Chapter 3 – Truth-finding and Criminal Accountability in Taiwan and South Korea
3.1 Korea’s Search for Truth, Justice, and Reconciliation
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Chapter 3 – Truth-finding and Criminal Accountability in Taiwan and South Korea
Truth-finding is something of a nebulous term; it may encompass any number of tools used to uncover the full story of events that took place when authoritarian rulers still maintained a monopoly on truth. The South African Truth and Reconciliation
Commission embodies most wholly the concept of the truth commission described earlier in the literature review, but not every truth-finding process can accurately bear this label.
One of the major distinctions between the transitional justice of South Korea and Taiwan is that, despite both experiencing autocratic rule for the period following the end of World War II until near the end of the Cold War, South Korea’s truth-finding efforts drastically exceed those undertaken by Taiwan, in both scope and sheer number. The South Korean mechanisms also differ in nature from Taiwan’s, tending to be closer to Hayner’s description of a truth commission outlined in Chapter 2. This chapter will first look at three major South Korea truth-seeking mechanisms, and compare them with the three that have taken place so far in Taiwan. The KMT’s postwar attempt at justice for Japanese collaborators in Taiwan will also be examined briefly. The second part of the chapter will explore criminal accountability, or lack thereof, for human rights violations that occurred during either countries’ period of authoritarian rule.
3.1 Korea’s Search for Truth, Justice, and Reconciliation
For Koreans, transitional justice is not a commonly used phrase. Rather, those who study the country’s method of accounting for past abuses have adopted a term that has at times been awkwardly translated into English as “historical liquidation.” (Chu, 2016; Jung, 2015, p. 26) A more accurate translation of this concept might be “settling the past.”
This has consisted of multiple truth-finding bodies7 which were established to investigate
7 There are different estimates of how many truth commissions took place in South Korea, depending on different criteria. Wolman (2013) claims that “at least ten have been implemented over the past fifteen years” (p. 28). Hayner (2011) refers to her correspondence with Hunjoon Kim in placing the number at between fourteen and eighteen bodies that could be considered truth commissions (p. 55), although “some of these were committees or commissions established within existing agencies, such as the intelligence service, department of justice, or national police” (p. 307). Also, some commissions only focused on
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different periods of Japanese colonial and Korean autocratic rule, including abuses that occurred during the Korean War in the early 1950s.
The model for truth-finding in South Korea, according to Jung (2015), has consisted of a desire to release its society from the burden of three separate areas of its past: the
authoritarian, colonial, and Cold War past. This gave rise to three separate methods of truth-finding: the “truth and justice” model of 1988-1995, the honor-restoration model, and the truth and reconciliation model. Instead of outlining every truth-finding effort that has taken place in South Korea, a monumental task, the author has chosen to focus on three organizations most often mentioned in the English language literature on this topic and which closely conform to Jung’s three truth-finding models: the Presidential
Commission on Suspicious Deaths, the Commission on the Confiscation of Properties of Pro-Japanese Collaborators, and the Truth and Reconciliation Commission of Korea (TRCK).
3.1.1 The Presidential Commission on Suspicious Deaths (2000-2004)
Thirteen years after the country held its first free national elections in 1987, the first truth commission to investigate deaths that had occurred during the Park Chung-hee and Chun Doo-hwan military dictatorships was established. In 2000, the Act for Restoring the Honor of Democratization Movement Involvers and Providing Compensation for Them was passed. The law, in addition to performing the tasks evident in its name, also provided a definition for who was to be considered to have been involved in South Korea’s democratization movement (Cho, 2007). The following year, the Special Act for Truth-Finding about Suspicious Deaths was passed, which established the Presidential Commission on Suspicious Deaths. The commission consisted of 9 commissioners and was headed by Professors Yang Seung-Kyu and Han Sang-Beom (Ibid.).
The commission was tasked with investigating specific deaths deemed “suspicious,” and was imbued with a number of powers to carry this out. This included the ability to request individuals to appear before the commission, conduct field investigations, file
reparations for victims, not necessarily on fact-finding (Minbyun, Personal Correspondence, February 7, 2017).
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complaints to the Attorney General or the Chief of the Military General Staff, petition law enforcement to investigate chosen cases, and issue orders to impel individuals who had “refused to appear without just cause” (Cho, 2007, p. 598). It was originally mandated to last for two years, but was extended another two in response to pressure from civil society.
In spite of a very large expected caseload, reflecting the equally large amount of state violence that occurred in the decades-long period of authoritarian rule, only eighty cases were presented to the commission for investigation; five more were then added by the commission itself (Hayner, 2011, p. 55). Although “victims advocated for a witness protection program, public hearings, and even for an amnesty-for-truth arrangement that might have brought forth more information…these elements were not included” (Ibid., p.
55). This could have had a significant effect on the amount of people who came forward to testify, both victims and perpetrators.
Other criticisms of the Presidential Commission on Suspicious Deaths abound. For one, it did not “undertake a broader historical review of patterns, causes, and consequences” of the deaths and violence (Hayner, 2011, p. 55). As Wolman (2013) notes, this deficiency is antithetical to the common argument amongst transitional justice scholars “that truth commissions should be fundamentally concerned with understanding the causes and consequences of human rights abuses, and not just whether or not they occurred” (p. 53).
