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Home » Counter- Terrorism » Republic of Korea: Analysis and Contemplation: Counter- Terrorism Law in Republic of Korea & International Terror Prevention

Republic of Korea: Analysis and Contemplation: Counter- Terrorism Law in Republic of Korea & International Terror Prevention

Written by : Jung-Min Yoo, Hye-Min Choi, Jae-Heuk Kim, Hee-Joon Yoo & Hyeok-Joon Kwon

I. Introduction

On March 2, 2016, the world’s longest filibuster in South Korea finally ended. It lasted for 192 hours to delay the proposed legislation of anti-terrorism bill backed by President Park Geun-hye and her ruling Saenuri Party. Recently a spate of terrorist attacks by Islamic State(IS) affected even many countries in Asia, and the need for comprehensive measure to prevent terrorism became apparent in Korea. The bill includes the article that allows National Intelligence Service (NIS), national main spy agency, to collect a wide range of personal data and monitor any suspect of terror attacks. Though Minjoo Party opposed to the bill asserting it could be abused for political oppression as NIS takes power to check civilians’ communication and financial information, it was passed after the filibuster ended. This law review will analyze the controversy over new anti-terrorism legislation and the problematic issues so far regarding anti-terrorism law that have been raised by National Human Rights Commission of Korea and many non-governmental organizations. Suggesting the directions of improvement of the law, this review will further examine the status and potential of Korea in Asian legal cooperation to counter terrorism, which is the theme of 2016 Asian Law-Students’ Association(ALSA) Law Review. Therefore, the study will mainly investigate (1) recent legislation of anti-terrorism law in Korea, (2) the issue of human rights violation and political dissension that have blocked the legislation, and (3 )the connection and possible role of Korea regarding future Asian anti-terrorism cooperation.

First, the definitions for ambiguous terms as “terrorism,” or “international terrorism” must take precedence to discuss anti-terrorism law. Generally the word “terrorism” or “terror” means the vicious acts of violence committed for specific purposes. In this study terrorism is considered to have the same meaning with the term “terrorist attack”. The definition of terrorism is still a controversial issue and it is difficult to find a clear definition that is agreed internationally. However, the precedent study in Korea reviewed various definitions of terrorism by scholars such as Hoffman, Merari, and Jin-Tai Choi. It defines terrorism as an intentional, systematic and organized combat or strategy that poses a threat to the general public for the purpose of political intimidation by force, expecting the psychological pressure and reaction.[1] Also, regarding the complexion of the terrorism after the 1990s, the post-Cold War era, experts are using the term “new terrorism” as it features vagueness of the agent and the attack targeting unspecified masses unlike conventional terrorist attacks.[2] As the aspects of terrorism changes significantly, it becomes impossible to prevent terrorism effectively by just a few countries’ action, and international cooperative efforts to counter terrorism are prompted. In 1937, the first international attempt to define terrorism was made by the League of Nations’ “Convention for the Prevention and Punishment of Terrorism”. In article 1.1, it defined “acts of terrorism” as “criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public”. There are other various precedents of defining international terrorism by the United States, The Council of Europe, and United Nations General Assembly.[3]

In Korea, the government limited the ambiguous definition of terrorism in anti-terrorism bill proposed by NIS in November, 2011 to the acts defined by terrorism crime in the generally approved international conventions. Also the term terrorism agent is defined as a terrorist organization or linked groups identified by international society including United Nations(UN). The new anti-terrorism law in 2016 defines terrorism as the actions conducted to threaten the public or disturb the enforcement of authority by the state, local governments, or foreign governments including international organizations established by international treaty or conventions. Then it specifies subordinate provisions regarding homicide, holding a hostage, attacks on means of transportation such as flight and vessel, and even use of nuclear weapon. As exact definition agreed by all parties cannot be drawn, Korean government must exert utmost effort to decide the definition not only complying with international precedents but also establishing specific range of terrorist acts so that it can reduce the risk of human rights violations by too expansive definition.

II. Disputes regarding newly enacted Counter Terrorism Law – Articles

In Korea, anti-terror law was enforced in 2016. As Korea has the previous example of passing the similar law article during the 1970s under the President Park Jung Hee’s dictatorial government in the name of ‘state of national emergency, before passing the law, there has been a long filibuster going on between members of national assembly. Even after the filibuster ended, there are still ongoing negotiations regarding the concerns of the probability of violating human rights by the personal information collection of the National Intelligence Service while the specific measurements to avoid these situations are unprepared. Besides the legislation of the anti-terror law, passing the anti-cyber terror law is also being discussed since the recent incident which is being suspected to be related to North Korea.

