遲來正義不是正義？台韓轉型正義方法的比較 - 政大學術集成

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(1)國立政治大學亞太研究英語碩士學位學程 International Master’s Program in Asia-Pacific Studies College of Social Sciences National Chengchi University 碩士論文 Master’s Thesis. 立. 政治大. ‧ 國. 學. 遲來正義不是正義？台韓轉型正義方法的比較. ‧. n. al. er. io. sit. y. Nat. Justice Delayed or Justice Denied? A Comparison of Transitional Justice Approaches in Taiwan and South Korea. Ch. engchi. i n U. v. Student: Jeremy Olivier Advisor: Professor Wei Mei-Chuan. 中華民國 106 年 5 月 May 2017.

(2) 遲來正義不是正義？台韓轉型正義方法的比較 Justice Delayed or Justice Denied? A Comparison of Transitional Justice Approaches in Taiwan and South Korea 研究生：歐嘉仁. Student: Jeremy Olivier Advisor: Professor Wei Mei-Chuan. 指導教授：魏玫娟. 政治大. 國立政治大學. 立. 亞太研究英語碩士學位學程. ‧ 國. 學碩士論文. er. io. sit. y. ‧. Nat. A Thesis. n. al v in Asia-Pacific Submitted to International Master’s Program C h Studies U n i i e ngch. National Chengchi University In partial fulfillment of the Requirement for the degree of Master of the Arts in Social Sciences. 中華民國 106 年 7 月 July 2017.

(3) Acknowledgements I would first and foremost like to express my sincere appreciation to my advisor, Professor Wei Mei-chuan, for taking me on as an advisee without question, providing excellent guidance and references, and helping me navigate the most difficult parts of this project. In addition, my committee members, Professors Huang Chang-ling and Li Fuchung helped me forge a clear direction with my thesis and shed light on areas I had previously given little consideration to. Professor Yu Ching-hsin must also be given special mention for teaching me how to think critically about Taiwanese political issues and giving me the initial idea for this research.. 政治大 importance to the formulation 立and honing of the central arguments found in its pages.. I also want to thank the participants interviewed for this thesis, who were of monumental. Attorneys Seo and Chang, Professor Paul Hanley, Su Ching-hsuan, and Professor Huang. ‧ 國. 學. Cheng-yi, I am forever grateful for your time, patience, and dedication to the cause of transitional justice in South Korea and Taiwan. Thank you also to Lyu Dasol for taking. ‧. on the formidable task of interpreting for the entire interview at Minbyun.. sit. y. Nat. My classmates in the IMAS program were instrumental in aiding me in my completion of coursework for the program and providing moral support for me during the writing of this. io. al. er. thesis. In particular I would like to thank Conor Salcetti, Scott Morgan, Gina Song, Bryn. n. iv n C h egreat Cowsill, who consistently recommended n gsources c h i onUTaiwanese contemporary. Thomas, Torie Gervais, and Daniel Glockler. My good friend and NCCU alum Patrick. history and acted as a mentor during my time in IMAS, has my many thanks as well. Finally, I owe a debt of gratitude to Stacy Hsu, for opening new doors to me, giving me a first-hand look at the political landscape in Taiwan, and inspiring me to push myself outside of my comfort zone and write about this issue in a way that demonstrated both compassion and clarity. This thesis has been the highest hill I’ve had to climb in my academic career, and its completion would not have been possible without her help and encouragement..

(4) Abstract Recent changes in the political landscape and dialogue of Taiwan and South Korea have led to a renewed focus on justice, specifically the concept of historical justice for abuses of human rights that occurred under the rule of these countries’ authoritarian regimes. Taiwan and South Korea both experienced similar 20th century historical development. However, they have approached accounting for human rights abuses committed before political transition, a process called transitional justice, in very different ways. Whereas the post-transition government of South Korea embarked on a series of official truth commissions, the criminal trials of two former dictators, and multiple reparations. 政治大 approach. It has pursued weak truth-finding methods, provided compensation to victims 立 of violence during martial law rule, and is currently working on settling the contentious schemes for victims of state violence, Taiwan has taken a much more piecemeal. ‧ 國. 學. issue of KMT party assets. This thesis examines the two areas in which these two East Asian “third wave” democracies have differed most drastically in their approach – truth-. ‧. finding and criminal accountability – and asks what the underlying circumstantial, historical, and institutional reasons for these differences are. It then investigates what was. Nat. sit. y. missing from the South Korean approach, despite looking very comprehensive on paper,. io. er. and provides a vision for moving forward with a moderate policy of transitional justice that can satisfy victims’ desire for truth and healing and promote reconciliation between. n. al. i n U. v. traditionally conflicting groups in both Taiwan and South Korea.. Ch. engchi. Key Words: Taiwan, South Korea, transitional justice, democratization, truth commission. i.

(5) 摘要由於台灣與南韓近期的政權與溝通的更迭，兩國國內的政治焦點又再次轉向正義，尤其是針對在獨裁政權統治下，受到迫害的人民而言的歷史正義。雖然台灣與南韓在二十世紀時，都經歷了相似的政治進程，但兩國在處理政治轉型前的人權迫害問題，即所謂的轉型正義的方法卻不盡相同。在南韓，轉型後的政府開始推行一系列的政策，包括成立真相委員會、審判兩名前任總統、為國家暴力的受害者建立. 政治大. 多重補償法案。相對的，台灣政府的作法則較為零碎，使用相對消極. 立. 的方法尋找真相、提供戒嚴時期的受害者賠償、目前則處理長久以來. ‧ 國. 學. 具有爭議性的國民黨黨產問題。本論文將檢視此兩個東亞「第三波」民主國家，在處理轉型正義的問題上（亦即尋求真相與責任歸屬）為. ‧. 何會採用兩種徹底不同的解決之道，並對不同解決方式背後的環境、. y. Nat. 歷史、制度下的原因提出疑問；接著探討南韓政府這看似合理的做法. sit. 為何僅是紙上談兵，究竟有何欠缺。針對兩國的轉型正義議題，本論. a. er. io. 文試著提出一項溫和的轉型正義推動政策，以滿足受害者對於真相、. n. v 對於平復的渴望，以促進兩國內部對立團體的和解。 l ni Ch. engchi U. 關鍵字：台灣，南韓，轉型正義，民主化，真相委員會. ii.

