Implications of Korea's Transitional Justice Experience

[Editor's Note]

Like many countries, Korea has experienced severe and systematic human rights violations. However, it has achieved significant results through various transitional justice policies. Human rights violations and transitional justice on the Korean Peninsula are crucial elements for democratic development due to the comprehensiveness of the issue area. Professor Kim Heon-jun of Korea University outlines Korea's experience with human rights violations and transitional justice, exploring the implications and limitations of this experience for other countries. The author argues that because the transitional justice attempted on the Korean Peninsula possesses both universality and particularity, it is important to discern and distinguish these aspects when exploring the international implications of Korea's transitional justice.

I. Introduction

Transitional justice refers to state responses to past human rights violations (Teitel 2000). In the 20th century, Korea, like many other nations, suffered severe and systematic human rights abuses. Unjust civilian casualties surfaced after democratization and were officially discussed in earnest after the Kim Dae-jung administration. Various transitional justice policies were employed, leading to many achievements. However, these also simultaneously provoked confrontation and antagonism regarding past events, as well as ideological conflict. Korea's experience is a problem that other countries could well encounter.

Transitional justice is referred to by various terms, including punishment, truth-seeking, rehabilitation of honor, and reparations. Although this principle was adopted by the UN in 2004 (United Nations 2004), its universal application to individual countries is controversial. Therefore, a comprehensive and detailed account of a country's experience is important for understanding the possibilities and limitations of transitional justice. This work has been undertaken by civil organizations, governments, and academia in countries such as the United States, the United Kingdom, Germany, the Czech Republic, and Korea (Bickford 2007; CEVRO 2021; Dancy et al. 2014).

The English term "transitional justice" has been translated into Korean as "gwandogi jeongui" (과도기 정의), "jeonhwangi jeongui" (전환기 정의), or "ihaenggi jeongui" (이행기 정의) (Cho Jeong-hyun 2014; Lee Byeong-jae 2015; Kim Heon-jun 2017). "Ihaeng" (이행) means 'to move to or change into another state,' "jeonhwan" (轉換) means 'to change to a different direction or state,' and "gwado" (過渡) means 'to move or change from one state to a new state.' These are synonyms. However, as "transition" in "transitional justice" is linked to the transition to democracy, and following the tradition of translating "transition" as "ihaeng" (이행) in Korea, it is referred to as "ihaenggi jeongui." Although the concept is unfamiliar, the phenomenon it describes is not alien to Korea. In Korea, it has been called "gugeosa cheongsan" (past-clearing), "chaegimja cheobul" (punishment of perpetrators), "huisaengja myeongye hoebok" (rehabilitation of victims' honor), and "jinsang josa" (truth investigation).

There is an event that well illustrates the state of transitional justice in Korea. In 2020, President Moon Jae-in attended the commemoration ceremony for the victims of the Jeju April 3rd Incident. In his commemorative address, the President emphasized 'internationally established universal standards' in resolving the April 3rd incident. The following day, the Chosun Ilbo argued that while the state should "rightfully" console, apologize to, and compensate civilians who were unjustly victimized, it must distinguish them from the rioters. What is interesting is that while the two perspectives on the April 3rd incident differ, the Chosun Ilbo also believes the state should "rightfully" console, apologize, and even "compensate" for unjust sacrifices.

The common ground between the two is that it is "rightful" and a matter of "internationally established universal standards" for the state to respond to severe human rights violations. The conservative media's mention of "consolation, apology, and compensation" for the April 3rd victims suggests that Korean society has reached a certain level of consensus on this matter. This implies that the Korean case has the potential to be presented as a model to the international community. This article aims to outline Korea's experience with human rights violations and transitional justice and explore the implications and limitations of this experience for other countries.