The issue of implementation of anti-terrorist law in South Korea has been disputed since 2002 when the anti-terror law based on the first draft of National Intelligence Service submitted. But this submission was rejected because many organizations and NGOs like National Human Rights Committee and Korean Lawyers’ Association showed strong disagreement about this idea. The major reasons why these organizations disagreed with the anti-terrorist law were that current law systems are believed to be sufficient to prevent and punish the terrors occurred and since the definition of the ‘terror’ itself is so ambiguous and undecided that it has a huge percentage of depriving the human rights by the government power.

In 2016, ‘Anti-terror law for protection of the citizens and public safety’ was passed. And these 9 articles are mostly about collecting the individuals’ information who are suspected to be terrorists, which in turn is not free from the concerns of human rights violation. Additionally, there are no regulations regarding the cases of the compensation of the innocence misunderstood as a terrorist.

According to the declaration submitted by the National Assembly, the main background of issuing this law is to explicitly regulate the duty of the nation and successfully protect the public health and property. The law is mainly consisted of three parts; the definition of the terror, establishment of new governmental agencies to handle the cases of terror, and empowering the related agencies to collect the personal information and investigate the suspected terrorist.[4]

Article 2 recognizes the concept of terror as the actions that jeopardize the national security and the public safety which are mostly related to the acts of criminals regulated by the domestic related law. The 8th and 10th article states that special agency for discussing and declaring measures to combat terrorism to be established under the control of the president. And a standing committee will take charge of the prompt decision making and implementing the law.

Article 16 legitimates the personal information collection and investigation of the suspected terrorists.[5] Article 9 is about collecting information about individuals considered a security risk, but is also not immune from human rights violation. In particular, according to the paragraph 4, NIS is supposed to report before or after the inspection. Obtaining ex post facto approval can be effective in immediate response, but it possibly allows the abuse and indiscreet investigation on individuals. The Article 7 provides that there must be a anti-terrorism human rights protector to prevent the abuse, but it may be asked whether the presence is effective in that there is only one position for the role. In addition, the anti-terrorism law has no practical Articles regarding the compensation for individuals who are mistakenly suspected as terrorist act criminals.

III. Historical and Political Background of Counter-Terrorism Law Controversy

As previously mentioned, chaos erupted as the concept of a counter-terrorism law emerged in South Korea. Mainly, it was attributed to the history of such security laws abused within the nation. In this section, various occasions on which such security laws were enacted and taken into account will be discussed in chronological order.

In 2002, the anti-terrorism bill based on the draft by NIS was proposed. However, statements from National Human Rights Commission of Korea and Korean Bar Association were also proposed to oppose the bill. The associations were against the bill mentioning that the current law on punishment of violent acts is sufficient to prevent and punish terrorist crimes. Also the definition of terrorism in the bill was so ambiguous that it runs counter to the principle of nullum crimen sine lege (no crime without law). They rather expressed concern about the abuse of governmental authority and the infringement of human rights. Moreover, since NIS is expected to take the initiative of the investigation, there was a controversy over the institution to lead all the comprehensive executions of anti-terrorism law. The practical procedure for relief and compensation regarding unfair surveillance is also needed.[6] The initial phase of South Korea was quite unstable. After an abrupt independence followed up by a forced dividing, South Korea suffered from the Korean War. But the war was not the only problem the nation faced. From over 60 years of the government’s history, more than one third was taken over by a dictator, or a coup’de dat. Under such sovereignty, laws, most notably the National Security Act, originally enacted to secure the nation became tools for the government to restrain those who were proclaimed as a threat by the government. Additionally, it violated human rights, specifically such as freedom of expression.