(6) TABLE OF CONTENTS Chapter 1 – Introduction ..................................................................................................... 1 1.1 Research Background ................................................................................................ 1 1.2 Research Purpose and Questions............................................................................... 6 1.3 Research Method ....................................................................................................... 7 1.4 Limitations ................................................................................................................ 7 1.5 Organization of the Thesis ........................................................................................ 8 Chapter Two – Literature Review and Theoretical Framework ......................................... 9. 政治大. 2.1 Literature Review ...................................................................................................... 9. 立. 2.1.1 Theories of transitional justice ........................................................................... 9. ‧ 國. 學. 2.1.2 Transitional Justice Mechanisms ...................................................................... 10 2.2 Theoretical Perspectives .......................................................................................... 14. ‧. Chapter 3 – Truth-finding and Criminal Accountability in Taiwan and South Korea ..... 16. sit. y. Nat. 3.1 Korea’s Search for Truth, Justice, and Reconciliation ............................................ 16. io. al. er. 3.1.1 The Presidential Commission on Suspicious Deaths (2000-2004) .................. 17. n. 3.1.2 The Commission on the Confiscation of Properties of Pro-Japanese. Ch. i n U. v. Collaborators (2005-2010) ........................................................................................ 19. engchi. 3.1.3 The Truth and Reconciliation Commission of Korea (TRCK) (2005-2010) ... 21 3.2 Taiwan’s Official Attempts at Truth-Finding ......................................................... 23 3.2.1 Research Report on the 228 Incident (Ererba shijian yanjiu baogao, 二二八事件研究報告) (1992) .................................................................................................. 25 3.2.2 Research Report on Responsibility for the 228 Massacre (Ererba shijian zeren guishu yanjiu baogao, 二二八事件責任歸屬研究報告) (2006) .............................. 26 3.2.3 Settling Party Assets under Chen Shui-bian and Tsai Ing-wen ........................ 28 3.2.4 Postwar Justice under the KMT........................................................................ 31 iii.

(7) 3.3 Criminal Accountability and Punishment ............................................................... 32 3.3.1 South Korea – Criminal Trials, Subsequent Amnesty...................................... 32 3.3.2 Taiwan – A Total Lack of Accountability? ...................................................... 36 Chapter 4 – What Lies Behind the Different Approaches ................................................ 39 4.1 Key Contributing Factors ........................................................................................ 39 4.1.1 The KMT’s Continued Grip on Power ............................................................. 40 4.1.2 South Korea’s Liberal Presidents ..................................................................... 43 4.1.3 Disparate Cleavage Structures .......................................................................... 47. 政治大 4.1.5 A Matter of Time 立 .............................................................................................. 53. 4.1.4 The Constitutional Courts ................................................................................. 51. ‧ 國. 學. 4.2 What Was Missing? ................................................................................................ 58 Chapter 5 – Conclusion ..................................................................................................... 63. ‧. References ......................................................................................................................... 71. n. al. er. io. sit. y. Nat. Appendix ........................................................................................................................... 79. Ch. engchi. iv. i n U. v.

(8) Chapter 1 – Introduction 1.1 Research Background Recent developments in the political landscape of Taiwan and South Korea have led to a renewed interest in the concept of justice, specifically for historical abuses of human rights perpetrated by these countries’ previous authoritarian regimes. In Taiwan, Democratic Progressive Party (DPP) presidential candidate Tsai Ing-wen was elected in January 2016 and pledged to carry out broad reforms in the justice system, as well as push for renewed transitional justice measures for violations that occurred during the 228 Incident1 and the succeeding four decade period of martial law imposed by the KMT.. 治政大 Yuan have been Since then, the Tsai administration and DPP-controlled Legislative 立 transitional justice measures. The Act Governing the working to carry out some tangible ‧ 國. 學. Handling of Ill-Gotten Party Properties by Political Parties and their Affiliate Organizations was passed in July 2016, and the next month the Ill-Gotten Party Assets. ‧. Settlement Committee (Budang dangchan chuli weiyuanhui, 不當黨產處理委員會) was inaugurated (EY Press Release, 2016). Currently, the DPP caucus in the legislature is. Nat. sit. y. attempting to draft a transitional justice promotion act, which would “focus on judicial. io. er. redress, legal remedy and collection of political archives,” as well as “deal with the misappropriation or illegal occupation of government properties” (Chiu, April 2017).. n. al. Ch. i n U. v. These are important developments for Taiwan, where, in a poll taken by the Taiwanese. engchi. magazine Business Today (今周刊) in March 2016, 76.3% of respondents believe that transitional justice is still incomplete (Taiwan chengwei zhenzheng minzhu guojia, 2016). Meanwhile, in South Korea, two consecutive conservative presidencies seemed to have proved regressive in relation to the large strides that had been made in democracy, respect for human rights, and transitional justice throughout the late 1990s and early 2000s there. This includes an unpopular deal between the Park Geun-hye government and. 1. Also known as the February 28 Incident or the 228 Massacre, although the latter carries a much more politically charged connotation. For the purposes of maintaining academic neutrality, this thesis will use “228 Incident,” with the exception of quotes or titles in which another term is used.. 1.

