the military. However, even after
considering the unique characteristics of the military and national security, soldiers have the
fundamental rights just like ordinary citizens, and the state has an obligation to actively
protect the basic human rights of the soldiers fulfilling their military duties
405) Kyunghyang Shinmun, 8 soldiers died only 7 months after implementing new Military Court Act, Jul. 22, 2022.
406) Yonhap News, Sexual crimes in the Military is investigated by the police and the secondary offense is investigated
by the military police, Jul. 11, 2022.
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