During the ‘Seung-Man Lee’ regime, the government widely abused the National Security Act. One such example was the ‘Bong-Am Cho Incident’ in 1958. As the citizens were losing their confidence with the government, Bong-Am Cho, a liberal politician ran for president and although he failed, he emerged as a potential threat to Lee’s next presidential term. Later that year, Cho started the Liberal Political Party. Lee’s party became very popular throughout the period. In 1958, Cho was arrested, indicted under the National Security Act for allegedly working as a spy for North Korea. Cho asserted that the Koreas should have a peaceful reunification, an idea opposed to the government’s intention to reunify by force. In 2009, the Truth and Reconciliation Commission proposed to reconsider this decision and the Supreme Court found Cho not guilty in 2011. Despite the fact that Cho was not actually planning treason, but rather just having a different political view with the government, he received the death penalty and was hung to death later on.[7]

The National Security Act also enabled the government to use its police force and military force to physically assault citizens. In 1960, citizens from Masan, Gyeong-Sang Namdo Province protested against the results of that year’s presidential election. The polls did not match with the actual number of voters, leading to possible fabrication. Throughout the process, a high school student was killed by a gunshot from the police. Freedom of Expression was restrained based on the assumptions that such actions were deemed as anti- government.[8]

Although Seung-Man Lee resigned afterwards, such patterns repeated in later governments as well. In the 1970s, Dae-Jung Kim (later elected as 15th president of ROK) was kidnapped by the then government after he was deemed as a political threat to the incumbent president. In 1972, it also closed all political activity including the National Assembly, with reason that the nation is in emergency, for it is under potential threat from North Korea. Any citizen who blamed the government during the period was taken into custody. In the 1980s, the government used its military forces to “neutralize hostiles who are against the government” in Gwangju, Jeon-ra Namdo Province. All such actions were deemed as having broken the law.

As such illegal or abusive actions made by the government under the National Security Act transpired, there should be much consideration put into the newly enacted Counter-Terrorism Law. The situation is much similar, for in the past, National Security Act was billed under the purpose of combating threats, mostly North Korea, yet was used to restrain political actions and infringe human rights.

IV. Expectations about South Korea’s role in the international terror prevention cooperation

South Korea cannot be expected to lead a role in international terror prevention cooperation through offering a model suitable to other nations. This is mainly due to its lack of terror experiences. Korea had been known as a terror-free zone, ranking 124th in the Global Terrorism Index.[9] Though the 11 September 2001 World Trade Center and Pentagon attacks had prompted South Korea to organize a new national system of emergency response for terrorism-related events, no such events had occurred since and the country had no reason to pay extensive attention on the issue of terrorism. The feedback of the emergency response system and the setup of an effective and consistent system has happened only recently in 2014. Prior to this, the emergency response has been handled by broad, unprofessional organizations, but with not much effectiveness as proven during the Sewol Ferry Accident.[10]

However, Korea can be expected to serve a role, namely in counterpoising between the terror prevention efforts and its possible adverse effects utilizing its historical and experiential legacies. All kinds of terror prevention efforts are prone to bringing along issues like human right violation and government hypertrophy.[11] In the international stream of terror response efforts, Korea can be expected to take the lead in study the possible side effects of the terror prevention measures and the ways to prevent them. As an example, the filibuster in 2016 to delay the terror prevention legislation from passing was one such effort as this much of intense opposition was not seen in any other countries when working with terror prevention measures. Behind this exists Korea’s experience of human right violation during the times of dictatorship of 1960s to 1980s. During these times, Korea has suffered long time of human right violation under the cause of terror prevention and national stability. South Korea may not be able to suggest a complete, applicable model, but it can be expected to contribute by finishing up a more sustainable terror prevention model.

Once an Asian, integrated anti-terror agreement is made, it is important to necessitate the countries to practically monitor each other. As for the international legalization, clear contents, well-set procedures, judgmental organization independent from individual nations and creation of legal precedent should be referred to in the step of legalization.[12] According to precedent studies, territorial principle, personal principle, protection principle should be noticed in the universal jurisdiction. Also according to the precedent studies on international flight and naval terror, it is important to keep the foreigner’s terrorism crime under offshore jurisdiction and cognize jurisdiction as a responsibility so that prosecution and hand-over of the criminal can be possible.[13] Especially in order to disintegrate terror organization and prevent terrorism from taking place, international cooperation in the field of finance is crucial; for instance, by stopping the financial organizations from procuring the terror funds. 130 countries have signed the International Convention for the Suppression of the Financing of Terrorism on December 1999 and most of the developed nations use it in the working-level.[14] Also, FATF recommendation developed within each Asian nations’ criminal law is capable of bringing changes.

 V. Conclusion

Considering terrorist attacks that occurred recently in Asian countries including Indonesia and Iraq, it is obvious that there is an urgent and acute need for establishing stable and effective legal cooperation to combat terrorism in Asia. As acts of terrorism are getting more and more cunning and the range of potential terrorism targets has become wider than ever nowadays, it is impossible for any country to deal with the threats of terrorism by itself because of both technical and legal limits.