(9) that of Japan to compensate Korean “comfort women,”2 in return for the removal of a bronze “comfort woman” statue erected by protesters outside the Japanese consulates in Seoul and Busan. Park, daughter of deceased former military dictator Park Chung-hee, was elected in 2011 in part due to nostalgia amongst older conservative Koreans for the economic prosperity and heightened security experienced under her father’s despotic rule. This was an interesting choice of president for what is considered to be a consolidated democracy. However, in late 2016, it was revealed that President Park had been entrusting an extremely large amount of decision-making power to a childhood friend, the daughter of. 政治大. a cult leader named Choi Soon-sil, and had also helped Choi extort bribes from a number of the large Korean conglomerates, called chaebol. In response to these revelations,. 立. massive demonstrations took place in city centers throughout South Korea, comprised. ‧ 國. 學. mainly of younger Koreans, and reminiscent of the democracy movement protests that had erupted across the country thirty years before. In March 2017, Park was impeached, removed from office, and is currently facing a prison sentence. Moon Jae-in, once a. ‧. human rights lawyer and aide to Roh Moo-hyun, the late former president who pushed. sit. y. Nat. forward the vast majority of transitional justice legislation in South Korea, won the vacant presidential seat in May 8, 2017. His victory will likely entail a change in both. io. n. al. er. international and domestic policy, and there is hope that this change will include a. i n U. v. renewed focus on addressing South Korea’s troubled authoritarian past.. Ch. engchi. Transitional justice can generally be understood as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes” (Teitel, 2003, p. 69). Change here means the transition of a country’s governing system from non-democracy to democracy, as in the case of South Africa or Chile; it might also include a post-conflict scenario, such as Rwanda. This notion of justice is based on the “increased expectation that. “Comfort women” is the euphemism given to females forced, coerced, or tricked into sex slavery for the Japanese Imperial Army during World War II. They were taken from Japan’s former colonial and territorial holdings, and included women from Taiwan, Korea, Manchuria, Indonesia, and the Philippines, among others. The system of “comfort stations” was expanded to fight the negative image the Japanese military gave itself with incidents such as the Nanjing Massacre, in which indiscriminate rape of young women and girls took place. 2. 2.

(10) accountability is due after atrocity” (Hayner, 2011, p. 8). Atrocity in this sense can take any of a number of forms, including genocide, civil warfare, imprisonment for political offences, disappearing of dissidents, and arbitrary execution, among others. The modern conception of transitional justice is said to have originated in the period following World War I, gaining more traction after 1945, with the Nazi war crimes trials and reparations paid to German Jewish victims of Nazi atrocities. The democratization of many Latin American, African, Asian, and post-communist governments in the period leading up to and following the end of the Cold War represented a new direction for the pursuit of justice in the aftermath of various civil wars and democratic transformations,. 政治大. moving away from the international criminal trials of postwar Europe to a more restorative form of justice seeking. This change “included questions about how to heal an. 立. entire society and incorporate diverse rule of law values, such as peace and. ‧ 國. 學. reconciliation” (Teitel, 2003, p. 77).. The pursuit of transitional justice varies from country to country, but invariably involves. ‧. one or more of “three main mechanisms (i.e. human rights trials, truth commissions and amnesties), along with lustration, reparations, institutional reform, and commemorative. Nat. sit. y. acts, monuments, and museums” (Dancy, et al., 2013, p. 1). The mechanisms will be. io. er. discussed in further detail in the second section of the literature review.. al. iv n C past abuses of power and human rights in Taiwan and South h e n g c h i U Korea, it is necessary to provide some discussion of each country’s democratization process. This is because n. Lastly, in order to understand the foundation for arguments in favor of accountability for. transitional justice is a concept almost inextricably linked with democratic transitions or post-conflict situations. It is inherently difficult to apportion some form of accountability in a country still under authoritarian rule because wrongdoers are still in positions of significant power. However, democratization is not a black-and-white condition, as extenuating circumstances can lead to a democratized country instituting either stronger or weaker methods of transitional justice, or not pursuing the matter at all. A brief examination of democratization in Taiwan and South Korea presents a better idea of how such a process can differ from one case to another.. 3.

(11) Before delving into the specifics of the democratic transitions that took place in Taiwan and South Korea, it is important to understand the broad similarities in each country’s 20th century histories. Both carry the legacy of colonization by the Japanese; both remained under authoritarian rule for a similar amount of time, and began democratizing in the 1980s (Jacobs, 2007); both experienced rapid economic growth before becoming democracies by utilizing similar, yet unique, developmental state models; both underwent a smooth and relatively peaceful transition from autocratic rule to democracy (Huntington, 1992); and both, despite having faced numerous challenges to democratic consolidation and institutionalization over the years since transition, have prevailed as open and liberal democracies.. 政治大. In South Korea, a process of what Huntington terms “transplacement,” in which moderate. 立. elements in both the ruling military dictatorship and the opposition negotiated the terms. ‧ 國. 學. of the transition, was responsible for the large-scale democratic reforms of the late 1980s and early 1990s (Huntington, 1993, Ch. 3). The nature of this transition and the “different power structures” that exist “in the post-transition politics” have greatly influenced how. ‧. democratic South Korea has dealt with its authoritarian predecessor regime (Wu, 2005, p.. sit. y. Nat. 6). io. er. Kim (1997) argues that “the main impetus” for democratization in Korea “came from the authoritarian regime’s overconfidence about its legitimacy and stability” (p.1135) in its. n. al. Ch. i n U. v. move to liberalize in the early 1980s and then to hold direct elections in 1987 (Robinson,. engchi. 2007, p. 167). These measures were also taken in response to the growth of strong civil society elements, including people’s movement groups, “such as the Korea Teachers’ Union, the Korea Trade Union Confederation, and student organizations” (Kim, 1997, p. p. 1137). In fact, it was the student protests organized by the National Coalition of University Student Representatives that “sparked off a series of political demonstrations” and culminated in Roh Tae-woo’s Eight Point Declaration, a concession which catalyzed the process of democratization in 1987 (Lee, 2002, p. 832). Taiwan, meanwhile, experienced a transition to democracy without a change of regime, although reforming the one-party system was a gradual process of liberalization and “Taiwanization (本土化)” of the ruling party, the KMT (Tien, pp. 40-43; Jacobs, 2005). 4.

