2024 Martial Law in South Korea — The Crossroads Between Democratic Regression or Proof of Strong Democracy

Jeong-In Yun

Korea University

On December 3, 2024, around 10:28 pm, South Korean President Yoon Suk Yeol declared emergency martial law in a sudden TV address. The declaration of martial law, the first since the country's democratization in 1987, came as an unreal shock to South Korean society, which had experienced martial law more than 10 times under authoritarian regimes and military dictatorships in the past. Moreover, such an abrupt action by South Korea’s commander-in-chief raised grave concerns in the Korean people since most believed that civilian control was firmly entrenched by dissolving the private circle within the military that was the backbone of past military coups.

Background

Article 77 of the Constitution of the Republic of Korea (South Korean Constitution) grants the President power to declare martial law “when it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency”.

Martial law is classified into emergency martial law and guarding martial law. The former refers to a special emergency power given to the President to mobilize the armed forces to temporarily take over the functions of some state institutions, only declared in emergencies “when there are belligerency or serious disturbances of social order that considerably impede the performance of the administrative and judicial functions of the State in time of war” (Martial Law Act, Art 2 para 2). The declaration of emergency martial law justifies “special measures” concerning the writ system “freedom of speech, the press, assembly, and association, or the powers of the Executive and the Judiciary” (Constitution, Art 77 para 3), which allows for highly exceptional situations in which the fundamental rights of citizens can be broadly restricted to maintain order in a time of extraordinary national crisis. Thus, the South Korean Constitution requires the President to notify the National Assembly without delay when declaring martial law (Art 77 para 4) and it should be lifted by the President when the National Assembly, by its majority vote, requests it be lifted (Art 77 para 5). In other words, the power to declare martial law rests with the President and the decision to lift martial law rests with the National Assembly.

The last time martial law became controversial was due to revelations that there was a plan to declare martial law during former President Park Geun-hye's impeachment trial in 2017. The document outlining the plan to declare martial law to calm the unrest in the event of the rejection of the impeachment horrified the public, but fortunately was never implemented.

The Current Crisis

Then, the keyword ‘martial law’ re-emerged in public discussion during the confirmation hearings for Defense Minister Kim Yong-hyun in September 2024. The appointment of Kim, a former head of the presidential guard, as Defense Minister prompted lawmakers to question whether Yun was preparing for martial law. These suspicions were grounded in the fact that President Yoon was filling key military posts with his high school alumni. Kim vehemently denied the martial law plan, claiming it was ‘false propaganda’.  His clear response reassured the citizens. Three months later, however, he became a key figure in the declaration of martial law alongside the President.  

The first question, then, would be why President Yoon declared martial law in the middle of the night on a weekday, completely out of the blue, since there were no indications regarding “war, armed conflict, or similar national emergencies” as required by the Constitution. The background to the unexpected declaration of martial law is found in the President's speech on the night of December 3. Since the opposition won a landslide victory in the April 2024 general election, the government and the National Assembly have been in a political stalemate. In addition, the President and his wife have been criticised for being involved in several corruption scandals, and their refusal to accept special investigations has eroded their popularity. In response, the opposition parties have called for the impeachment of the Auditor General and several prosecutors for failing to investigate the President's office and the First Lady.

Against this backdrop, on the night of December 3, President Yoon declared martial law in a televised address claiming that the National Assembly was attempting to overthrow the liberal democratic system by putting too much pressure on the government, and that it was necessary to declare martial law in order to “crack down” on anti-state forces colluding with North Korea and “normalize the country”. The address was soon followed by the Martial Law Command Proclamation No. 1, which stated that martial law would be enforced nationwide from 11 pm. The proclamation prohibited the activities of the National Assembly, local councils, and political parties; citizens from engaging in any political activities (sec 1); and put all media and publications under the control of martial law authorities (sec 3). These prohibitions are reminiscent of the emergency and martial law measures that had terrorised the people during South Korea’s authoritarian past.

The declaration of martial law shocked the whole country. But, surprisingly, Members of Parliament and citizens quickly made their way to the National Assembly at midnight. Their immediate reaction was based on the belief that the only way to remove martial law was for a majority of the National Assembly to pass a resolution calling for it to be lifted, and that this would work. Thousands of citizens gathered in front of the Assembly while the security forces began to control access to it. Nevertheless, with the resistance and help of citizens, the Members of Parliament entered the precincts of the National Assembly and some ­— including the Speaker — managed to climb over the fence and reach the plenary chamber of the National Assembly. The whole process was broadcast live by reporters on the spot. Citizens on the streets near the National Assembly and at home anxiously watched the process until a majority of parliamentarians gathered.

