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Unlawful martial law orders expose Korea's need for military neutrality reform

Published: 10 Apr. 2025, 00:04

Kim Hong-chul

The author is a visiting fellow at the National Future Strategy Institute, Seoul National University

The Constitutional Court’s decision to remove President Yoon Suk Yeol from office marked the legal and political collapse of the so-called Dec. 3 martial law. The court ruled the emergency decree unconstitutional and unlawful, 111 days after the decree was issued. During that period, some members of the military entered the National Assembly and the National Election Commission headquarters in an attempt to enforce the unconstitutional martial law order. More than 1,600 soldiers are believed to have been mobilized in these actions.

Soldiers passing by the entrace to the main building of the National Assembly in western Seoul on Wednesday, several hours after President Yoon Suk Yeol declared martial law. [JOONGANG ILBO]

That troops tasked with protecting the public instead carried out unlawful directives continues to stun many in Korean society. Several senior commanders, rather than questioning the legitimacy of the orders, relayed them to subordinates without objection, citing the chain of command. One general, now under indictment, justified his actions before the National Assembly by saying that defying the president’s martial law order would have amounted to a coup — an argument that drew criticism for its twisted logic.

The central question remains: Why did soldiers, whose duty is to safeguard the state, comply with what was clearly an unlawful decree? Following unconstitutional or illegal orders, particularly under arms, cannot be excused as part of military discipline. It risks crossing the line into insurrection or rebellion.

In "The Soldier and the State," the late Harvard professor Samuel Huntington argued that the military must remain separate from political systems and focus on maintaining its expertise in managing violence during wartime. He warned that political involvement by military leaders undermines professionalism and distorts military judgment to serve political interests. According to Huntington, soldiers are expected to follow commands related to national security regardless of personal beliefs — but must reject unlawful orders made for private or political gain. Doing so, he argued, is essential to preserving military neutrality.

Military forces mobilized under Martial Law attempt to get in the National Assembly to get inside the chamber on Wednesday in Yeouido, in western Seoul. [YONHAP]

The distinction between knowingly maintaining neutrality and doing so out of ignorance is critical. Without a clear understanding of what political neutrality entails, some may fall into the trap of blind obedience in both peacetime and wartime, assuming that orders must be followed under any circumstances.

How, then, can Korea prevent a recurrence of such constitutional violations?

First, the legal system must explicitly protect the rights of subordinates to refuse unconstitutional or unlawful commands. Existing laws prohibit issuing illegal orders, but they do not provide a procedural framework for rejecting them. In other words, while the principle is acknowledged, the mechanism is lacking.

Several lawmakers have introduced bills aimed at closing this legal gap. The National Assembly is reviewing the proposed legislation. Relevant ministries, particularly the Ministry of National Defense, should cooperate actively to ensure that the new laws reflect both operational realities and the need for legal safeguards.

Second, the military should implement regular training programs addressing political neutrality and responses to unconstitutional orders — similar to the sexual harassment prevention education that is now standard in the armed forces. In the early days of those programs, skepticism was common. However, after multiple high-profile sexual assault cases, attitudes changed significantly. Soldiers today show far greater awareness and understanding of such issues, thanks to continued education and clear consequences for violations, such as their impact on personnel evaluations.

Military officials attend a parliamentary defense committee meeting at the National Assembly in Yeouido, western Seoul, on Tuesday Dec. 10 to answer questions about the allegations surrounding the Dec. 3 martial law declaration. [YONHAP]

The same principles should apply to political neutrality. Without sustained education and a system of accountability, it will be difficult to build lasting awareness within the military ranks. Repeated training, combined with personnel management tools, can help embed these values institutionally.

Some argue that soldiers should not be permitted to disobey orders during combat, as the battlefield presents a unique set of urgent circumstances. But even in life-and-death situations, there must be systems in place that allow military personnel to reject unlawful or inhumane directives, such as those that violate international humanitarian law or the rules of armed conflict.

Germany offers a useful example. The country legally empowers its soldiers to refuse unlawful orders, ensuring that the principle is enforceable both in day-to-day operations and in the field. This system not only enables the rejection of unlawful commands but also encourages reflection among commanders and subordinates alike before acting on an order. The military culture is not one of automatic obedience but of considered responsibility.

Despite its democratic progress, Korea’s military — and broader society — still carries vestiges of authoritarian culture. Addressing this legacy requires a comprehensive framework to uphold the military’s political neutrality and provide clear, lawful responses to unconstitutional commands.

By institutionalizing these reforms, Korea can prevent future crises and build a more resilient civil-military relationship, one that aligns with constitutional principles and international norms.

Translated from the JoongAng Ilbo using generative AI and edited by Korea JoongAng Daily staff.