(12) This has had a determining effect on its achieving transitional justice, as power structures have remained fundamentally the same post-transition. The main thrust of democratization in Taiwan was a process of what Huntington calls “transformation,” in that moderate elites in the KMT regime led the charge in facilitating the transition (Huntington, 1993, Ch. 3; Jacobs, 2012, pp. 12-14). The decision not to arrest members of the newly established DPP in 1986 and the lifting of martial law in 19873 showed the influence of these more liberal elements in the KMT may have had on then-dictator Chiang Ching-kuo. In the years since democratization, this argument has been challenged. Many who took an active part in pushing for democracy and rule of law. 政治大. in Taiwan believe that their efforts, like those of democracy activists and civil society organizations in South Korea, were just as responsible for Taiwan’s transition.. 立. Some have pointed to local elections which took place in Taiwan from the 1950s onward. ‧ 國. 學. as possibly having laid the groundwork for democratization (Jacobs, 2007, p. 236; Chao & Meyers, 2000). Others have noted the development of a free press, which began with. ‧. the creation of the Free China Fortnightly in the 1950s and the Formosa Magazine Group in the 1970s was a significant contributing factor (Cheng, 1989; Tien, 1992, pp.. Nat. sit. y. 41-42). Lee (2002) points to large-scale protest movements, such as the Tangwai4 and. io. er. Wild Lily student demonstrations5, as playing a central role in the transformation process, something which it had in common with South Korea (p. 833). Most agree, however, that. n. al. Ch. i n U. v. it was a confluence of different factors that set the stage for a gradual, yet peaceful transition to democracy in Taiwan.. engchi. 3. Under the martial law rule of the KMT, political parties that were not approved of by the ruling party were considered illegal. Political organizations that had formed in the past, such as Lei Chen’s China Democratic Party, were crushed and their leaders imprisoned. This made the peaceful development of the DPP’s formation all the more notable (Cheng, 1989; Jacobs, 2013) 4 Literally meaning “outside the party,” the tangwai is the term used for what began as a loosely organized group of middle-class Taiwanese who worked to campaign for empty parliamentary seats after the original mainlander legislators began to pass away. They eventually congealed into a bona fide group of opposition politicians in the 1980s and were the core of the Democratic Progressive Party, Taiwan’s first true opposition party. 5 The largest student movement in Taiwan’s history, the Wild Lily protests began in March of 1990 to urge reform of the National Assembly, whose terms of membership were heavily skewed in favor of the ruling mainlander elite. The protests were nonviolent and extremely well-organized, included sit-ins and hunger strikes, and estimates of the number of demonstrators range from 4,000 to 30,000 (Katsiaficas, 2013; Roy, 2003).. 5.

(13) 1.2 Research Purpose and Questions As evinced in the preceding section, large-scale political changes are taking place in both Taiwan and South Korea at the moment of this writing. Understanding the strong desire to have some sort of settling of past accounts by many in Taiwan and the consistent discussion of similar issues in South Korea, this thesis is important not only for those whose interests lie in transitional justice as a subject of comparative politics, but also for the broader topics of democratization and respect for human rights. What will be explored in the following chapters is the vastly different approaches to transitional justice of two East Asian democracies. Whereas South Korea has embarked. 政治大 committed under their previous colonial and authoritarian regimes, including multiple 立 truth commissions, criminal trials for major perpetrators, and broad reparations schemes, on a comprehensive, or holistic, process of accounting for human rights abuses. ‧ 國. 學. Taiwan’s approach has been much more piecemeal. Its post-transition administrations instead pursued weak truth-finding methods, avoided historical criminal accountability,. ‧. and provided compensation to victims of the 228 Incident and the White Terror. This comparative description gives rise to the two major research questions this thesis intends. y. Nat. sit. to explore in the following sections:. al. n. divergence?. er. io. 1) What are the major circumstantial, historical, and institutional reasons for this. Ch. engchi. i n U. v. 2) What is missing from the South Korean holistic approach that has led to the argument amongst victims and advocates that justice has not yet been served? There is no dearth of literature offering normative theories of transitional justice, as well as the mechanisms used to carry it out. There is also a growing body of scholarship on the respective transitional justice approaches of Taiwan and South Korea. And despite some excellent comparative studies on the democratization process in the two countries, to date no comparison of their system of accounting for past atrocities has yet been explored in English. This thesis intends to add to the existing literature by offering a comprehensive examination of the two areas in which their approaches differed most significantly –. 6.

(14) truth-finding and punishment – and by adding some novel ideas to the discussion of why this difference exists.. 1.3 Research Method The author has utilized a fairly simple qualitative research method for this thesis. Since the vast majority of research on transitional justice is predicated on normative analysis, and because statistical data directly related to the topic is extremely limited, a more or less descriptive historical approach seems more forthcoming. The central aim of this method is to tell the story of South Korea and Taiwan’s relative circumstances in relation to pursuing transitional justice, while shining some necessary light on the key reasons as. 政治大. to why they have taken such disparate approaches.. 立. The primary tool of this method is an analysis of the major academic literature on. ‧ 國. 學. transitional justice as a broad topic, as well as that focused on the transitional justice efforts of either Taiwan or South Korea. Because the pursuit of historical justice in Taiwan is ongoing and is a topic of major focus in the current Tsai administration,. ‧. articles from local news sources will at times be used to demonstrate the topic’s relevance. sit. y. Nat. to contemporary political dialogue.. io. er. In addition, semi-structured interviews were conducted with several academics and experts from both Taiwan and South Korea. Five to ten questions related to the main. n. al. Ch. i n U. v. research questions were prepared beforehand in order provide a broader and more. engchi. nuanced understanding of the subject. Those interviewees involved in the research of this thesis are cited as (Name, Personal Correspondence, Date) in the main chapter portion. The details of the interviews and the questions provided to the interviewees are listed in the appendices following the reference section.. 1.4 Limitations A major limitation in this study is the author’s unfamiliarity with the Korean language. The entirety of the research was conducted in either English or Mandarin Chinese, which may leave some gaps in the discussion of South Korea’s specific situation as it pertains to the subject material. It is hoped that the information gleaned from reliable English. 7.

(15) language literature, as well as the interviews with South Korean-based human rights lawyers and academics, can provide a clearer, fuller picture of its pursuit of transitional justice.. 1.5 Organization of the Thesis The body section of this thesis will be divided into three separate chapters. A literature review and theoretical perspectives section comprise Chapter 2. Chapter 3 will look at the truth-finding processes in Taiwan and South Korea. It will focus on three of the many truth commissions established in South Korea, the three truth finding efforts completed or underway in Taiwan, and a brief examination of post-colonial justice pursued by the. 政治大 determining criminal accountability and dealing with perpetrators of past human rights 立 abuses. Chapter 4 will address the two central research questions. Chapter 5 provides KMT in Taiwan in the late 1940s. It will also compare their respective methods of. ‧ 國. 學. some concluding remarks and offers several actionable suggestions for a future approach to transitional justice in both countries.. ‧. n. er. io. sit. y. Nat. al. Ch. engchi. 8. i n U. v.