As an initial step towards international anti-terrorism cooperation, Asian countries should make efforts to form a strong alliance against terrorism. South Korea rightly needs to participate in the cooperation as well, as it could likely serve its own role and be provided with better protection. This law review suggested 1) defining terms such as ‘terror’ or ‘terrorist’ in order to prevent domestic power abuse, 2) securement of practical legal force through the establishment of universal jurisdiction and control of the terror capital, 3) establishment of system and precedent that allows practical surveillance, and 4) pre-stipulation of human right protection. It especially focused on anti-terrorism law recently legislated in South Korea and concerns about its side effects, namely human rights violation and abuse of the anti-terrorism law with political purpose of strengthening governmental power. Several clauses were specifically pointed out as potential threats to the innocent public as those clauses give excessive authority to the National Intelligence Service, the spy agency of South Korea. Historical precedents for political oppression and human rights abuse in South Korea were also mentioned in order to explain why there are so many citizens who do not trust the government thoroughly.

Furthermore, due to its lack of experience, South Korea is not considered suitable for serving a leading role in suggesting an effective model of anti-terrorism cooperation. It might fail to consider important threats that many Asian countries face, or underestimate the impacts of potential terrorist attacks. However, it is emphasized in this law review that South Korea has been under military dictatorship for decades and therefore deeply aware of the danger of the abuse of legal authority. The controversy recently raised in South Korea over its anti-terrorism law could be clear evidence which shows how much South Korea is concerned about the probability of human rights violation and political repression under the guise of anti-terrorism. Thus, South Korea can effectively serve a role as a monitor which makes sure that the basic human rights of the public are guaranteed under terrorism prevention policies.

As a result of considerable discussion, Asian nations will come up with an outline for legal cooperation to combat terrorism in the form of a treaty or a convention. If any changes to the anti-terrorism law of South Korea are required in order to make it compliant with international agreements, the National Assembly and the government should put their efforts to make appropriate amendments. Despite the fact that South Korea has been considered as a terror-free country for a long time, it should start trying to form a solid legal cooperation against terrorism with its neighbors as the threat of terrorism is rising more than ever.

 

 

 

[1] Ho-Soo Lee and Sul Jin-Bae. “A Study on International Conventions to Counter Terrorism.” The Journal of Peace Studies 16.1 (2015): 31-60. Print

[2] Ho-Soo Lee and Sul Jin-Bae. “A Study on International Conventions to Counter Terrorism.” The Journal of Peace Studies 16.1 (2015): 31-60. Print

[3] The National Assembly’s Intelligence Committee. Sourcebook Regarding Terrorism, The National Assembly, 2002. Print.

[4] The National Assembly’s Intelligence Committee. Sourcebook Regarding Terrorism, The National Assembly, 2002. Print.

[5] Sung-il, Jo. “Research on ways to improve antiterrorism policy of Korea.” 2011. Print

[6] The National Assembly’s Intelligence Committee. Sourcebook Regarding Terrorism, The National Assembly, 2002. Print.

[7] Gyung-Soo, Yeo. “Cho Bong-am, pen name Juksan and the Principle of Peace State.” 2014. Print.

[8] Dong-Pyo, Jang. “A Historical Review of the March and April Masan Resistance in the 1960’s.” 2000. Print

[9] Global Terrorism Index, Institute for Economics & Peace, 2015 http://economicsandpeace.org/wp-content/uploads/2015/11/Global-Terrorism-Index-2015.pdf

[10] The Associated Press(2015), “South Korea ferry disaster sparks anti-government protest”, thttp://www.cbc.ca/news/world/south-korea-ferry-disastersparks-anti-government-protest-1.3048816

[11] Corner Gearty, Aligning anti-terrorism laws with criminal law and human rights, http://www.lse.ac.uk/researchAndExpertise/researchImpact/caseStudies/gearty-aligning-anti-terrorism-laws-criminal-lawhuman-rights.aspx

[12] Don Mun, “International Legalization Phenomena and a Legalized Dispute Settlement Mechanism: Understanding the Causes and Effects.” 2002. Print.

[13] Hyun Jin Park, “From Individual, Collective to Universal Criminal Jurisdiction for Combatting Global Terrorism.” 2012. Print.

[14] Jin Kuk Lee, Joong Jin Toh, and Chun Hyon Lee. “Rechtspolitik fuer die Bekaempfung gegen Terrorismusfinanzierung.” 2006. Print.


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