II. Human Rights Violations and Transitional Justice in Korea

Modern Korea experienced Japanese colonial rule (1910-1945), liberation and the US-Soviet military government (1945-1948), the Korean War (1950-1953), the Syngman Rhee dictatorship (1948-1960), the Second Republic following the April 19 Revolution (1960-1961), the May 16 military coup and the Park Chung-hee dictatorship (1961-1979), the assassination of Park Chung-hee and the Seoul Spring (1979-1980), the December 12 military coup, the May 18 Gwangju Democratization Movement, and the authoritarian regimes of Chun Doo-hwan and Roh Tae-woo (1980-1988), followed by the June Democracy Movement in 1987 and institutional democratization. During this process, numerous human rights violations occurred, including massacres, torture, forced disappearances, suspicious deaths, and legal and extra-legal killings. Even after democratization, remnants of authoritarian forces persisted, making proper redress for past grievances difficult for some time. However, efforts, albeit limited, that began with the civilian government reached their peak under the Kim Dae-jung and Roh Moo-hyun administrations. These efforts faced renewed difficulties under the Lee Myung-bak and Park Geun-hye administrations, but the Moon Jae-in administration continued active efforts by selecting "resolving past grievances in line with public expectations" as the third priority task among the 100 national tasks.

Human rights violations in Korea are diverse and heterogeneous. Having occurred over a long period, the perpetrators (Japanese colonialists, dictatorships, authoritarian regimes, democratic regimes) and the scale of each incident vary. The nature of the incidents (violations during suppression, violations during war, human rights violations against influential figures, violations during the enforcement of oppressive policies, etc.) and the scale of damage also differ. Incidents with over 1,000 civilian casualties include the March 1st Movement, the Kando Massacre, the Great Kanto Earthquake Massacre, the Jeju April 3rd Incident, the Yeosu-Suncheon Rebellion, and civilian massacres during and after the Korean War (including the National Defense Corps incident, prison inmate massacres, the No Gun Ri incident, collaborator massacres, US bombings, massacres by North Korean forces and sympathizers, and massacres within North Korea). Even using 100 people as a benchmark, there are the Daegu October Incident, the April 19 Revolution, the Brothers Home incident, the May 18 Gwangju Democratization Movement, and the Samcheong Re-education Camp incident.

In addition, there are many significant incidents, although civilian casualties did not reach 100. These include the Jeam-ri massacre, the Japanese military's sexual slavery system, forced mobilization, the Daegu February 28th Incident, the INHROC/Minchonghakryon incidents, the Gukbap Resistance, the academic greening project, the Seosan Pioneer Village, the Sabuk Uprising, the Silmido incident, the kidnapping of Kim Dae-jung, and the suspicious deaths of Jang Jun-ha and Choi Jong-gil, as well as military suspicious deaths. There were also attacks on civilians by hostile states, such as the shooting down of Korean Air Flight 007 in 1983 and the bombing of Korean Air Flight 858 by North Korean agents in 1985. While large-scale civilian casualties have decreased since democratization, human rights violations such as torture and fabricated espionage cases have continued.

Victims' families continuously demanded the punishment of perpetrators, truth-seeking, and reparations. Dictatorial and authoritarian regimes thoroughly ignored them and even suppressed them. The inhumane suppression by the Park Chung-hee regime of the Korean War Civilian Victims' Association, organized in 1960, is an example. However, after the civilian government, the process of addressing past grievances began in earnest with the establishment of the Committee for the Rehabilitation of Honor of Victims of the Geochang Massacre, among others. During the Kim Dae-jung administration, the Committee for the Investigation of Truth and Rehabilitation of Victims of the Jeju April 3rd Incident and the Presidential Committee for the Investigation of Suspicious Deaths were established. During the Roh Moo-hyun administration, the Truth and Reconciliation Commission, the Committee for the Investigation of Military Suspicious Deaths, the Presidential Committee for the Investigation of Pro-Japanese Collaborators' Activities, the Committee for the Investigation of Victims of Forced Mobilization during the Japanese Colonial Period, and the Committee for the Investigation of Pro-Japanese Property were established. During the same period, the National Police Agency, the Ministry of National Defense, and the National Intelligence Service established and operated their own committees. During the Moon Jae-in administration, the Prosecutor's Office and the Special Investigation Committee, the May 18 Gwangju Democratization Movement Investigation Committee, and the second Truth and Reconciliation Commission were established, and a committee related to the Yeosu-Suncheon Incident is being organized.