(16) Chapter Two – Literature Review and Theoretical Framework 2.1 Literature Review The literature review for this thesis is broken into two sections considered most relevant to a comparative analysis of the transitional justice of Taiwan and South Korea. The first section is a summary of theories related to transitional justice as a broad topic. The second section delves into the specific mechanisms used to carry out a process of transitional justice in a newly democratized governing system.. 2.1.1 Theories of transitional justice. 政治大 decades. Despite this, many 立 who research transitional justice admit that it is. Transitional justice is a field that has seen a large growth of scholarship over the past few. ‧ 國. 學. undertheorized (De Greiff, 2012; Dancy, et al., 2013). The purpose of this section, then, is to discuss a few of the major arguments in this area and to show the relative lack of consensus amongst scholars.. ‧. Teitel (2000) creates a paradigm of transitional justice in which the rule of law is. Nat. sit. y. extraordinary and symbolizes normative change in periods of political transformation,. io. er. with each mechanism of jurisprudence a tool to separate the new order from the old, nondemocratic one (p. 215). For example, perpetrators of human rights violations are. al. n. iv n C h ewithin committed those crimes, it was perfectly i Uof that legal system. As the n g cthehlimits brought to justice via criminal trials after transition, despite the fact that when they. author states, “what is deemed fair and just during periods of radical political innovation is not necessarily arrived at in deliberations under idealized conditions and regular procedures” (p. 224). Furthermore, she argues that entrenching the response used in the transitional period towards violations of human rights misses “the core transformative message: the belief in the human possibility of averting the tragic repetition of the past in the liberalizing state” (p. 228). De Greiff (2010), however, disputes Teitel’s argument, which he calls the “distinctive thesis,” declaring it a mischaracterization of law during normal periods. He argues that law “by its very essence [is] always and inevitably as Janus-faced as Teitel suggests it is 9.

(17) only in transitions” (p. 60). He also critiques the conclusion her theory produces, that transitional justice is a complex and sensitive process and that no one response is correct in addressing past wrongs, but that how it should be pursued is contingent on several historical, social, and political circumstances (p. 60). He believes that this statement is too elementary for an actual theory, in that it provides no “guidance with respect to which of the compromises that politics and history seem to force upon us are legitimate and which are not” (p. 61) De Greiff instead advances a theory of transitional justice that displays the relationship between the different mechanisms of transitional justice and how they work together as a. 政治大. whole to accomplish two “mediate goals,” recognition and civic trust, and two “final goals, which are reconciliation and democracy (p. 34). In contrast to Teitel’s thesis, De. 立. Greiff believes that “transitional justice articulates the requirements of a general. ‧ 國. world” (p. 34).. 學. understanding of justice when applied to the peculiar circumstances of a very imperfect. ‧. Like De Greiff, Philpott (2012) views justice in periods of political change as a means to an ultimate end. However, he views the overarching goal of transitional justice measures. Nat. sit. y. to be that of reconciliation. This, he writes, is a gradual process of restoration of. io. er. normalized relationships between those who govern and those who are governed in a given political order (p. 288). Philpott’s ethic of reconciliation must include a. n. al. i n U. v. combination of six practices, which are “building socially just institutions,. Ch. engchi. acknowledgement, reparations, punishment, apology, and forgiveness” (p. 172). Two of the practices, apology and forgiveness, differentiate his ethic from what he terms the “liberal peace,”6 the “dominant paradigm of peacebuilding” (p. 288).. 2.1.2 Transitional Justice Mechanisms The mechanisms involved in carrying out transitional justice in the wake of a political transition or post-conflict situation are varied and their applicability and appropriateness. 6. The Lockean concept adopted by the West and prominent supranational organizations of a peacetime arrangement that includes free elections, constitutions that guarantee human rights and independent judiciaries, reform of police and military branches, establishment of free markets, and accountability for human rights violators (Philpott, 2012, p. 1-2).. 10.

(18) are a source of debate between different scholars. Olsen, Payne, and Reiter (2008) group the arguments for different transitional justice mechanisms into three separate approaches: “maximalists who support prosecutions as the best mechanism…, minimalists who consider amnesties the best mechanism…, and moderates who advocate truth commissions to produce positive results” (p. 3) Each of these approaches also proposes other, additional means of pursuing transitional justice, including reparations, vetting for official positions, apologies, institution building, and memorialization for victims. Among those that push for the maximalist approach, trials are seen as a means of. 政治大. establishing norms of accountability in a transitional society, and as a way to deter would-be violators from committing human rights abuses in the future (Mendez, 1997;. 立. Kim and Sikkink, 2010). There also exists the argument that both the rule of law in. ‧ 國. 學. civilized societies and standards set by international law necessitates prosecutions of human rights violators (Orentlicher, 1991). Finally, proponents of criminal trials point to their tendency to apportion accountability to individuals, thereby avoiding “the dangerous. ‧. culture of collective guilt and retribution that produces further cycles of resentment and. sit. y. Nat. violence” (Kritz, 1996).. io. er. The minimalist approach, on the other hand, argues that criminal trials in states where democratic institutions and the rule of law are still weak and where spoilers, those who. n. al. Ch. i n U. v. benefitted from the ancien regime, are still empowered, enforcing norms of criminal. engchi. accountability may have a negative impact on democratic consolidation (Snyder and Vinjamuri, 2003). Mendeloff (2004) asserts that simply not enough empirical evidence exists to determine whether trials or other truth-seeking processes actually have any effect, positive or negative, on peace and reconciliation, and that the arguments in favor of these measures tend to rest on assumptions based on faith, rather than on logic. The main standard for the minimalist approach, then, is reparations for victims. Peté and du Plessis (2007) note that reparatory justice may take a number of forms, including “restitution in kind, compensation, satisfaction, and assurances and guarantees of nonrepetition” (p. 15) and that the definition of these can be nebulous and hard to pinpoint. They argue that reparations are an “integral part of the obligation imposed on states by 11.

