Today, national security-threatening factors have become more diverse. In the past, invasion by a foreign military force or rebellion by an internal enemy was a major threat. With changes in international environments, the factors threatening national security such as international terrorism are now being greatly varied.
With the end of the Cold War caused by the fall of communism which started from the late 1980s, international security environments have rapidly changed. The importance of the conventional military power-centered national security whose primary goal is to protect home country from a foreign enemy has diminished. Instead, a concept of ‘total security’ has emerged. In addition to the formation of the United Nations, ‘collective security’ which sees war as an illegal act has become more common. As a result, a risk of being invaded by a foreign country has considerably decreased. Even so, threats to national security in an international society have been more diverse. For example, religious and ethnic conflicts have been more serious. In terms of national security-threating factors, diverse patterns such as terror and cyber terror as well as war have occurred.
National security environments have greatly changed domestically and internationally, but Korea’s national security laws have long been kept relatively intact since the establishment of Korean government. After all, they are still under the influence of the laws of the Cold War era. The laws enacted in the beginning of the Cold War era have lasted without major modifications. In other words, they do not properly reflect new international environments such as the collapse of alliance, increase in the risk of terror (or cyber terror) attacks and changes in the scope of confidentiality. The Anti-terrorism Act which has long been discussed was finally enacted in 2016, partially reflecting new environments. However, national security-related laws are still unable to properly cover new national security environments. In current national security-related laws, Criminal Act and National Security Act were enacted when Korea was about to enter a war, and when it was at war. The primary goal of these laws is to protect home country from an anti-state organization or foreign enemy, considering a possibility of war. Under the two laws, the scope of national security-threatening organizations or countries is too narrow. In fact, they do not properly reflect today’s circumstances in which there is no eternal enemy, nor an eternal friend, and terrorist groups are a primary threat to citizens’ safety and national security.
In these national security-related laws whose ground was established during the Cold War era, the scope of national security has been a threat to the existence of country. In addition, they have a lot of loopholes from a current viewpoint which focuses on national prosperity by protecting industrial secrets. National security-related laws were enacted in consideration of war under the concept of ‘collective security’ by dividing countries into allies and enemies so that there is a big gap between their ideal and reality considering the details and targets of national security. Under these laws, the subjects of national security are hostile countries. In other words, we are fragile to the countries or groups which can still be a great threat to our national security even though they are not the enemies at the moment.
The U.S., Korea’s long allied nation, has also been very resolute in punishing those who have disclosed its national secret to Korea under ‘crime of espionage.’ In fact, all countries around the world have punished those who have leaked its national secret to a foreign country. This kind of measure is further important under current circumstances in which the protection of industrial technology is crucial. Under current laws, however, the Republic of Korea is not able to punish those who steal or leak important information for a foreign country such as the U.S., China and Japan under the crime of espionage.
To solve this kind of loophole, it is needed to delete enemy-related clauses and those which stipulate the protection of allies in the crime of espionage. There also is a necessity to review what kind of information should be categorized as a national secret. According to Korea’s Criminal Law, the subjects and acts of espionage are limited to the ‘detection & collection and leak of national secret.’ In a modern information society, however, the range of the national secrets has further widened. The government may even have to protect other secrets that individuals and companies hold such as industrial secrets and business secrets if necessary. For the purpose of reinforcing national competitiveness, it is time to further widen the scope of secrets which have been limited to the army and national security only.
Regarding national security-related investigation, exceptions should be admitted. National security crime differs from other crimes. The former occurs very rarely, but once it happens, it could a serious threat to the existence of country. Hence, prevention is far more important than follow-up measures. In this sense, there is a high necessity to get information and prevent a crime in advance. Therefore, it is needed to admit exceptions on information collection. Regarding national security criminals such as terrorists, furthermore, there is a necessity to review if there should be an exception on custody or their attorney’s Right of Interview and Communication. Considering the ripple effects of these national security crimes, some people have insisted that a certain level of violation of human right is necessary to avoid a bigger sacrifice. In fact, the U.S. and European countries have accepted exemptions on national security criminals such as detention and restrictions on their attorney’s Right of Interview and Communication. Even so, it is impossible to infringe the fundamental aspects of human right. After all, it is important to find a compromise between the protection of human rights and common interest. Since it is still very hard to be done, there should be continued efforts to seek for the best solution even though these exemptions are accepted.
In addition, it would be a good idea to introduce an online investigation system. For this, it is needed to review a possibility of collecting too much information and any violation of human rights. Under the online investigation, information can be leaked out even without the information owners’ knowledge. Therefore, the information collection and management should be strictly controlled. These exemptions should be accepted for national security, but the efforts to prevent any abuse or misuse of them with severe punishments need to follow.