Secondly, notwithstanding its broad capacity to investigate past abuses, the commission had relatively weak subpoena power. It could only issue a fine to those who refused to appear for investigation. It also had a limited ability to gather necessary information from state authorities or enforce their compliance, leaving many questions related to the cases it investigated unanswered (Cho, 2007, p. 603). Pressure from families and civil society pushed the commission to include barring application for the statute of limitations in cases of state violence in its recommendations, but this has yet to be implemented (Cho, 2007, p. 603; Hayner, 2011, p. 55).
The Presidential Commission on Suspicious Deaths was able to, however, unravel the mystery of a number of deaths at the hands of the state that had previously been officially accepted as unsolved or accidents. It also set a precedent as the first official truth
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commission in South Korea to pursue truth, justice, and reconciliation for victims of human rights abuses prior to democratization.
3.1.2 The Commission on the Confiscation of Properties of Pro-Japanese Collaborators (2005-2010)
In stark contrast to Taiwan, which shares a similar past of colonization by the Japanese, yet where many of those who advocate for transitional justice for the abuses that took place during the KMT authoritarian period tend to minimize those of its former colonial master, a large portion of South Korea’s truth-finding process has been dedicated to this portion of its own past. This has included a very emotional and consistent focus on the issue of Korea’s “comfort women” (Hanley, Personal Correspondence, February 17, 2017), investigation of forced labor and conscripted Korean soldiers during the Pacific War (Minbyun, Personal Correspondence, February 7, 2017), as well as a desire for retributive justice for those who had been found to have collaborated with the Japanese colonial government in undermining Korea’s sovereignty and freedom.
Truth commissions on wrongs committed during the Japanese colonial era stemmed from two bills titled the “Special Act to Redeem Pro-Japanese Collaborators’ Property,” passed in 2004 by the National Assembly and the “Special Act for the Inspection of
Anti-Nationalist Activities during the Period of Japanese Colonial Occupation” in 2006 (Baik, 2012, p. 183). This and other legislation was adopted during the liberal administration of Roh Moo-hyun to not only address the issue of collaborators, but also of forced
conscription of Koreans by the Japanese during WWII (Kim, 2016, p. 162). The 2004 act supplied a definition of “anti-nationalist activities” and created a list of those who had taken part in these, publishing their names and details in two public reports. The bill also defined collaborators’ property as that “‘acquired…or inherited, as rewards for
collaborating with imperialist Japan or properties left as estate or gifted with the full knowledge of their pro-Japanese nature’ during 1904 and 1945” (Baik, 2012, p. 184).
This established the framework through which the Truth Commission on the Confiscation of Properties of Pro-Japanese Collaborators would conduct its investigation.
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The Commission began work in 2005. As per its mandate, it “searched for land and other properties under the names of alleged collaborators and their descendants, and began to seize the assets” (Kim, 2016, p. 165), placing them in state coffers. In its four years of existence, the commission succeeded in confiscating approximately 13 million square meters of land from 168 collaborators (Ibid., p. 165). Some of its most notable cases included the seizure of 254, 906 square meters of land inherited by the family of Lee Wan-yong, a minister from the Joseon kingdom who had been instrumental in selling out Korea to imperial Japan (Kim, August 2007), and property that had been acquired by Song Byeong-jun, another infamous collaborator.
The commissions dealing with the Japanese colonial period were popular amongst the Korean public, due to widespread sentiment against the Chinilp’a, the Korean word for the alleged collaborators. Many of these people and their descendants had benefited greatly both during colonial rule and after in large part due to their conduct benefitting the Japanese regime (Kim, 2016, p. 160). The post-WWII government of Rhee Syngman had failed to punish those deemed collaborators; an abortive attempt to establish a committee in charge of investigating “anti-nation activities” in 1948 was undermined by
“Rhee and his allies…from the start” as they were “deriving political support from former collaborators” (Wolman, 2013, p. 33). Lastly, public opinion concerning the Chinilp’a was largely affected by a series of legal cases in the late 1990s, in which the court ruled in favor of the descendants of former collaborators’ in their claims to ancestral land (Baik, 2012, p. 183; Cho, 2007, p. 606; Kim, 2016, p. 165).
According to Kim (2016), the commissions were originally intended to be less about retribution or punishment, and instead to “acknowledge historical injustices and relieve the grievances of victims of state violence” (p. 162). Despite such honorable intentions, both the Committee to Investigate the Truth of Pro-Japanese Anti-National Activities and the Commission on the Confiscation of Properties of Pro-Japanese Collaborators
encountered some significant blowback. The law and the redemption of properties were viewed as unconstitutional by conservatives and the descendants of alleged collaborators.
Several parties dispossessed of their property brought lawsuits against the commission’s activities. This litigation focused on the “legal definition of collaboration and the
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government seizure of their inheritance,” mostly losing their cases in the courts of a justice system created after Korea’s democratization (Kim, 2016, p. 166).
