—Yoomin Won, Associate Professor at Seoul National University School of Law
On the night of December 3, 2024, South Korean President Yoon Suk Yeol suddenly declared a state of emergency martial law for the first time in 45 years. For many citizens, martial law was a term found in history books but had long disappeared from reality. Citizens over the age of 50 were frightened as they remembered the terrifying sounds of gunfire they experienced during martial law in their youth. Some adults tried to reassure young people by saying that this time martial law seemed somewhat less severe compared to the frightening one they had experienced in the past.
Since the Korean War in the 1950s, South Korea, which was devastated by the war, is widely known for achieving the “Miracle on the Han River” through its remarkable economic progress. It is recognized as a global powerhouse in advanced industries and cultural exports such as K-pop, movies, and TV series. Compared to its economic growth, political progress came much later. It is difficult to summarize the tumultuous history briefly, but after enduring several periods of dictatorship, democracy was achieved through the 1987 democratization movement. Today, South Korea is regarded as one of the most stable democracies in Asia, alongside Japan and Taiwan. However, the declaration of “martial law,” something that could only be associated with past dictatorial regimes in South Korea, was truly unbelievable.
It has been almost two months since the declaration of emergency martial law, but South Korea’s political situation remains in turmoil. As a result of the declaration, a resolution for impeachment was passed against Yoon, and on December 14, 2024, he was suspended from office. The impeachment trial is currently ongoing at the Constitutional Court of Korea. Following this, Prime Minister Han Duck-soo assumed the role of acting president. He was also subject to impeachment after refusing to appoint the vacant justices at the Constitutional Court and also refusing to promulgate the laws to initiate special investigation procedures for insurrection charges against Yoon and other charges against Yoon’s wife. His impeachment was passed on December 27, leading to his suspension from office. The next in line, Deputy Prime Minister and Minister of Economy and Finance Choi Sang-mok, assumed the role of acting president and acting prime minister. The declaration of the emergency martial law has raised several constitutional issues regarding the protection of constitutional order, including impeachment, the acting presidency, and the appointment of Constitutional Court justices.
An investigation into insurrection charges related to emergency martial law is also underway. The Minister of Defense and key commanders responsible for the operation, which involved deploying military personnel to the National Assembly, have been arrested. The criminal trial against them has already begun while they remain under arrest. Regarding the investigation into the President’s involvement in insurrection, there has been confusion over whether the police, prosecutors, or the newly established Corruption Investigation Office for High-ranking Officials (CIO) holds the authority to investigate. Yoon had been in seclusion at his residence, while security personnel had been preventing the execution of the arrest warrant. After several failed attempts, Yoon was finally arrested on January 15. On January 19, when the judge at the Seoul Western District Court decided to extend Yoon’s detention, hundreds of his supporters broke into the court building and rioted, destroying the main door, windows, furniture, and office equipment while searching for the judge, who had already left. Issues regarding the application of criminal law and criminal procedure law, including the insurrection charges, the execution of the arrest warrant, and investigative authority, have also become contentious.
The declaration of martial law and the restrictions on individual rights resulting from such measures are not unique to South Korea. Many countries around the world continue to declare states of emergency under the guise of crises, often using them as tools to achieve political objectives. For this reason, South Korea’s case is not just an isolated event but serves as a warning to other states. It demonstrates that even in a state considered to be a democracy, there is always a risk of democratic backsliding. Therefore, it is essential to examine South Korea’s declaration of martial law from an international human rights law perspective, considering the broader implications for global human rights standards.
This symposium will be composed of three posts by three colleagues from the same law school, each specializing in different areas of law: constitutional law, criminal law, and international law. We will each present analyses of the declaration of martial law and the subsequent developments from our respective perspectives. First, Professor Dongeun Joh, a constitutional law expert and former judge, will offer an analysis of the declaration of emergency martial law from a constitutional standpoint. He will explain martial law in the context of Korea’s democratic history, and the legal issues surrounding judicial appointments to the Korean Constitutional Court. He will offer his assessment from both optimistic and pessimistic perspectives. Second, Professor Woongjae Kim, a criminal law professor and former judge, will provide a criminal law perspective on the crime of insurrection and related investigations. He will examine whether the elements of the crime of insurrection are met under Korean criminal law and case law, as well as Yoon’s defense arguments, including whether this highly political act can be subject to judicial review. He will also introduce the power struggle over investigative authority between the prosecution, police, and the newly established CIO. Finally, I will analyze the declaration of martial law from the viewpoint of international human rights law. Article 4 of the International Covenant on Civil and Political Rights sets out the conditions that must be respected even when human rights are restricted during states of emergency. As a former Constitutional Research Officer at the Constitutional Court, this analysis will demonstrate that South Korea’s declaration of martial law failed to adhere to these requirements.
A wrongly declared state of emergency leaves a historical trauma on both society and individuals. By holding those responsible for the recent declaration of martial law in South Korea legally accountable, we can ensure that emergency powers are not abused. This will help prevent any potential regression of democracy and pave the way for a stronger foundation of the rule of law in the future.
Suggested citation: Yoomin Won, Symposium on South Korea’s Martial Law Declaration: Introduction, Int’l J. Const. L. Blog, Jan. 25, 2025, at: http://www.iconnectblog.com/symposium-on-south-koreas-martial-law-declaration-introduction/
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