(19) international human rights law and humanitarian law” (p. 13) citing Article 8 of the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights (hereafter the ICCPR), among others. Similarly, De Greiff (2012) believes that reparations improve civic trust “by demonstrating the seriousness with which institutions now take rights violations” in that monetary remuneration has more material value than a verbal apology (p. 46). Hayner (2011) agrees that reparations are a valuable means of attempting to atone for the past. She mentions that money is only one way of compensating victims, that it can be linked to development policies, like social services or public works, noting “there may be a way to link the service delivery capacity of the economic development field with a community-based approach to reparations, presuming. 政治大. that this link is made explicit” (p. 166).. 立. The basis for the moderate approach is that some form of accountability for human rights. ‧ 國. 學. violations is necessary, but that a less retributive mechanism than criminal trials can ensure political stability in a transitional period. Truth commissions serve this purpose in that they “establish accountability, officially condemn past violations, and promote. ‧. restorative justice” and “at the same time they avoid the political risks associated with. y. Nat. prosecuting perpetrators” (Olsen, Payne, & Reiter, 2008). Hayner (2011) also notes that. io. sit. “their broader mandate to focus of the patterns, causes, and consequences of political. er. violence allows truth commissions to go further in their investigations and conclusions. al. n. iv n C study that surveyed the effects of thehTruth and Reconciliation e n g c h i U Commission on ethnic than is generally possible (or even appropriate) in a trial” (p. 13) Gibson (2004), in a. reconciliation in South Africa, found that, overall, these were positive. He concludes that “the truth and reconciliation process seems not to have had a negative influence among Africans, while having positive influences on whites, Coloured people, and those of different origin” and that this “indicates that the process has clearly been a net benefit to South Africa” (p. 215). Lastly, a growing portion of the literature on transitional justice has focused on the merits of what a number of scholars and NGOs have dubbed a “holistic” approach, or the use of multiple, overlapping mechanisms (Mendez, 1997; Olsen, Payne, & Reiter, 2010; De Greiff, 2012; Philpott, 2012). There seems to be a fairly broad consensus among 12.

(20) transitional justice scholars that this kind of approach is more beneficial than the use of only one mechanism or another, or a lack of any mechanisms at all. Mendez (1997) posits that accountability for human rights abuses gives rise to a set of obligations of the successor state to the victims of those abuses. The obligations, he notes, are “multifaceted and can be fulfilled separately, but should not be seen as alternatives for one another” (p. 255). His argument is that prosecutions and trials, in addition to other, peripheral instruments, must serve as the focal point of any approach towards transitional justice. In a similar vein, De Greiff (2012) in his chapter on theorizing transitional justice,. 政治大 whole” (p. 34) and that “the weakness of each of these measures provides a powerful 立 incentive to seek ways in which each can interact with the others in order to make up for maintains that each mechanism of addressing past human rights abuses are “parts of a. ‧ 國. 學. their collective limitations” (p.35) Furthermore, he states that each mechanism is closely connected in “bi-directional” relationships, and that the use of one naturally necessitates. ‧. the use of another (De Greiff, 2012, p. 37).. y. Nat. Philpott (2012) also argues for a combination of different mechanisms, which he. sit. classifies under the general practices of building socially just institutions,. er. io. acknowledgement, reparations, punishment, apology, and forgiveness (pp. 172-175).. al. iv n C complete one another, and weave together” and that “a surfeit h e n g c h i U of one practice cannot make up for a deficit of another” (p. 171). The end goal of these practices and transitional n. Reminiscent of De Greiff, he contends that “the practices complement one another,. justice in general, then, is to bring about reconciliation, “the broad restoration of right relationship with respect to the wounds that political injustices enact” (p. 288). Lastly, a large, cross-national empirical study undertaken by Olsen, Payne, & Reiter (2010) finds that two specific combinations of mechanisms positively affect a transitioned country’s democracy and human rights. The “justice balance” as they term it, consists either of amnesties and criminal trials for perpetrators (in that order), or amnesties, trials and truth commissions (p. 996). The second combination is especially effective in the case of a negotiated transition, as in that of South Korea or, to some extent, Taiwan (p. 1002). 13.

(21) To conduct this study, the researchers used five separate indices that measure human rights and democracy: the Freedom House Civil Liberties and Political Rights scales, the CIRI Physical Integrity index, and Amnesty International and the U.S. State Department’s Political Terror Scales (p. 998). They found that any other combination of mechanisms or mechanisms used alone either had a negative impact or no discernible effect on a newly democratized country’s human rights and democracy (p. 998). It is important to note that South Korea is named specifically in the academic paper produced from the justice balance study, in that it first instituted a policy of amnesty towards political prisoners under the final authoritarian leader, Roh Tae-woo, and then. 政治大. proceeded with both trials and truth commissions after democratization (p. 1003).. 立. 2.2 Theoretical Perspectives. ‧ 國. 學. This thesis sets out to detail the relative approaches to transitional justice of Taiwan and South Korea, as well as to determine some of the primary factors that have caused South Korea to seemingly perform much better in this area, despite the two having similar 20th. ‧. century histories and cultural backgrounds. A secondary objective is to determine what is. y. Nat. missing from the South Korean model, and how Taiwan can learn from the pitfalls of this. er. io. sit. model as it embarks on a renewed pursuit of justice for past human rights abuses. Five major contributing factors are identified in regard to the first research goal: 1) the. n. al. i n U. v. KMT’s continued grasp on power post-transition due to its comparatively stronger. Ch. engchi. position than that of Roh Tae-woo’s Democratic Justice Party at the time of democratization; 2) the three consecutive liberal presidencies in South Korea of Kim Young-sam, Kim Dae-jung, and Roh Moo-hyun; 4) the disparate cleavage structures of regionalism in South Korea in contrast to that of national identity in Taiwan 3) the divergent constitutional history of the two countries, as evidenced in their constitutional court systems; and 4) the time elapsed between incidents or periods of large-scale state violence and each country’s democratization process. This is based on a difference in the internal security apparatus in either country, and is related a given dictator’s threat perception (Greitens, 2016). The factors listed here are mostly of an institutional nature.. 14.