In the largest case, the one that went before the Constitutional Court of Korea, 64 descendants of alleged collaborators filed a joint action suit to protest the laws (Kim, 2016, p. 166). The basis of their argument was that the act on confiscation of properties constituted retroactive legislation, violating the Korean constitution (Baik, 2012, p. 187).
They also pointed to the commission’s lack of a legal dispute mechanism and
presumption of all properties as rewards for pro-Japanese activities, violating their right to due process. Lastly, the plaintiffs argued that being labeled a “pro-Japanese
collaborator” was equivalent to a criminal punishment, and that redemption of their property violated their right to own property or to pursue happiness (Baik, 2012;
Minbyun, Personal Correspondence, February 7, 2017).
The Constitutional Court ultimately decided against the plaintiffs, although it was a divided ruling. The reasoning behind their decision in this case was that the law did in fact constitute retroactive punishment, but that it did not violate the Constitution because the property could have been seized by the government upon Korean independence (Kim, 2016, p. 166). Secondly, the Court claimed that the confiscation of these properties did restrict the personal integrity rights of the plaintiffs, but that this was justified because it was necessary for public welfare (Baik, 2012, p. 187). Finally, it was observed that act did not violate due process of law, in that the descendants of pro-Japanese collaborators did have “other procedural guarantees, such as the opportunity to submit written
objections and the ability to file an administrative law suit” (Baik, 2012, p. 188; Kim, 2016, p. 166).
3.1.3 The Truth and Reconciliation Commission of Korea (TRCK) (2005-2010)
In 2005, South Korea’s National Assembly passed the Basic Act for Coping with Past History for Truth and Reconciliation. This act set the foundation for a long-term official truth-finding body, similar to the South African Truth and Reconciliation Commission, from which the Korean commission took its name. As with the Commission on the
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Confiscation of the Properties of Pro-Japanese Collaborators, the TRCK was established during the Roh Moo-hyun administration of 2002-2007. Roh and other civil society activists saw the need for a broader and more institutionalized form of investigating the past, in order to avoid an endless process of granting courtroom time and reparations packages on a case-by-case basis (Kim, 2012, p. 3). The resultant organization did indeed have a broad mandate, covering three different historical periods: Japanese colonialism, the Korean War, and violations committed during the period of democratization. The time frame covered by the TRCK was from roughly 1904 to 1987 (Ibid., p 4).
The TRCK was composed of fifteen commissioners, of which “eight [were]
recommended by the National Assembly, four appointed by the president, and three nominated by the Supreme Court” (Hanley, 2014, p. 157). It was commissioned for a four year term, and according to the report it ultimately produced, its purpose was to promote
“national legitimacy and reconcile the past for the sake of national unity by honoring those who participated in anti-Japanese movements and by exposing the truth through investigation of human rights abuses” (TRCK Report, p. 13).
To realize its core goals, the TRCK was entrusted with a number of distinct powers.
These were
request[ing] relevant individuals to submit an affidavit and appear for inquiry, and relevant individuals and authorities to submit pertinent data and
materials…conduct[ing] a field investigation in the place where the cause of a case has occurred…[and] issu[ing] an order of accompaniment to a person who refuses to appear more than three times without just cause (Cho, 2007, p. 608).
It also had the power to make recommendations to the government throughout its work and in its report. These recommendations usually involved restorative, victim-centered measures aimed at political reconciliation. They included official apology,
memorialization, and reparations (TRCK Report, pp. 31-34).
At the time of its conclusion, the TRCK had investigated “11,175 claims submitted by the public, of which 8,468 claims (75 percent) were verified, 1,725 claims (15 percent) were dismissed, and 510 claims (4.5 percent) were unverified” (Wolman, 2013, p. 47).
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The TRCK was definitely a breakthrough in the push for transitional justice in South Korea, but the scope of its investigation was the result of a compromise between the liberals and conservatives in government (Wolman, 2013, p. 46), and it had some severe weaknesses that prevented it from being the kind of truth-finding process Roh Moo-hyun and his supporters had imagined.
One of the biggest issues was the lack of a strong subpoena power. Like the Presidential Commission on Suspicious Deaths, the TRCK was able to request the appearance of relevant individuals, but the “Framework Act lacked provisions authorizing the Commission to force perpetrators to testify or to offer immunity for their testimonies”
(Kim, 2012, p. 9). As a result, alleged perpetrators did not come forward, and,
unfortunately, neither did as many victims as expected. Professor Kim Dong Choon, who was at one point the standing commissioner of the TRCK, believes this is because they were “unwilling to open old wounds between neighbors caught up in the political and ideological struggle of decades ago” (Ibid., p. 9) In an interview with the author, Daegu-based human rights lawyer and international law professor Paul Hanley offered a more rational theory of why so few victims found the nerve to give their side of the story. He mused that South Korea’s extremely strict libel laws and the fact that witnesses weren’t sworn in under oath caused people to refrain from testifying for fear of a retributive defamation suit (Personal Correspondence, February 17, 2017).