Martial law forces, including the Special Task Force, landed on the green of the precinct of the National Assembly in Blackhawk helicopters around 11:48 pm. Thousands of citizens surrounded the National Assembly, slowing down the soldiers from entering the building. Additionally, parliamentary staff and aides barricaded all the entrances and windows of the building and collectively blocked their entry. At 00:34 am on December 4, Martial law forces began entering by breaking the glass on the second floor of the National Assembly building. At the same time, the Speaker of the National Assembly patiently and duly led the voting process. At 00:35 am, he took the chair in the plenary chamber, and at 00:47 am, the plenary session was called to order. At 1 am, the resolution calling for the lifting of martial law was put to the vote, and at 1:02 am, it was passed by all 190 members present. The Speaker requested the President and the Ministry of Defense to lift martial law via official letter and through a public statement. Upon this, according to the Constitution and the Martial Law Act, the President must lift martial law without delay. However, there was no response so, at 4 am, the Speaker again requested the lifting of martial law. President Yoon announced his will to lift martial law in a televised address to the nation around 4:27 am and, immediately after convened a cabinet meeting—after which, the lift of martial law was confirmed. Martial law was ended within hours, through the desperate efforts of parliament members and citizens.

Was there a constitutional and legal basis to declare martial law?

From the outset, legal questions about the President's declaration of emergency martial law began to be raised. Was the declaration of martial law legal and constitutional? It was procedurally, formally, purposively, and substantively illegal and unconstitutional. There was no situation of extreme social disorder such as a state of war; the President did not notify the National Assembly after the declaration of martial law; the form of martial law decree was flawed. But most importantly, the declaration sought to block the activities of the National Assembly, which should not be restricted even during martial law. It was obvious President Yoon wanted to prevent the National Assembly from voting to lift it and thus perpetuate the martial law situation.

If so, what legal liability should be imposed for these unconstitutional acts? The current discussion is unfolding in two directions. One is whether it constitutes insurrection. The Criminal Act of South Korea defines insurrection as acts raising a riot to overthrow government organs established by the Constitution or to make render the exercise of their functions impossible by force (Arts 87 and 91) and punishes the crime stringently with a maximum penalty of death. The Constitution excludes the President's criminal immunity from prosecution in cases of insurrection or treason (Art 84). The prosecutor’s office and police (National Office of Investigation) have initiated investigations against the President, as well as the Defense Minister, martial law commander, police chief and others involved in the declaration and implementation of martial law. Most law professors and academic associations are in near agreement that the declaration of martial law constitutes an insurrection or self-coup.

The other question is whether the President’s acts would justifyan impeachment. The impeachment process is already underway. According to the Constitution, high public officials including the President can be impeached when violating the Constitution or other Acts in the performance of official duties (Art 65). When the majority of members of the National Assembly propose an impeachment bill and it is approved by two-thirds or more of the total members (Art 65 para 2), the impeached person shall be suspended from exercising his/her power immediately (Art 65 para 3) and the impeachment trial begins at the Constitutional Court. On December 4 at 2:30 pm, an impeachment bill was proposed and its vote is planned for December 7. As of writing (December 6), many citizens have been attending rallies calling for impeachment, and polls show that more than 70% of citizens are in favour of impeachment. However, some are still concerned about the possibility of a second round of martial law as the President is strongly against current developments, including the impeachment proceedings. There is division and confusion within the ruling party.

Conclusion

It is clear that this first declaration of martial law since democratization is a grave challenge to South Korea's democracy and the rule of law, and touches on decades-old traumas for the South Korean people. However, the citizens who ran into the National Assembly as soon as martial law was declared showed that there are democratic citizens who are fearless of power. The swift and lawful response of the National Assembly to the unexpected crisis was also promising in terms of the rule of law and constitutionalism. Public law scholars are preparing a group statement to call for the impeachment of President Yoon. South Korea's democracy will prove itself depending on how the current crisis, which is far from over, is overcome.

Postscript as at 10 December 2024: This post was published on 6 December, and events in South Korea continue to evolve. On 7 December, an impeachment vote was held, and President Yoon survived that vote. Updated English-language of the unfolding democratic crisis can be found at this dedicated page on the Dem-Dec website.

Jeong-In Yun is a Research Professor at Korea University.

Suggested citation: Jeong-In Yun, ‘2024 Martial Law in South Korea — The Crossroads Between Democratic Regression or Proof of Strong Democracy’ IACL-AIDC Blog (6 December 2024).