(22) In response to the second question, the conclusion is that South Korea’s comprehensive transitional justice strategy looks good on paper, but the mechanisms used have been, in varying degrees, somewhat toothless. South Korea also did not go through a process of vetting, something supported by most of the literature on holistic transitional justice (De Greiff, 2012; Mendez, 1997; Philpott, 2012), to bar those who had held positions in the previous authoritarian regime or security forces from participating in the new democratic government. The consensus among many scholars that a comprehensive approach to transitional justice, using multiple mechanisms that work in conjunction with one another, is. 政治大. preferable to using a less coordinated approach, provides a unique foundation for the subject matter of this thesis. It will play a role in considering how Taiwan can learn from. 立. the South Korean experience, and in determining an ideal approach to transitional justice. ‧. ‧ 國. 學. that either or both could follow in the future.. n. er. io. sit. y. Nat. al. Ch. engchi. 15. i n U. v.

(23) 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. 政治大. 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. 立. drastically exceed those undertaken by Taiwan, in both scope and sheer number. The. ‧ 國. 學. 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. sit. y. Nat. 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. er. io. that occurred during either countries’ period of authoritarian rule.. n. a. v. l C Justice, and Reconciliation 3.1 Korea’s Search for Truth, ni. hengchi U. 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. 16.

(24) 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. 政治大. 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. 立. Pro-Japanese Collaborators, and the Truth and Reconciliation Commission of Korea. ‧ 國. 學. (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. y. Nat. commission to investigate deaths that had occurred during the Park Chung-hee and Chun. sit. Doo-hwan military dictatorships was established. In 2000, the Act for Restoring the. er. io. Honor of Democratization Movement Involvers and Providing Compensation for Them. al. n. iv n C provided a definition for who was toh be considered to have e n g c h i U been involved in South Korea’s democratization movement (Cho, 2007). The following year, the Special Act for was passed. The law, in addition to performing the tasks evident in its name, also. 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).. 17.

(25) 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. 政治大. 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.. 立. 55). This could have had a significant effect on the amount of people who came forward. ‧ 國. 學. 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. Nat. sit. y. is antithetical to the common argument amongst transitional justice scholars “that truth. io. er. 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).. al. n. iv n C Secondly, notwithstanding its broad capacity to investigate h e n g c h i U 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 18.

(26) 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 ProJapanese 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. 政治大 2017), investigation of forced 立labor and conscripted Korean soldiers during the Pacific issue of Korea’s “comfort women” (Hanley, Personal Correspondence, February 17,. War (Minbyun, Personal Correspondence, February 7, 2017), as well as a desire for. ‧ 國. 學. 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. y. Nat. two bills titled the “Special Act to Redeem Pro-Japanese Collaborators’ Property,” passed. io. sit. in 2004 by the National Assembly and the “Special Act for the Inspection of Anti-. er. Nationalist Activities during the Period of Japanese Colonial Occupation” in 2006 (Baik,. al. n. iv n C h eissue Roh Moo-hyun to not only address the h i U but also of forced n gof ccollaborators,. 2012, p. 183). This and other legislation was adopted during the liberal administration of. 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.. 19.

(27) 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.. 政治大. 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. 立. the alleged collaborators. Many of these people and their descendants had benefited. ‧ 國. 學. 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. y. Nat. “Rhee and his allies…from the start” as they were “deriving political support from. sit. former collaborators” (Wolman, 2013, p. 33). Lastly, public opinion concerning the. er. io. Chinilp’a was largely affected by a series of legal cases in the late 1990s, in which the. al. n. iv n C ancestral land (Baik, 2012, p. 183; Cho, U 2016, p. 165). h e2007, h i Kim, n gp.c606;. court ruled in favor of the descendants of former collaborators’ in their claims to. 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 20.

(28) 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. 政治大. 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;. 立. Minbyun, Personal Correspondence, February 7, 2017).. ‧ 國. 學. 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,. Nat. sit. y. 2016, p. 166). Secondly, the Court claimed that the confiscation of these properties did. io. er. 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. n. al. Ch. i n U. v. did not violate due process of law, in that the descendants of pro-Japanese collaborators. engchi. 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 21.

(29) 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]. 政治大. 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. 立. year term, and according to the report it ultimately produced, its purpose was to promote. ‧ 國. 學. “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.. sit. y. Nat. These were. er. io. request[ing] relevant individuals to submit an affidavit and appear for inquiry, and. al. iv n C materials…conduct[ing] a field investigation in the h e n g c h i U place where the cause of a case has occurred…[and] issu[ing] an order of accompaniment to a person who n. relevant individuals and authorities to submit pertinent data and. 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). 22.

(30) 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”. 政治大. (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. 立. was at one point the standing commissioner of the TRCK, believes this is because they. ‧ 國. 學. 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, Daegubased 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. sit. y. Nat. 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. io. er. defamation suit (Personal Correspondence, February 17, 2017).. n. a. l C at Truth-Findingn i 3.2 Taiwan’s Official Attempts. hengchi U. v. In contrast to South Korea, “there exists no official Truth Commission or similar institution in Taiwan to formally address the issue of truth-finding” (Hwang, 2016, p. 173). Government-driven truth-finding has in fact been quite minimal up until the current Tsai Ing-wen administration. Instead, two separate research teams were formed to produce “study reports” on the 228 Incident based on the declassification of hundreds of official files. Both of these reports present their findings as “‘historical accounts’ instead of ‘legal facts’” (Ibid., p 173). These research teams were both composed solely of academics, rather than the combination of academics, lawyers, and community leaders that comprised the Truth and Reconciliation Commission of Korea. They produced reports, but had none of the powers of truth commissions like the Presidential 23.

