Under the current security environment of inter-Korean military confrontation, the role of the Korean military holds extreme importance compared to that of other countries and thus the constitution regarding the military carries great significance as well. The sub-section 2 of Article 5 of The Constitution of Korea states, "The Military's mission is to carry out the sacred duty of maintaining national security and defending the land." Moreover, Sub-section 1 of Article 74 grants the President the authority to command the military forces by stating, "The President commands the military according to what the Constitution and the Law grants." However, in spite of this regulation, the ROK government has only been able to exercise its constitutional rights of OPCOM (Operational Command) to a limited extent, which is the core of the command authority over its own military, since the outbreak of the Korean War in 1950.
At this point when public demand for the re-establishment of the ROK-US military alliance is gaining sway, it is both important and necessary to conduct a study of OPCOM from a constitutional viewpoint of the military system and its command authority.
The OPCOM of the ROK military was assigned to the CINCUNC (Commander-in-Chief, United Nations Command) on July 17th, 1950, during the Korean War, which was initiated by the illegitimate surprise attack of the North Korean communists. On November 17th, 1954, a year after armistice was established, the Agreed Minutes and Amendments between the Government of the Republic of Korea and United States of America] was concluded. Hence, OPCOM was modified to OPCON (Operational Control) and exercised until the establishment of the ROK-US CFC (Combined Forces Command) 28 years later. Ever since the establishment of the ROK-US CFC in November 7th, 1978, the Commander of the Combined Forces Command has held OPCON under the operational guidance and strategic directive of the Military Committee, which is guided by the NCMA (National Command and Military Authority) of both nations. 16 years later, on December 1st, 1994, aside from the CODA (Combined Delegated Authority) still to be held by the Commander of the ROK-US CFC, the Armistice OPCON was handed to the ROK Joint Chiefs of Staff. Consequently, it can be assessed that the current operational command authority is divided into two parts OPCOM in relation to the United Nations Forces, and OPCON based on the 『Mutual Defense Treaty between the Republic of Korea and the United States of America』.
Today, the Republic of Korea has made astounding economic progress, nurtured a democratic society and succeeded in promoting its national prestige in international society. As a result, Koreans have started to become aware of national pride. The inability to exercise operational command over its own military as a sovereign nation is beginning to be perceived as a disgrace to national pride. Such growing perceptions lead to demands for changes in the ROK-US alliance calling for an equal level relationship with the US instead of the US being a unilateral donor. It has also been argued by some that OPCON be transferred back to Korea in order to strengthen South Korea's negotiating power with North Korea, recover national pride in international society, and eliminate restraints to independent national defense operational planning suitable to the reality on the Korean peninsula.
Meanwhile, even though the Korean military authorities assert that, "the commander of ROK-US CFC only exercises OPCON over the ROK forces which have been assigned to ROK-US CFC, and does not directly command the Korean military", it is also true that command authority without Wartime OPCON is a limitation to the command authority which is one of the sovereign rights of an independent country. According to the Agreed Minutes and Amendments between the Government of the Republic of Korea and United States of America] the amendment of regulations concerning OPCON must be made with the agreement of both sides and cannot be done unilaterally.
In its Preamble, The Korean Constitution proclaims "to secure forever the safety, liberty, and happiness of ourselves and our descendants." The expression "Secure safety forever" which is stated in the Korean Constitution, our country's highest norm, implicates that the guarantee and maintenance of sovereignty is the foremost constitutional interest to protect. Accordingly, as stated above, it can be said that the practical inevitability of limitions to the independent exercise of OPCOM or OPCON, which are intrinsic to sovereign rights, for the sake of national security is for the constitutional interest.
The transfer of OPCOM or OPCON for the purpose of recovering sovereignty may be understandable from this point of view. Yet the OPCOM and OPCON issue must be approached from the more important perspective of national security. In other words, we must not forget the reality that OPCOM and OPCON are issues to be understood under the scope of the principle of people's sovereignty, which views national interest as equal to the people's interest.
Following the viewpoint that "national survival" is the priority, as a nation that is in need of military support from the United States, South Korea needs to rationally consider whether the realistic North Korean threat has been visibly and sufficiently reduced when discussing the issue of withdrawal of OPCOM from the Commander of UNC and Wartime OPCON from the Commander of ROK-US CFC. Furthermore, we must prevent a decrease in operation readiness posture by building the environment and conditions necessary to deter North Korea's aggression in advance, and defeat the enemy in the case of an armed attack.