The situation in North Korea, which maintains a deformed system of one-party communist rule and the hereditary dictatorship of the Kim dynasty, is quite different. Massacres, murders, torture, forced disappearances, and forced labor have occurred. Since the great famine of the 1990s, known as the "Arduous March," there have been secondary abuses against North Korean defectors, forced repatriations, and abuses against North Korean women and children. Issues of forcibly abducted South Koreans and detained prisoners remain unresolved to this day. Representative examples of civilian casualties include the persecution of religious figures, the execution of the Gap-san faction, the massacre at the Changpyeong detention center, the Frunze Academy incident, the Shim-jo incident, the Songnim Steelworks massacre, and the Hoeryeong detention center massacre. Transitional justice emerged in North Korea as defectors began to reveal the reality of the situation. In particular, the term transitional justice was mentioned in the 2013 report of the UN Commission of Inquiry on Human Rights in North Korea, and issues of perpetrator accountability and truth-seeking began to be discussed domestically and internationally (Teitel and Baek 2013; Lee Gyu-chang et al. 2016). The following year, civil society began preparations to monitor North Korea, document human rights abuses, and prepare for regime change, including the establishment of the Transitional Justice Working Group.

As such, the scope of human rights violations and transitional justice on the Korean Peninsula is extensive. It spans a century chronologically and geographically covers South Korea, North Korea, Japan, Manchuria, and the high seas. The perpetrators also vary, including Japanese colonialists, South Korean dictatorial, authoritarian, and democratic regimes, North Korea, the Soviet Union, and the United States. Therefore, it is difficult to find a comprehensive model of human rights violations and transitional justice and its implications.

III. International Implications of Korea's Transitional Justice

Due to the comprehensiveness of the issue area, human rights violations and transitional justice on the Korean Peninsula are crucial elements for democratic development. As a transitional justice model, the Korean case has the following international implications:

1. Positive Effects of Transitional Justice: Establishing Institutions and Culture to Protect Human Rights and Democracy

Transitional justice has fostered and established institutions and a culture that protect human rights and democracy. Korea, more than most countries, has attempted to resolve past human rights violations by utilizing various committees (truth/reparations/investigation), criminal and civil trials, and reparation/compensation systems. Efforts have been made to offer government apologies, revise textbooks and official documents, restore victims' honor and provide reparations through retrials, excavate and commemorate victims' remains, establish memorial foundations, support victims and their families, and designate national memorial days (Kim Heon-jun 2017). These efforts have primarily addressed the grievances of victims and raised public awareness of human rights. Institutions like the National Human Rights Commission, established based on recommendations from various committees, and memorial foundations protect human rights and prevent past human rights violations from being distorted or denigrated.

Of course, self-assessments of the effects of domestic transitional justice are not very favorable, as victims and activists believe there is still much to be resolved and that progress is insufficient. For the Jeju April 3rd incident, remaining tasks include reparations and trauma healing. For the Gwangju May 18th incident, truth investigation and report publication are pending. For civilian massacres during the Korean War, the establishment of memorial foundations and research institutes are remaining tasks. Such sober evaluations and reflections must continue. However, separate from this, the achievements of transitional justice need to be objectively evaluated and disseminated.

2. Positive Impact of Ongoing Controversy: Synergistic Effects of Transitional Justice

Although the actors in Korea's transitional justice are severely divided by ideology, political orientation, region, age, and gender, they are ultimately members of the same community. Human rights violations and transitional justice have been major concerns of the community regardless of the government's nature. The intense debates surrounding past events also attest to public interest. Past human rights violations have never been resolved smoothly with broad consensus or without controversy. During the Moon Jae-in administration, there were controversies surrounding the law related to the Yeosu-Suncheon Incident and trials concerning comfort women and forced laborers. During the Lee Myung-bak and Park Geun-hye administrations, there were controversies over the song "March for the Beloved," reductions in support for the April 3rd incident, and a hasty agreement on comfort women. During the Kim Dae-jung and Roh Moo-hyun administrations, as various committees such as the Committee for the Investigation of Suspicious Deaths, the April 3rd Committee, and the Truth and Reconciliation Commission operated simultaneously, controversies arose whenever investigation results were released or related trials proceeded.