(31) Commission on Suspicious Deaths or the TRCK. Additionally, they only focused on the 228 Incident, and not on the thousands of deaths that occurred after it during the period of martial law known as the White Terror. It should be noted, though, that a large amount of work focused on transitional justice was put in during the Chen Shui-bian administration between the years 2000-2008, despite the DPP at that time lacking a majority in the Legislative Yuan. A former human rights lawyer, Chen dedicated a large portion of his domestic platform to further democratization and implement more comprehensive transitional justice measures. According to Schafferer (2010), “the aims of [Chen’s] government policies were to. 政治大. separate the State from the KMT, to make people aware of the wrongfulness of the atrocities committed during the martial law era, to find ways of reconciliation, and to set. 立. preventive measures” (p. 25). These measures including declassifying thousands of. ‧ 國. 學. government files, commissioning the second report on the 228 Incident based on these newly-released documents, drafting laws on the issue of KMT party assets, rehabilitating victims’ reputations with the issuing of certificates of good citizenship, and attempting to. ‧. rid Taiwan of remnants of the authoritarian period by renaming places dedicated to. sit. y. Nat. Chiang Kai-shek and removing status of him (Ibid., p. 26). Still, truth-finding during this period unfortunately remained limited in scope and depth due to the continued. n. al. er. io. domination of the legislature by the KMT throughout Chen’s presidency.. Ch. i n U. v. However, only a few months after the DPP assumed control of the presidency and a. engchi. majority in the Legislative Yuan in 2016, a commission on ill-gotten party assets was formed and has been in operation ever since. A draft bill on transitional justice is currently awaiting passage in the legislature, which would “focus on judicial redress, legal remedy and collection of political archives,” as well as “deal with the misappropriation or illegal occupation of government properties” (Chiu, April 2017). Tsai also announced in December 2016 the commissioning of a report on the White Terror to be completed within three years, although no research team or organization has yet been announced. Despite having promised to establish a truth and reconciliation commission during her campaign and inauguration speech, no concrete moves have yet been made to do this. Overall, besides very actively pursuing KMT assets, the majority of 24.

(32) promises concerning transitional justice since Tsai assumed presidency have been extraordinarily vague, or have not seen a lot of positive action to ensure their realization. The three truth-finding efforts that have taken or are taking place in Taiwan are listed in detail below. A fourth section on the KMT’s attempt at postwar retributive justice concludes the first half of the chapter.. 3.2.1 Research Report on the 228 Incident (Ererba shijian yanjiu baogao, 二二八事件研究報告) (1992) In response to massive pressure from civil society groups to investigate the details of and. 治政大Subcommittee (Yanjiu ererba of Taiwan Lee Teng-hui formed the 228 Incident Research 立 shijian xiaozu, 研究二二八事件小組) under the auspices of the Executive Yuan in 1991. determine responsibility for the 228 Incident following democratization, then-President. ‧ 國. 學. (Su, 2013, p. 119). A major task of this group was to mull through the recently declassified documents related to 228 released from the Ministry of National Defense. ‧. (Shih and Chen, 2010, p. 107). The Examination Yuan also photocopied and stored these archives in the Academia Sinica’s Institute of Modern History, in order to provide the. Nat. sit. y. subcommittee with documentation for their consultation (Chang, 2009). The research. io. er. team, headed by Academia Sinica researcher Lai Jeh-hang, and staffed with several other Taiwanese academics, produced the “Study Report on the February 28 Incident” after. n. al. Ch. i n U. v. months of meticulous research. This was a major undertaking for an event whose mention had been taboo for so long.. engchi. The report described the 228 Incident as “truly a massive tragedy in modern Taiwanese history,” (Lai, 1994, p. 412), estimated the number killed “at between 18,000 and 28,000” (Hwang, 2016, p. 173), and outlined in great detail the factors leading up to the islandwide crackdown. It also did away with the notion that the uprisings that occurred in reaction to the assault of a woman selling contraband cigarettes was a “rebellion” or that those who took part in the backlash were “armed rebels” or a “mob” (Chang, 2009). While the authors do acknowledge the indiscriminate killing of benshengren Taiwanese by KMT soldiers sent in to pacify the uprising, as well as the rounding up and summary execution of suspects, it also pointed out the large number of innocent mainlanders who 25.

(33) were scapegoated and targeted for violence. This subethnic conflict between mainlanders and native Taiwanese deepened the divide between Taiwan and mainland China and caused a lasting enmity between the two groups, according to the report (Lai, p. 408). The Research Report on the 228 Incident was important in that it helped to effectively change the official historiography of a defining event in Taiwanese history, one that had been a taboo subject for the intervening years until democratization. While being very thorough and impartial, however, many at the time criticized it for its failure to more finely apportion accountability for the violent event (Shih and Chen, 2010, p. 108). It instead names Chen Yi, Peng Meng-chi, and Ko Yuan-fen as the party guilty of ordering. 政治大. and carrying out the bloody crackdown (Lai, 1994; Shih and Chen, 2010; Wu, 2005). In regards to Chiang Kai-shek’s involvement in how the uprising was handled, the report. 立. “avoids giving a clear answer by saying that Chiang was too busy in the civil war with. ‧ 國. 學. the Chinese communists at that time to closely look into the problem” (Wu, 2005, p. 10). The report also frequently mentions a lack of military discipline amongst KMT troops and the government-general and that Chiang was too trusting of Chen Yi, accepting his. ‧. request for backup troops without question (Lai, 1994, p. 411).. y. Nat. sit. 3.2.2 Research Report on Responsibility for the 228 Massacre (Ererba. al. n. (2006). er. io. shijian zeren guishu yanjiu baogao, 二二八事件責任歸屬研究報告). Ch. engchi. i n U. v. The election of opposition DPP presidential candidate Chen Shui-bian in 2000 opened the door for a more intensive accounting of martial law-era abuses. However, without a DPP majority in the Legislative Yuan, transitional justice was to be an uphill battle for Chen’s administration. One area in which his government saw some success was compiling a second research report on the 228 Incident in 2006. This new project was commissioned by the Executive Yuan and carried out by the Memorial Foundation of 228 (Caituanfa ererba shijian jinian jijinhui, 財團法人二二八事件紀念基金會), the “investigative organization established by the KMT government” (Shih and Chen, 2010, p. 109) in the early 1990s and also the nonprofit in charge of disseminating compensation payments to victims of the 228 Incident. The research team, 26.