South Korea

Constitutional Provisions

The 1948 Constitution of the Republic of Korea (South Korea), as amended, recognises that it is a duty of the state to "confirm and guarantee the fundamental and inviolable human rights of individuals".Art. 10, 1948 Constitution of the Republic of Korea.The Constitution does not explicitly protect the right to life though it is specified that "No citizens shall be tortured...."Art. 12(2), 1948 Constitution of the Republic of Korea. 

According to Article 21(1), all citizens shall enjoy freedom of assembly and association.

The Constitution refers obliquely to the police, stipulating that the relatives of a police officer killed in the line of duty shall not be entitled to claim damages against the state but does not otherwise refer to a police force or the rules governing use of force by law enforcement agencies. 

Treaty Adherence

Global Treaties

Regional Treaties

There is no regional Asian human rights treaty to which South Korea could become party.

National Legislation

Police Use of Force

Police forces in South Korea fall under the responsibility of the National Police Agency. The Agency declares that its goals include "Solidifying a culture of compliance in demonstrations through a consistent and fair enforcement of the law", by:

• Establishing the rule of law through the management of assemblies and demonstrations that meets the needs of the public
• Conducting a full and thorough investigation of violent protestors and conspirators
• Expanding and securing legal and policy foundations to reinforce the enforcement of law in the frontline

The Combat Police division of the National Police Agency, which is composed of military conscripts, is an anti-riot paramilitary unit. 

The 2017 Act on the Performance of Duties by Police Officers does not explicitly address police use of force beyond stating that the authority of police officers under the Act "shall be exercised to the minimum extent necessary for performing their duties and shall not be abused".Art. 1(2), 2017 Act on the Performance of Duties by Police Officers.With respect to firearms, the Act states that:

The use of lethal police equipment shall be restricted to the necessary minimum.Art. 10(4), 2017 Act on the Performance of Duties by Police Officers.

This does not comply with international law and standards, which restrict the use of firearms to situations of imminent threat of death or serious injury or a proximate and grave threat to life.  

Police Oversight

The National Human Rights Commission of Korea has the power to hear complaints of excessive or indiscriminate use of force by the police, though in 2017, in its Concluding Observations, the Committee against Torture expressed concern about the Commission's "low rate of acceptance of complaints relating to torture or ill-treatment".

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In 2015, in its Concluding Observations on South Korea, the Human Rights Committee expressed its concern

about the severe restrictions placed on the right to peaceful assembly, including the operation of a de facto system of authorization of peaceful assemblies by the police, cases of use of excessive force, car and bus blockades, and the restriction on demonstrations held past midnight. It is also concerned about the frequent application of criminal law to impose fines on and arrest journalists and human rights defenders for either organizing or participating in protests without due consideration for their right to freedom of assembly.Human Rights Committee, Concluding Observations on South Korea, UN doc. CCPR/C/KOR/CO/4, 2015, para. 52. 

The Committee called on South Korea to "ensure that all persons enjoy the right to peaceful assembly, and that limitations on that right are in strict compliance with article 21 of the Covenant. It should review its regulations on the use of force and ensure that they are in compliance with the Covenant, and train its police officials accordingly."Human Rights Committee, Concluding Observations on South Korea, UN doc. CCPR/C/KOR/CO/4, 2015, para. 53.

In 2017, in its Concluding Observations on South Korea, the Committee against Torture addressed in detail the use of force by police in connection with assemblies. The Committee was concerned about: 

(a) The excessive use of force by law enforcement officials during demonstrations such as the “candlelight rally” of 2008 and the “peoples’ rally” in 2015 and that such exercise of force was accompanied by the use of water cannons, tear gas, fire extinguishers, electrical discharge weapons (tasers), iron clubs, batons and shields; 
(b) Reports that numerous persons were injured during the candlelight rally as a result of the excessive use of force and that law enforcement officials refused to grant some of the detained protesters access to medical assistance; 
(c) The death on 25 September 2016 of Baek Nam-Gi, a 68-year-old farmer, from extensive brain injury as a result of being hit in the head by a blast from a high-pressure police water cannon during the peoples’ rally in Seoul on 14 November 2015 and the reported refusal of law enforcement agencies to launch an investigation into the excessive use of force by the police that led to Mr. Baek’s death; 
(d) The reported excessive use of force, including the firing of water cannons and use of pepper spray (capsaicin) against the families bereaved by the Sewol Ferry accident during the one-year memorial assembly.Committee against Torture, Concluding Observations on South Korea, UN doc. CAT/C/KOR/CO/3-5, 2017, para. 13.  

The Committee called on South Korea to: 

(a) Review the tactics used for the management of assemblies, including the use of water cannons, tear gas, fire extinguishers, electrical discharge weapons (tasers), iron clubs, batons and shields, to ensure that they are not applied indiscriminately and excessively or against peaceful protestors and that they do not result in an escalation of tension; 
(b) Adhere to international standards in order to ensure that law enforcement officials receive professional training on the use of force and firearms and deploy adequately trained and experienced police and law enforcement officers to manage assemblies; 
(c) Ensure instruction and methodical guidance for police on the need to respect the principles of necessity and proportionality during police interventions, on the absolute prohibition of torture and other State obligations under the Convention and on the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; 
(d) Provide information on the outcome of the investigations undertaken by the Prosecutor’s Office and the National Police Agency against seven police officers for violating the Act on the Performance of Duties by Police Officers in relation to the death of Mr. Baek and inform the Committee about the outcome of any judicial proceedings; 
(e) Investigate cases of excessive use of force against the families bereaved by the Sewol Ferry accident, prosecute those responsible and inform the Committee about the outcome of the proceedings; 
(f) Provide all victims of excessive use of force by law enforcement officials with access to medical services, counselling and redress, including rehabilitation and compensation.Committee against Torture, Concluding Observations on South Korea, UN doc. CAT/C/KOR/CO/3-5, 2017, para. 14.

Regional

There is no regional human rights court with jurisdiction to review police use of force in South Korea.

National

In June 2018, Amnesty International called for laws and regulations related to the policing of demonstrations to be "promptly amended to meet international law and standards". The call followed the decision of the Seoul District Court to only fine Shin Yoon-gyoon, the former chief of Seoul's fourth riot battalion, and two other South Korean police officers despite being convicted of neglect of duty in connection with the death of Baek Nam-gi, a farmer who sustained fatal injuries after being hit by a water cannon during a protest in 2015. Baek Nam-gi was struck unconscious by a police water cannon during anti-government protests in Seoul on 14 November 2015. He fell into a coma and eventually died from his injuries in hospital on 25 September 2016, aged 68. The way in which water cannons were used violated South Korean police guidelines being operated at too close a distance and at too high a strength and was aimed in a manner that struck the head of Baek Nam-gi. Video footage shows police continuing to direct the water cannon at his limp body as other protesters attempted to drag him away.

The Korean National Police Agency has since made the decision to adopt measures to better guarantee the right of peaceful assembly, as recommended by the country's Police Reform Committee, but the proposed changes have yet to be put into legislation.

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