In the future, similar discussions will continue if progressives are in power, and when conservatives are in power, issues of North Korean human rights, abductees, and special mission operatives will be discussed. Interestingly, the experiences gained from pursuing transitional justice during one period have been transmitted to victims of other incidents, regardless of the government's political leaning, raising expectations. The experiences of the Jeju April 3rd Incident and the Truth and Reconciliation Commission influenced the Gwangju May 18th Incident, but were also transmitted to the Korean Air Lines Flight 007 incident and North Korean investigative agencies. The North Korean human rights investigation by the Transitional Justice Working Group led to an investigation into the overseas adoption of children. In other words, the experiences of truth-seeking, reparations/compensation, trials, and rehabilitation of honor have been mutually transmitted within the community, regardless of the nature of the issue, region, perpetrator, or scale, showing synergistic effects.

3. Transitional Justice as a Process, Not an Outcome

Transitional justice in Korea is ongoing and will continue to be so. The amendment and re-amendment of laws related to past grievances, the establishment of the second phase of the Truth and Reconciliation Commission 15 years after the establishment of the first, the ongoing investigations of the Jeju April 3rd Incident and the Gwangju May 18th Incident by local governments, the National Assembly, the Ministry of National Defense, and the Truth Commission, the separation of the Committee for the Investigation of Military Suspicious Deaths from the Committee for the Investigation of Suspicious Deaths, and the investigation of property after the investigation of pro-Japanese activities—all these processes clearly show that transitional justice cannot be resolved "once-and-for-all." Even in the case of the Jeju April 3rd Incident, after the official investigation concluded and the government report was finalized in 2003, there were investigations by the Jeju April 3rd Peace Foundation, documentation of the truth-seeking process, and investigations focusing on damages in the educational and religious sectors. All of these are processes of transitional justice, and they represent the settling and consolidation of human rights and democracy.

Of course, due to the long duration of many attempts, fatigue has increased, and depending on the nature of the ruling party, there are also countercurrents such as reduced support or the abolition of committees and projects. In such cases, social controversy arises, and opposing forces actively seek legal and political means to reverse the efforts of the previous government. However, all these processes of controversy and debate, failure and setbacks, opposition and new attempts are part of the development of human rights and transitional justice, and are important elements in the development of democracy. The Jeju April 3rd Incident, the Gwangju May 18th Incident, and the civilian massacres during and after the Korean War are all commemorated and transmitted not only as primary acts of massacre but also as secondary aggressions, such as the suppression of victims' families by dictatorial and authoritarian regimes and the obstruction of truth-seeking by military, police, and intelligence agencies.

IV. Limitations of Korea's Transitional Justice Experience

There are also limitations to discussing Korea as a model for transitional justice. These are all due to the particularities of the Korean case.

1. Divided System and Foreign Role

Korea's particularity and greatest limitation is its divided system. Division creates two problems. First, human rights violations in North Korea are ongoing, and no proper transitional justice has even been attempted. While the North Korea Human Rights Record Center, the Transitional Justice Working Group, and the Korea Institute for National Unification are investigating and preparing, actual discussions are only possible after some change occurs, however limited, in North Korea. Second, the divided system incites ideological attacks and divisions regarding the Jeju April 3rd Incident, the Yeosu-Suncheon Incident, and the Gwangju May 18th Incident, hindering complete truth-seeking in South Korea. Some predict that historical evaluation and commemoration of these incidents will only be possible after the division is resolved.

Another limitation is when human rights violations were committed by, or occurred with the acquiescence of, external forces such as Japan, the United States, or the Soviet Union. Discussions and policies regarding past human rights violations easily become issues of current diplomatic conflict. The diplomatic problems caused by Japan's strong response to recent rulings on comfort women and forced laborers are well known. The Jeju April 3rd Incident also began during the US military government period, leading to continuous demands for US responsibility and apologies, but it is uncertain whether the US will respond. Following the declassification of some US military secret documents, responsibility has been raised for the Gwangju May 18th Incident, citing US acquiescence to the new military regime. Of course, as seen in the controversies between Germany and Namibia, and France and Algeria, disputes over past human rights violations between imperial powers and colonies are not unique to Korea. However, it is our particularity, surrounded by a triple structure of Japanese colonial rule, US-Soviet military government, and international support for the war, that makes it difficult to disseminate.

