On December 3, 2024, President Yoon Suk Yeol of the Republic of Korea declared martial law, citing the need to address threats to the state posed by North Korea's hostility and the “pro-North Korean” or “anti-state activity” of domestic politicians and journalists. 

This action was criticized by a minister from the previous government, who referred to it in personal communications as a “declaration of war against the people of Korea.” Speaking in a private exchange, a South Korean security official claimed that the president’s decision was merely an attempt to “overcome domestic political challenges.” 

According to numerous former government officials interviewed for this article, the declaration of martial law was also intended to suppress publicity about the criminal and unpopular aspects of the president's and his wife's conduct. 

Surprisingly Legal?

According to Article 77 of the South Korean Constitution, the president is authorized to declare martial law in cases of war, armed conflict, or severe national emergencies that threaten the nation's or its people's safety. While the closure of parliament may have crossed the line of legality, the core issue in this controversy is that the president had the constitutional right to declare martial law if he believed a threat existed, even one that needed to remain undisclosed. 

This raises the concern that similar actions could occur not only in South Korea but also in other democracies with similar security and secrecy legislation. However, the events in South Korea challenge the fundamental principles of democracy and highlight misunderstandings that make a defense of democracy using security measures dangerous for democracy. 

This article will explore three key misunderstandings underlying the South Korean martial law controversy. 

First, there is a lack of clear differentiation in political practice between individuals and political programs or preferences. Legal instruments are often used to suppress political programs with popular support, even though only individuals should be held legally accountable. By designating several opposition figures as “anti-state forces,” President Yoon sought to combat political opposition political programs and preferences through legal means, following the defeat of his political program in the recent parliamentary elections. 

The use of legal mechanisms to target political parties and programs is not uncommon today. For example, President Donald Trump’s first term was marred by efforts to employ security laws to hinder the implementation of the political agenda chosen by the American electorate in the 2016 presidential elections. The problem with conflating individuals and political programs is that prosecuting individuals to suppress specific political agendas can undermine democratic governance. 

Second, there is confusion between political programs and preferences, on the one hand, and the means used to promote them, on the other. While it is legitimate for a state to use security measures, including martial law, against violent or illegal methods of political competition, declaring certain political preferences or programs as treasonous undermines the foundations of democracy. 

For example, the policy of reproachment with North Korea, advocated by the previous government and the president’s main rival in the last elections, was labeled as anti-state activity, despite no evidence that members of the previous administration employed illegal means to promote dialogue with the North. 

According to a senior member of the former government, “President Yoon has continuously imposed judicial pressure and persecution on former President Moon Jae-in, his family, and his aides,” who had been involved in policies of détente with the North. This misuse of security measures to control political programs inverts the democratic relationship between the people and the state. Democracy is founded on the principle that the political preferences of the people govern the state, not the other way around. 

This Issue is Not Unique to South Korea 

Studies indicate that conflating means of politics, which the state should monitor, with political preferences, which should guide the state, originated in the U.S. policy in Afghanistan and Iraq in 2003 and 2004. This is where computer-assisted textual analysis first reveals the association between political programs and security, and when concepts like “ideology of murder” emerged in political discourse. 

At that time, President George W. Bush sought to prevent the resurgence of the Taliban and Saddam Hussein's supporters. An argument emerged suggesting that the political programs and preferences of the Taliban and Saddamist factions were the root causes of terrorism, rather than the methods of political competition that define terrorism, such as targeting civilians. 

Once political ideologies and preferences were framed as security threats in Iraq and Afghanistan, this logic became difficult to contain, spreading to the U.S. and other democracies. U.S. intelligence agencies were soon implicated in illegal surveillance methods aimed at combating “radicalization,” defined as certain political preferences. Ultimately, even rhetoric sympathetic to grievances over changes to mail-in voting during the 2020 presidential election was equated with complicity in the January 6, 2021, Capitol riots. 

While law enforcement must address violent riots, democratic societies should not prosecute individuals for their opinions or political preferences. 

Finally, most democracies have well-defined rules to protect the state from the abuse of democratic freedoms against the state, but they often lack robust safeguards against the state’s misuse of security measures to target political rivals. It is a misconception that states require one but not the other. 

In South Korea, the president has faced accusations for his declaration of martial law. However, his right to do so is explicitly codified in the Constitution. Instead of pursuing constitutional reforms, lawmakers have focused on the specifics of the six-hour martial law declaration. As a result, the legal framework remains inadequate to prevent future abuses of security measures that can be weaponized in power struggles to threaten democracy. 

Should there not be clearer guidelines on when and how martial law can be declared? Should rules be established to determine what can be classified as secret? When martial law is invoked to rescue a political party or program with less than twenty percent popular support, as was the case in South Korea, and when individuals face prosecution for exposing corruption or pursuing a popular political program, security measures are misused to undermine democracy itself. 

South Korea, along with the U.S. and Europe, must enact laws that define and control the use of security measures that could pose a threat to democratic governance. 

Timo Kivimäki is a professor of international relations at the University of Bath, United Kingdom.

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