Chapter 4 – What Lies Behind the Different Approaches
4.2 What Was Missing?
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violence” (Greitens, 2016, p. 53). Taiwan’s situation falls into the first category, while South Korea’s presents an interesting grey area, as three different leaders with varying threat perceptions created a situation in which state violence both increased and decreased over certain periods of time.
What bearing does this have on the method of transitional justice used in either country?
The nature of the KMT’s perceived threat was that of a popular uprising against the regime, and it forged a security apparatus in the early 1950s that used violence
discriminately. By the time martial law was lifted in 1987, most of the horrors of the 228 Incident and the White Terror had long ended. In South Korea, varying levels of violence meant that some very violent episodes, especially the Gwangju Incident, were still fresh on everyone’s mind. This situation, combined with an incredibly strong civil society that had taken an active part in South Korea’s democratization and desired to see justice served for the years of repressive autocratic rule, was a driving force in the more comprehensive transitional justice approach taken by South Korea’s democratic government.
4.2 What Was Missing?
South Korea appears to be an exemplar of comprehensive, victim-centered, moderate transitional justice, at least in comparison to Taiwan. The multiple truth commissions the governments of Kim Young-sam, Kim Dae-jung, and Roh Tae-woo employed meant that a broad range of topics and time periods were covered, victims of human rights violations were more able to have their side of the story publicly recorded, and they and their
families were awarded compensation for the loss they suffered due to these violations.
The criminal trials of Chun Doo-hwan and Roh Tae-woo, the two former authoritarian leaders responsible for the coup d’état and brutal Gwangju crackdown, relieved some of the pressure of Korean society’s yearning for some sort of accountability. However, a deeper review of the literature, especially that written by Korean scholars and those who actively took part in transitional justice efforts, as well as in-person interviews with lawyers and other experts, revealed a gap between what South Korea’s transitional justice looks like on paper, and what the reality of it was.
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The majority of arguments against the success of South Korea’s transitional justice tend to emphasize the places where it was not strong or effective enough, rather than it being too strict or retributive. The Minbyun lawyers that were interviewed for this thesis mentioned that not enough of the past was investigated, that the names of wrongdoers were not publicized, and that the large time lapse between when many of the human rights abuses were committed and when the South Korean government actually decided to investigate them meant that those wrongdoers went unpunished (Minbyun, Personal Correspondence, February 7, 2017). Professor Paul Hanley felt that too much focus was placed on the injustices committed by the Japanese during the colonial period and the Pacific War, and that there was “less incentive to dig into crimes committed by South Koreans against South Koreans” (Hanley, Personal Correspondence, February 17, 2017).
He also noted that punishment for perpetrators was extremely limited, attributing this to the Confucian notion amongst ordinary Koreans that Chun Doo-hwan and Roh Tae-woo being brought to trial and losing their power and money was punishment enough (Ibid.).
In terms of the trials, the guilty verdicts and convictions of Chun and Roh only
temporarily assuaged the fears among Korean society that justice would not be served.
However, the fact that both former presidents were pardoned two years after their convictions caused a lot of Koreans to lose faith in the power of post-transition justice.
When the author argued that both still carried the burden of their convictions in an interview with Professor Hanley, the latter replied: “But again, [Chun] was acquitted and now lives in a palace in Seoul” (Hanley, Personal Correspondence, February 17, 2017).
This is true. In fact, since his pardon, “Chun has mostly been living discreetly in a quiet upscale neighborhood in Seoul with his wife and a string of bodyguards” (Choi, April 2017). He continues to publicly deny his guilt, most recently in a 2,000- page memoir published in mid-2017 (Ibid.). To many both within and outside of Korean society, this does not even remotely constitute accountability.
Another criticism of South Korea’s efforts in addressing is colonial and authoritarian past stems from the nature of the truth commissions, and how they were structured. One issue is of recommendations, especially those given by the TRCK. Wolman (2013)
summarized these recommendations, which were comprised of three different categories:
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In massacre cases, the recommendations focused on providing State apologies, revising family registries, instituting memorial events, revising historical records, peace and human rights education, law revisions, and medical subsidies for the wounded. In human rights abuse cases, the TRCK recommended retrials, state apologies, deletion of records, and the provision of compensation and medical services for victims and bereaved families. Although the TRCK does not have the power to award compensation, it has recommended that the government pass a law awarding compensation to victims (p. 48).