2. Distant Reconciliation

The ultimate goal of transitional justice is to achieve social integration and reconciliation by reaching a consensus on the legitimacy, necessity, effectiveness, and expectations of these measures. As mentioned earlier, the existence of much controversy is not inherently negative. However, if there is only controversy and no progress toward reconciliation, there is no reason for other countries to follow this path. Of course, there have been meaningful reconciliation attempts recently surrounding the Gwangju May 18th Incident and the Jeju April 3rd Incident in Korea. The recent apology by the opposition party to Gwangju and visits to the memorial site, the visit of Roh Tae-woo's son, the testimony of perpetrators from the military and police to the May 18th Committee, and their individual apologies and reconciliations can be considered important, albeit incomplete, beginnings. In Jeju, there were also important milestones such as reconciliation and joint memorial services between the victims' association and the perpetrators' association, apologies from the Vice Minister of National Defense and the Commissioner of the National Police Agency, and joint visits by members of the ruling and opposition parties.

However, despite these reconciliations, there are still sharp conflicts regarding the scale and scope of support for transitional justice. Given the starkly different positions on rulings concerning comfort women and forced laborers, and the attacks on laws related to the Yeosu-Suncheon Incident and the Gwangju May 18th Incident, one cannot help but question how much time is needed to achieve meaningful social consensus. When discussing the international implications of the Korean case, it is necessary to distinguish between what has been agreed upon domestically, what has not yet been agreed upon, and what may never be agreed upon. Through cases like South Africa and others, we already know that there is a difficult-to-bridge gap between the implementation of transitional justice mechanisms and substantive reconciliation. Since it remains uncertain how reconciliation will be possible in Korea, the derivation of international implications is bound to have limitations.

V. Conclusion

The transitional justice attempted in Korea, and more broadly on the Korean Peninsula, possesses both universality and particularity. Human rights violations themselves exist in any political community, and the universal human experiences of imperialism, colonialism, two world wars, and the Cold War have exacerbated them. The Jeju April 3rd Incident, for example, shares similarities with the Greek Civil War, the Taiwan February 28th Incident, and the Indonesian massacres of 1965. Just as human rights violations are universal, so are the efforts to resolve them through transitional justice. Recent US racial issues (Tulsa massacre), Canadian/Australian indigenous issues, reconciliation attempts in Germany and Namibia, and Germany's ongoing efforts to denazify and international reconciliation efforts (Merkel's recent visit to Auschwitz) demonstrate this.

However, there are also clear particularities in Korea's transitional justice. The recent decisions by the South Korean judiciary regarding victims of forced mobilization and comfort women, which have affected not only domestic politics but also the sensitive South Korea-Japan relations, are one example. The divided system between North and South Korea is also a unique factor. In all countries, issues of past human rights violations are sensitive due to perpetrators, victims, ideological conflicts, and ongoing conflicts, but in Korea's case, they tend to become unusually fuel for political disputes. The recent controversy over the exhumation at the Seoul National Cemetery, the debate over the enactment of the law honoring contributors to democratization, the passage of the special law on the Yeosu-Suncheon Incident and opposition to it, and the controversy surrounding the Historical Distortion Punishment Act clearly illustrate this.

When exploring the international implications of Korea's transitional justice, it is important to identify and distinguish the universality and particularity of the Korean case. However, there is one point to be cautious about. We must not become so engrossed in the universal image we have set for ourselves that we ignore the possibility of expanding what we consider particular into the universal. Korea has been influenced by the transitional justice experiences of other countries such as South Africa, Taiwan, and Argentina, as well as by international legal trends such as the development of international criminal law and the establishment of the International Criminal Court, and has adapted and developed them. Conversely, Korea's transitional justice experience, including its developments and achievements as well as its controversies and conflicts, will contribute in some form to creating new international trends.

