A court has ruled it unlawful to suspend a military officer for having attempted to carry out a superior's illegal orders during the Dec. 3 martial law declaration. Passively complying with an illegal order cannot be judged as abandoning one's duty as a soldier, the court said.
The Seoul Administrative Court's 14th Division, presided over by Chief Judge Lee Sang-deok, ruled on the 17th in favor of Yoo Jae-won, a colonel and former head of the second office in the first directorate of the Defense Counterintelligence Command, in a suit seeking to overturn a disciplinary action taken by the Minister of National Defense.
After martial law was declared, Yoo received orders from a superior to deploy to the National Election Commission and to the polling firm Flower Research, hand over their servers to the National Intelligence Service and seize the servers if necessary.
Yoo and other unit heads objected, saying they had no investigative authority and that taking the servers could create problems, and that legal review was needed. After subordinate section chiefs pointed out that the order was illegal, Yoo halted personnel assignments and deployment preparations and stood by.
After the National Assembly passed a resolution demanding that martial law be lifted, a superior again ordered Yoo to deploy but to stay at a distance without entering the facilities. Yoo judged that defying the order could cause problems but did not order subordinates to deploy. Yoo then replied that he would not cross the Han River, waited at the south end of Jamsu Bridge and returned to base.
The Ministry of National Defense later sought disciplinary action, citing a breach of the duty of diligence and arguing that Yoo had deployed to carry out an illegal order even after the National Assembly demanded that martial law be lifted. A disciplinary committee ultimately decided on a two-month suspension, and the ministry imposed the penalty. Yoo challenged it in an administrative suit.
The court sided with Yoo. While the superior's order was indeed illegal, the panel said it was difficult to conclude that Yoo had deployed with the purpose of carrying it out.
"Controlling the Flower Research site and securing and removing the servers would have required a large number of personnel," the panel said. "Had he genuinely intended to carry out his superior's instructions, he would have quickly organized the available troops under his command and sent them all out."
The panel also cited the fact that Yoo stalled as long as possible without deploying despite receiving the order, and that he objected after the initial order by saying legal review was needed.
"It may be said that firmly refusing a superior's illegal order during martial law is the ideal posture for a soldier," the panel said, "but in practice it is difficult to expect every soldier to defy orders at personal risk."
"Even if one cannot refuse an illegal order outright, one can fail to properly cooperate with it by delaying its execution or by preventing subordinates from taking part," the panel said. Conduct should not be judged as carrying out an illegal order by isolating part of it without examining the overall circumstances, purpose and outcome, it added.