However, he notes that these suggestions were not always followed, especially in terms of apology beyond that given by Roh Moo-hyun to the victims of the Jeju 4.3 Incident (Ibid., p. 48-49). Kim (December 2013) also points out that major, all-encompassing recommendations have been largely ignored, and that recommendations for individual cases, while having a much better record of being fulfilled, were not entirely what they appeared. He states that “a closer look reveals that almost half of implemented
recommendations involved measures that required very little effort, such as placing the TRC’s report in government offices (117 cases) and participating in memorial services (55 cases)” (Ibid.).
One of the major issues with the truth commissions was that they were, by and large, administrative proceedings, not legal bodies, and, as mentioned in Chapter 3, had weak subpoena power (Cho, 2007, p. 608-609; Hanley, 2014; Hayner, 2011). Kim (2012) observes that the TRCK was particularly weak in this area in that “its investigative authority as a temporary truth commission was curtailed by the law, which did not provide conditions to facilitate victims’ testimony (p. 9) This barred it from being able to properly account for the harm inflicted on victims, their families, and their descendants, as “both the perpetrators of violence and victims’ families have been reluctant to come forward to speak for both legal and social reasons” (Ibid., p. 9). Lastly, the TRCK was shut down somewhat prematurely during the Lee Myung Bak administration, after the replacement of the head of the commission with a conservative “who was known to be unwilling to accomplish the TRCK’s work in accordance with the former two
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chairperson’s plan” (Kim, 2012, p. 11). Thus, only 8,450, or 85.6%, of the 11,175 petitions brought before the commission were fully investigated (Hanley, 2014, p. 160).
The administrative nature of the commissions, trials, and reparations has also led to arguments on the other side of the spectrum, noting that the justification for some parts have been constitutionally questionable, and also that they have been used as a political weapon. For example, the discussion of whether or not the act that established the Commission on the Confiscation of the Properties of Pro-Japanese Collaborators respected the right of due process of the accused, and could be considered retroactive legislation, was discussed in Chapter 3. Baik (2012), the author who brought up this issue, also pointed to a disparity in the amount of reparations given to victims of certain events, noting that the victims of the Jeju 4.3 Incident were provided significantly less reparations than those of the Gwangju 5.18 Incident. This may indicate a regional bias, as Gwangju is part of the southwestern Honam region, the historically liberal stronghold, while Jeju is not. The timing of the Gwangju Incident, which happened in 1980, also put it much closer to democratization than Jeju, which took place over a six year period almost half a century earlier.
Attorney Chang of Minbyun contended that lack of proper education about human rights and the purpose of transitional justice is yet another issue that has yet to be resolved.
During his interview, he stated:
There are some severe problems of distorted history education in Korea, so I think distorted Korean history education gives wrong impression to those offspring or future generations in Korea…up until 2010, there was quite active process of truth commissions and so on, but with the governmental change to the conservative party, the Lee Mung Bak administration stopped the [commission]…so I think there should have been some afterwards works after the commission…such as educating the children how the committee works or what the truth commission has done so far in Korean society. There was nothing about it, so the only thing the commission has done was the investigation itself (Minbyun, Personal Correspondence, February 7, 2017).
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Education has been a serious issue not only for Korea, but for other East Asian countries that experienced some sort of authoritarian dictatorship in the past as well. This has been an ongoing issue in Japan, where nationalist politicians and groups use history education in an attempt to whitewash or glorify the brutality of Japan’s colonization of, and
violence in, multiple nations in the Asia-Pacific. It is also true of Taiwan, where in 2015, student activists stormed and occupied the Ministry of Education headquarters, protesting history curriculum that glosses over the wrongs the KMT committed during its one-party authoritarian rule (Cole, July 2015).
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