From an economic perspective, South Korea cannot deny the advantages it has enjoyed thanks to the firm ROK-US Combined Defense System. By maintaining a strong ROK-US Combined Defense System, it was possible for South Korea to significantly save national defense expenditures and invest these funds in the economic development of the nation, and attract foreign investors by ensuring deterrence on the Korean Peninsula and thus achieve high economic growth and development.
Meanwhile, the unchecked expression of anti-American sentiment and demands for the reinstatement of OPCON as well as the withdrawal of USFK forces due to a number of recent unsavory occasions with no regard to threats against national security or survival is intentional negligence of the reality of international society, which is governed by the principles of power and political interests. Such actions may negatively impact the security on the Korean Peninsula and bring about a serious crisis for the safety and survival of our people.
Therefore, an immediate transfer of Wartime OPCON is undesirable. However, permanent continuation of the current combined operational command system is, considering the public opinion or international relations of South Korea, thought to be unreasonable as well. Thus, Korea must endeavor to minimize internal discontent and international problems by gradually shifting the leading role of the combined forces from the U.S. side to the ROK side, while keeping close watch on North Korea's military threat and visible changes.
Although it is hard to conclude when the exact time will be, it is necessary to continuously raise issues, make improvements, prepare comprehensively and minutely, and foster the appropriate conditions as preparation for the transfer of Wartime OPCON which will occur sometime in the future. Such preparations must be made not only in the domestic and military fields, but also in inter-Korean, ROK-US, international and U.N. relations as well as within ROK military.
In other words, the transfer of Wartime OPCON must be pursued by minimizing the damage to security through planning and actively carrying out plans for complementary measures of relevant agreements as a legal basis, development of the future ROK-U.S alliance, the development of the ROK-US combined operational system, strengthening of the ROK military's war fighting capability, and the enlargement of the functions and roles of the ROK Joint Chiefs of Staff, reestablishment of the ROK-US military relationship guaranteeing U.S. support in critical situations and the establishment of a multilateral security cooperation system.
Here are a few opinions on directions for the reorganization of the operational command system as a part of the preparation.
Prior to unification, it is desirable to develop a system which is commanded by a ROK commander, taking into account the NATO·German combined operations system. This must be conducted with primary focus on the force enhancement of the ROK military, especially in the battlefield functions such as intelligence and C4I, and considering the visible changes to the military threat, confidence building measures between South and North Korea, and arms control. To achieve such a system, I believe it is necessary to develop the system so that the ROK side will be able to command ground operations, of which the ROK army is the main force. Currently, although a Korean General is appointed as the Commander of the GCC (Ground Component Command), subordinate staffs are of a poor scale, thus limiting its ability. If the subordinate staffs are to be fully reorganized to become a group that plans and executes operations, it would be a significant step towards "Korean defense lead by the Korean Military."
For the next step, as the North Korean military threat declines, and some actual and visible improvements show in confidence building and arms control, the ROK-US forces should develop independent OPCON systems. And as preparation for crisis situations, operating a down-scaled version of the current ROK-US CFC in the form of a Wartime Operation Planning Coordination Group (WOPCG) to maintain a close tie of military coordination would seem desirable. Therefore this period would be most desirable for the transfer of Wartime OPCON.
When unification is achieved, and the mission and role of the USFK changes from 'the security of the Korean Peninsula' to 'the security of Northeast Asia', it will be desirable for Korea and the U.S. to establish a fully independent combined defense system as that between the U.S. and Japan, where each country exercises independent operational command of its own forces.
When pursuing the transfer of Wartime OPCON a 'condition and time oriented approach' will be the best way where the ROK and U.S. would set a tentative target date. The achievement of the pre-set conditions will be confirmed on the target date with consideration of the security situation at that time. The decision to restore OPCON and the final transfer date will then be decided. Thus contingency situations along the way can be addressed.
Especially, it will not be wise for a sovereign nation and a member of the international community pursuing globalization and the transfer of Operational Command to make room for legal criticism by following the steps of former President Rhee, Seung Man's 「Assigning Exchange of Note」 to General MacArthur which was controversial in its legitimate procedure and effective force. Therefore, prior study and preparation into the legal aspects of the transfer of Wartime OPCON is important and necessary.
In such importance,
First, in relation to former President Rhee' s 「Assigning Exchange of Note」, even if Wartime OPCON is transferred back from the ROK-US CFC, I believe that it is desirable to maintain the effect of the 「Assigning Exchange of Note」, for the purpose of maintaining the Armistice Agreement until North Korea's military threat has visibly decreased, inter-Korean hostilities have ceased, and a peace treaty has been established.
