The International Human Rights Framework on the Right of Peaceful Assembly
South Korea is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
South Korea is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
There is not yet a regional human rights treaty to which South Korea can adhere.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 21(1) of the 1948 Constitution of the Republic of Korea (South Korea), as amended, all citizens shall enjoy freedom of assembly and association.
Article 37 of the Constitution provides that rights may only be restricted when necessary for national security, the maintenance of law and order or for public welfare. Further, it states that restrictions may not infringe on any essential aspect of the freedom or right.
The Assemblies and Demonstrations Act prohibits authorities from requiring that peaceful assemblies be previously authorised. It does, however, require assembly organisers to submit a report notifying authorities of details of the proposed assembly in advance.Art. 6(1), Assemblies and Demonstrations Act.Article 1 of the Assemblies and Demonstrations Act aims to guarantee ‘the freedom of lawful assemblies and demonstrations (emphasis added) and [protect] citizens from unlawful demonstrations’.
The Korean National Police Agency (KNPA) informed the UN Special Rapporteur on freedom of assembly in 2016 that lawful assemblies are those that do not contravene the national laws of South Korea, such as non-violent assemblies and those that do not disrupt traffic. Assemblies that are not notified are unlawful, as are spontaneous assemblies. The police noted that a lawful assembly may turn into an unlawful assembly, for example when it is judged to have become violent. Assemblies deemed unlawful may be banned and/or forcefully dispersed, with participants facing possible investigation and prosecution.
Article 8 (1) of the ADA permits authorities to ban assemblies that do not comply with a list of requirements.Arts. 5(1), 10, 11, and 12, Assemblies and Demonstrations Act.In practice, the UN Special Rapporteur asserted that use of these provisions affords broad discretion to authorities to allow or restrict the holding of assemblies, and in effect, amounts to an "authorisation" of assemblies as opposed to notification. Police reportedly exercise wide discretion in determining when to issue a ban on an assembly.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
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.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The 2017 Act on the Performance of Duties by Police Officers 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.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2017 Concluding Observations on South Korea, the Committee against torture addressed in detail the right of peaceful assembly. 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;
(e) Reports that some suspects are handcuffed during interrogation, despite the ruling of the Constitutional Court that such practice is unconstitutional...
The Committee called on the authorities 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.
In the context of its 2017 Universal Periodic Review under the UN Human Rights Council, South Korea stated that:
In 2017, a committee on police reform had been established to ensure a greater human rights-based approach in the work of the police. For example, the committee had recommended excluding the use of water cannons and bus barricades by police in demonstrations. Regarding the case of Baek Nam-gi, who had died as a result of the use of water cannon by the police during a demonstration, the delegation reported that four persons had been prosecuted for the death after the completion of the investigation.
Previously, in its 2015 Concluding Observations on South Korea, the Human Rights Committee had also addressed the right of peaceful assembly. The Committee was concerned 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....
It 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 also called for review of its regulations on the use of force and ensure that they are in compliance with the Covenant, and to train its police officials accordingly.
Views of Civil Society
According to Freedom House's 2019 report on South Korea:
The government generally respects freedom of assembly, which is protected under the constitution. However, several legal provisions conflict with this guarantee, sometimes creating tension between the police and protesters over the application of the law.
Beginning in May 2018, a series of mass protests were organized to demand a stronger government response to the phenomenon of illegal hidden cameras targeting women, especially in public restrooms, with the resulting images often posted online. In September, the first LGBT festival ever held in Incheon was met by a group of some 1,000 counterprotesters. Police arrested eight of the anti-LGBT demonstrators. In the second half of the year, large weekend protests took place in downtown Seoul, with tens of thousands of people gathering peacefully to air views on a range of issues, including support for Park Geun-hye’s release, opposition to Moon’s policy toward North Korea, and demands for stronger labor protections. In November, an estimated 160,000 workers led by the Korean Confederation of Trade Unions held a half-day strike across the country, accusing the government of taking steps to roll back policies that favored labor.
In September 2017, Amnesty International welcomed the decision by the Korean National Police Agency [KNPA] to adopt measures to better guarantee the right to freedom of peaceful assembly, as recommended by the Police Reform Committee.
“The decision to change the overall approach of policing assemblies from ‘management and response’ to ‘guaranteeing the freedom of peaceful assembly’ is an important step forward. It is a change Amnesty International has long been calling for.
“The proposed stricter controls over the dispersal of assemblies, and especially over the use of water cannons and bus barricades will also help to minimize unnecessary or excessive use of police force, while facilitating demonstrations within the sight and sound of their intended targets.
“While the recommended measures are comprehensive, the authorities still need to lift the blanket ban on outdoor assemblies taking place at specific times and places. In addition, the adopted measures need to be firmly enshrined in law. The Assembly and Demonstration Act and other relevant legislation must be comprehensively revised in order to bring the rules on policing public assemblies, as well as the use of force in general, into line with international human rights law and standards.