Courts agree on Yoon's guilt in declaring martial law, diverge on date of intent

Two courts that tried former President Yoon Suk Yeol on separate insurrection charges have reached conflicting conclusions about when exactly he decided to declare emergency martial law, a question that could carry significant weight as the cases move to appeal.

The 25th Criminal Division of the Seoul Central District Court, which handled Yoon's trial on charges of leading an insurrection, found in February that Yoon formed criminal intent two days before the declaration — on Dec. 1 — when he delegated detailed planning for the martial law operation to then-Defense Minister Kim Yong-hyun. While Yoon had first raised the idea of martial law at a gathering at the presidential residence following Armed Forces Day on Oct. 1, 2024, the court found that his intent had not yet risen to the level of criminal culpability at that point.

The court also ruled that six private meetings held between December 2023 and August 2024 — which the insurrection special counsel had identified as the planning stage of the conspiracy — were unrelated to martial law, finding insufficient evidence that martial law had been discussed at those sessions. In doing so, the court rejected the special counsel's argument, based on a notebook belonging to Ret. Army Maj. Gen. Noh Sang-won, that preparations for martial law had begun as early as October 2023.

The 36th Criminal Division, which handled a separate trial on charges of general insurrection, reached a different conclusion on Friday. That court found that Yoon had already decided to declare martial law by October 2024, when a drone deployment operation was carried out. Yoon was accused of ordering drones to be flown into North Korean airspace over Pyongyang in October 2024, with the intent of provoking a military response from the North that could then be used to justify declaring martial law domestically.

The court reasoned that Yoon and his associates had concluded that a national emergency was needed to precede the declaration to give it legitimacy, and had therefore sought to provoke North Korea into a confrontation to manufacture a crisis. The court also found that discussions of emergency powers and emergency measures had taken place as early as a dinner at a private residence on March 29, 2024, and continued through November 2024.

The two courts also diverged on the significance of Kim's appointment as defense minister on Sept. 6, 2024. The earlier ruling did not directly link the appointment to martial law preparations, finding no corroborating evidence to support testimony that Yoon had spoken of the need for "extraordinary measures" in March and April 2024.

The more recent one by the 36th Division, however, found that the replacement of the Defense Ministers was itself part of the groundwork for martial law. "Yoon Suk Yeol was in a situation where he needed to create the conditions for declaring emergency martial law, and appointed Kim Yong-hyun as minister in place of Shin Won-sik," the court said.

The 36th Division also appeared to give some credit to former Joint Chiefs of Staff (JCS) Chairman Kim Myung-soo, finding that he had grown suspicious of what was being planned and resisted orders he considered unlawful.

"Had the [JCS] not expressed opposition and found excuses such as equipment failures to avoid carrying out instructions, there is a possibility that actual armed conflict could have occurred," the court said.

The second special counsel team, however, has taken a different view of the ex-JCS chief, seeking an arrest warrant on charges of playing a key role in the insurrection. The team's position is that the former chairman watched as troops were deployed during the martial law declaration and failed to stop them.

BY CHOI SEO-IN [[email protected]]