Rising calls for the amendment of South Korea’s espionage laws have been fueled by the recent arrest of a military official, A, accused of leaking classified information to a Korean-Chinese, highlighting the limitations of current legislation, which only applies espionage charges to those with proven connections to North Korea.
Currently, A is charged with the offense of leaking classified military information rather than the more severe crime of espionage.
This is because, under the Military Criminal Act, in order for espionage charges to be applied, there must be a proven connection to an enemy state, specifically North Korea. In this case, such a connection has not yet been established.
In contrast, other countries prosecute the leaking of state secrets to even an allied nation under espionage charges.
South Korea’s espionage provisions are stipulated in the Military Criminal Act, Criminal Law, and the National Security Law.
All three laws apply espionage charges only if state secrets are leaked to North Korea or an enemy state. These laws were enacted during the Cold War era of the 1950s and 1960s and have seen little change since.
Due to these reasons, politicians and legal experts argue that the Cold War has ended, and state and military secrets can now be leaked to allied nations as well. They also suggest expanding the scope of espionage charges from ‘enemy states’ or ‘anti-state organizations’ to ‘foreign countries.’
The Military Criminal Act, established in 1962, punishes those who act as spies for the enemy, assist enemy spies, or leak military secrets to the enemy under espionage charges. In this context, ‘enemy’ is interpreted to mean North Korea. Consequently, espionage charges cannot be applied if the information leak involves a country other than North Korea.
For example, in 2018, the Seoul Central District Prosecutors’ Office indicted a Defense Intelligence Command team leader named Hwang for passing second and third-class military secrets, as well as information about white agents, to China and Japan.
However, Hwang could not be charged with espionage under the Military Criminal Act and was instead charged with undermining South Korea’s military interests. The investigation team noted that the limitation of espionage charges to ‘connections with North Korea’ under the Military Criminal Act was the reason. Eventually, Hwang was sentenced to four years in prison and has since been released.
Provisions related to espionage are also found in the Criminal Act and the National Security Act. The Criminal Act, enacted in 1953, the year the Korean War ended, defines espionage as actions taken on behalf of enemy states, assisting enemy spies, or leaking military secrets to enemy states, and these provisions have remained unchanged since their enactment.
Legal experts in South Korea also argue for the need to amend the law.
Yang Jung-jin, a former public security prosecutor, stated that South Korea does not recognize North Korea as a state, and the term ‘enemy state’ in the Criminal Act refers to a foreign country or foreign organization engaged in war with South Korea. Therefore, ‘enemy state’ is a concept that has become obsolete after the end of the Cold War.
In response, the National Security Act was revised in 1960, creating definitions for anti-state organizations (North Korea) and provisions for punishing the leakage of state and military secrets to such organizations.
These provisions include a clause addressing actions taken to further the objectives of anti-state organizations, similar to those in the Criminal Act. With this amendment, defendants in major espionage cases, such as the Ilsimhoe Spy Case in 2006 and the Wangjaesan case in 2011, were convicted under the National Security Act’s provisions for actions taken in furtherance of such organizations’ objectives.
Legal experts in S. Korea criticized the current espionage punishment system, stating that proving espionage is very difficult because it can only be punished if there is a connection to a non-existent ‘enemy state’ or North Korea.
This means that, in the current legal framework, espionage charges are limited to scenarios involving countries or entities that South Korea is officially at war with, which is not applicable in today’s geopolitical context.
With similar concerns, both ruling and opposition parties have recognized this issue and have proposed amendments to the Criminal Act to expand the term ‘enemy state’ to ‘foreign country’ since 2004, but these proposals have repeatedly failed to pass in the National Assembly.