Second, on the matter of the Armistice Agreement,
The largest legal problem in the transfer of Wartime OPCON from ROK-US CFC to the ROK military is the validity of the Armistice Agreement. In relation to the maintenance of the Armistice Agreement, the following three conditions must be fully considered in building measures to handle how to establish the legal relationship between the United Nations Command and the newly established combined defense system. 1) When only Wartime OPCON is retrieved from the ROK-US CFC. 2) When the operational command handed over by the "Assigning Exchange of Note" is retrieved with the exception of parts related to the maintenance and management of the Armistice Agreement, along with the operational control of the ROK-US CFC. 3) When the UNC is dissolved.
Third, on the matter concerning the 「Mutual Defense Treaty between Korea and the U.S.」,
When OPCOM is retrieved, a plan to assure deterrence and minimize the possibility of a weakening readiness posture in times of crisis is required. To ensure this, we must seek ways to supplement the 「Mutual Defense Treaty between Korea and the U.S.」 to guarantee the automatic intervention by the United States and the rapid support of U.S. reinforcement troops.
Fourth, on the issue of the 「Agreed Minutes and Amendments between the Government of the Republic of Korea and the United States of America」,
If the ROK-US CFC is to transfer Wartime OPCON back to the ROK military, section 2 of the 「Agreed Minutes and Amendments between the Government of the Republic of Korea and the United States of America」 must be changed to "The United Nations Command will only carry out missions concerning the maintenance of the Armistice Agreement", due to the occurred 'change of right to exercise OPCON.'
If OPCOM of the UNC over ROK forces is to be transferred as well, then section 2 of the 「Agreed Minutes and Amendments between the Government of the Republic of Korea and the United States of America」 must be deleted.
Fifth, on the problem of the United Nations Command,
As mentioned above, the maintenance of the Armistice Agreement will encounter a difficult situation if the United Nations Command is to be dissolved. Therefore, a "device to manage the military crisis on the Korean Peninsula" that will replace the current Armistice Agreement is necessary.
Some other ways can be the conclusion of a 「Peace Treaty」 or the maintenance of the Armistice Agreement by employing the 「South-North Joint Military Commission」 agreed upon in Chapter 2, Article 12 of the 1992 「Agreement on Reconciliation, Non-aggression and Exchanges and Cooperation between the South and the North」.
Yet, considering North Korea's persistent request for a 「peace treaty with the U.S.」, a 「South-North Peace Treaty」 would be undesirable because it would only be giving in to the North's attempts to withdraw the USFK(United States Forces Korea) from the Korean Peninsula. Therefore, it is necessary to maintain the UNC to preserve the Armistice Agreement, which acts as a military crisis management device until North Korea's military threat is greatly alleviated.
Managing a 「South-North Joint Military Commission」 is also an unrealistic plan, since the agreement was concluded about 10 years ago and has still not been put into action because of the North's responsibility evasions.
Considering the U.S. perspective of ever-growing anti-American sentiments in Korea, despite the remarkable positive effects from the U.S. led ROK-US Combined Defense System, it can be anticipated that the "Self-reliant Defense of Korea" will rise as a pending issue whether we like it or not, and thus, the transfer of Wartime OPCON will become a subject of great interest as well.
The transfer of Wartime OPCON basically means that, "the ROK Military is responsible for the defense of Korea." Therefore this is an issue to be thoroughly examined considering the conflicting fact that military support by the U.S. is indispensable, while it is also necessary for a sovereign nation to keep its pride and national prestige. At present, when the North Korean threat exists and it is still impossible to predict when such a threat will disappear, we must refrain from rash actions to persistently call for a shift to an independent defense system by unconditionally transferring OPCOM or OPCON.
The objective for the transfer of Wartime OPCON therefore, must not be the "transfer" itself. Instead, the goal should lie in the effort to find an answer that will maintain a ROK-US Alliance while pursuing further developments, guarantee national sovereignty and pride while deterring North Korea's military threat and maintaining a readiness posture capable. of defeating the enemy in time of crisis.
Even if Wartime OPCON is transferred, if such a transfer is to weaken our war deterrence ability and wartime defense capabilities, we must consider the question of "how can we construct a system that effectively receives U.S. military support?" in order to prevent the possibility of North Korea making a misjudgment. Furthermore, in constructing a new ROK-US combined defense system, countries such as Germany, other NATO member nations, and Japan, which maintain their pride as sovereign nations and protect their security by maintaining a combined or cooperative system with the United States will serve as good references.
Considering that the transfer of OPCOM and OPCON of the ROK forces to a third party has been a decisive measure in maintaining peace on the Korean Peninsula for over 50 years, the development of conditions, preliminary inspections and planning, and complete preparation must be fulfilled in the process of carrying out the transfer of Wartime OPCON.