Specific recommendations can be made to countries considering transitional justice policies:

First, recommendations related to transitional justice concerning the settlement of colonial legacies. Korea has established committees to restore victims' honor and provide reparations. While a claims agreement was reached with Japan, recent independent judicial rulings and continuous civil society demands have led to conflict with Japan. For countries facing similar issues, this suggests that dealing with past human rights violations can become a current diplomatic issue. Human rights awareness and the development of democracy may not always align with effective foreign policy and can sometimes conflict. However, the comfort women issue is not only a colonial issue between Korea and Japan but also a major trend in the development of international human rights norms, such as women's rights, and a new principle of international law, victim-centeredness. Therefore, it must proceed in parallel with various political and diplomatic solutions that can resolve short-term national conflicts.

Second, transitional justice related to human rights violations during the Korean War and the authoritarian period. Korea has pursued various policies over a long period to address severe human rights violations during the pre-liberation, Korean War, and dictatorial and authoritarian periods. In particular, efforts have been made to uncover human rights violations through the overlapping establishment of various truth commissions at central and local levels, and between civil society and the government. This has, of course, drawn criticism for wasting national finances and earned the stigma of a "committee republic" from opponents. The various truth investigations and committee operations may appear to be conducted haphazardly without central command. However, over time, from a long-term perspective, all these processes converge in a positive direction toward the development of democracy and human rights and the remedy for victims. Therefore, countries facing similar issues need to continue truth investigations at any level—central and local, civil and governmental—and preserve the records as a basis for future truth commissions, trials, reparations, and compensation. Furthermore, this work will provide legitimacy for the reform of major power institutions such as the military, police, and intelligence agencies at an appropriate time in the future. ■

References

Kim Heon-jun. 2017. “The Diffusion of Transitional Justice Norms and Their Effects: Focusing on the Case of Korea.” *Journal of Korean Politics* 26 (1): 101-26.

Lee Gyu-chang, Kim Heon-jun, Do Gyeong-ok, and Baek Beom-seok. *Measures and Tasks for Investigating North Korean Human Rights Violations: Focusing on Criminal Prosecution for Crimes within the Jurisdiction of the Rome Statute*. Seoul: Korea Institute for National Unification.

Lee Byeong-jae. 2015. “Transitional Justice and Human Rights.” *Journal of International Politics* 55 (3): 85-121.

Cho Jeong-hyun. 2014. “Transitional Justice and Korean Peninsula Unification.” *Seoul Journal of International Law* 21 (1): 25-42.

United Nations. 2004. “Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies.” UN Doc. S/2004/616.

Teitel, Ruti G. 2000. Transitional Justice. Oxford: Oxford University Press.

Teitel, Ruti G. and Bum-Seok Baek. 2013. Transitional Justice in Unified Korea. New York: Palgrave Macmillan.

Dancy, Geoff, Francesca Lessa, Bridget Marchesi, Leigh A. Payne, Gabriel Pereira, and Kathryn Sikkink. 2014. “The Transitional Justice Research Collaborative Dataset.” www.transitionaljusticedata.com(Accessed September 19, 2020).

Bickford, Louis. 2007. “Unofficial Truth Project.” Human Rights Quarterly 29 (4): 994-1035.

CEVRO. 2021. “Memory of Nations: Democratic Transition Guide,” http://www.cevro.cz/en/241492-guide (accessed August 27, 2021).

■ Author: Kim Heon-jun_ Professor, Department of Political Science and International Relations, Korea University. He graduated from Seoul National University with a degree in Diplomacy and earned a Ph.D. in Political Science from the University of Minnesota. He previously served as Associate Professor and Senior Researcher at Griffith University, Australia, and as Visiting Assistant Professor at St. Olaf College, USA. His related research includes The Massacres at Mt. Halla: Sixty Years of Truth-Seeking in South Korea, Transitional Justice in the Asia Pacific, and “The Prospect of Human Rights in US-China Relations: A Constructive Understanding.”

■ Responsible Person and Editor: Yoon Ha-eun_ EAI Research Fellow

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