Transitional Justice in the Asia-Pacific (36 page)

Both elites and the public vehemently protested against the decision and, at the same time, information about hidden assets of Roh was disclosed.
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President Kim Young-sam, who was initially against the criminal prosecutions of two former presidents, finally supported the special act, which removed the statute of limitations and provided an opportunity for retrial of those who had been falsely convicted.
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Both Chun and Roh, along with the fourteen other generals, were convicted but later pardoned by President Kim Young-sam, with the consent of the then-president-elect Kim Dae-jung, as a token of forgiveness and reconciliation
.
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Another widespread abuse of state power – the deaths and disappearances of students, activists, and politicians – received attention under
President Kim Dae-jung
. The Presidential Commission on Suspicious Deaths (Suspicious Death Commission) was created in 2000 and served two terms until 2004.
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The commission was set up to investigate and find the causes of deaths suspected to have been carried out directly and indirectly by government agents. The commission aimed to find the causes of
suspicious deaths, especially in cases where suicide or accidental deaths were falsely alleged. In 2002, the commission concluded its first term, but because many cases were left unresolved, it began a second term in 2003
.

In addition, between 2004 and 2005, the police, the Ministry of Defense, and the National Intelligence Service (formerly known as Korean Central Intelligence Agency) established an internal commission to investigate past human rights violations.
⁹⁵
In 2005, the TRCK also investigated remaining cases of suspicious deaths and disappearances. In 2006, a special commission was set up to investigate suspicious deaths that had occurred within military
ranks
.
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South Korea used criminal prosecutions, truth commissions, and reparations to address past abuse of state power. Truth
commissions stand out as the most frequently used option, with at least ten commissions. Since most truth-seeking efforts have been made in a period of less than ten years, it is too early to make a strong statement about the impact of these efforts. However, three of them – the Jeju Commission, the Suspicious Deaths Commission, and TRCK – stand out as prominent cases in terms of their extensive mandates, the number of reported victims, the authorities and resources of the commissions, the social debates and controversies these commissions created, and the media attention these commissions drew throughout their truth-seeking and reporting process. In this section, I explore both the achievements and problems of the transitional justice process in South Korea, focusing on the truth commission experience.

Truth commissions in South Korea have revealed the systematic and gruesome nature of the abuse of state power. New documents and testimonies
were discovered and previously unknown aspects of civil massacres revealed. For instance, the Jeju Commission revealed that 80 percent of victims were killed by state agents.
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Most victims were in their teens and twenties, but 12 percent were civilians under the age of 10 (5.8 percent) or over the age of 60 (6.1 percent).
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The percentage of children and aged victims clearly indicates the indiscriminate nature of the killings. The TRCK also confirmed civilian massacres during the Korean War, such as the nationwide preventive detentions and summary executions of former communists immediately after the outbreak of war.
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These civilian massacres have not been entirely unknown in South Korean society. After democratization, individual scholars, local newspapers, associations for victims, and local activists and research organizations have continuously published reports and carried out awareness campaigns. Truth commissions and official reports have given an official status to the facts of civilian massacres and confirmed information that was previously private by establishing the facts in a public forum. Rumors and conjecture about civilian massacres during the war are no longer simply opinion or anti-government agitation: the facts are now established in several official government documentations.

Truth commissions not only revealed the truth of individual cases, but also revealed the systemic nature of state abuses. For example, the Suspicious Deaths Commission confirmed systemic human rights violations under the authoritarian regimes and further identified two key causes of suspicious deaths.
¹⁰⁰
First, state power was misused to protect and prolong the regime rather than to serve the public good. Second, government bodies responsible for monitoring and protecting the citizens’ basic
political and civil rights not only failed to fulfill their mission, but also acquiesced to government abuses and were even involved in concealing, distorting, and manipulating the truth related to suspicious deaths.

With the release of the report, truth commissions also released various policy recommendations, and this resulted in some visible achievements and policy changes. The Jeju Commission suggested seven policy recommendations: that the government issue an apology, declare a memorial day, use the report to educate students and the general public, establish a memorial park, provide essential living expenses to bereaved families, support excavations of mass graves, and continuously support further investigation and commemoration projects.
¹⁰¹
Similarly, the TRCK came up with three comprehensive recommendations in 2009.
¹⁰²
It recommended that the government enact a special law to make reparations to the victims, establish a permanent research foundation to continue the investigative work and promote reconciliation, continue to unearth mass-murder sites, and collect and properly bury the remains of victims.

In quite a few cases, official apologies were issued. For example, in the Jeju case, President
Roh Moo-hyun made an official apology immediately after the release of the report, which marked the first apology issued by the head of state regarding past abuses of state power.
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Moreover, Roh visited Jeju on April 3, 2006, participated in a memorial service for the victims, and issued another apology for the events. The TRCK also recommended that the government apologize – as of 2010, fifty-two official apologies have been issued to individual victims.
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Most
apologies were issued by the local police chief and low-ranking military commanders, but in one case President Roh issued an apology to Ulsan
victims.
¹⁰⁵

Official governmental records, history textbooks, and major encyclopedia entries now reflect these changes by incorporating the findings of the commissions.
¹⁰⁶
Politicians and public officials are more cautious, and use terms and vocabularies reflecting a more balanced and neutral understanding of what happened in the past. Simple denial or ignoring of the past abuses is no longer a valid or legitimate response. A recent incident that occurred in the course of the National Assembly election illustrates the power of commission activities. The ruling Saenuri Party
nominated Lee Young-jo as a candidate for Gangnam district, the party's traditional stronghold. After a few days, however, the party had to withdraw its nomination over the controversies triggered by Lee's use of terms like “rebellion” or “revolt” when referring to the Jeju 4.3 events and the Gwangju democratic movement.
¹⁰⁷

In addition, although still far away from being perfect, several victims cleared themselves of the past false convictions.
The TRCK recommended retrials in forty-two cases, with eighteen victims having cleared their names of false convictions.
¹⁰⁸
Several individual victims filed lawsuits against the government for reparations, and some of them have been successful in receiving awards of large damages. In the Jeju case, a minimum level of monetary subsidy was selectively given to the victims
and their family members who had been suffering economic hardship and physical and mental illness
.
¹⁰⁹

Memorials have been built, and museums are now full of remains, documents, art, and sculptures containing the collective memory of the dark past. For instance, the Jeju Commission has been engaged in three key commemoration projects. The earliest commemoration project was mainly focused on creating a memorial park and museum. At the same time, the commission launched a long-term excavation project in 2006 to discover mass graves and find the remains of victims.
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By 2010, eight out of 151 mass graves had been unearthed, with the remains of more than 400 victims discovered so far.
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Similarly, the TRCK launched the exhumation of thirty-nine mass graves in 2007, and the remains of the dead provided sufficient evidence of indiscriminate killings to draw national and international media attention
.

Nevertheless, the truth-seeking process was neither smooth nor without side effects. Earlier truth commissions – a special commission to investigate the Japanese collaborators in 1948 and a congressional commission to investigate the civilian deaths during the Korean War in 1960 – ended in failure. Premature truth-seeking efforts made under the weak and insecure democracy were often bogged down by endless ideological and political debates. The congressional commission showed that, when truth commissions are established immediately after transition, those who were involved – directly or indirectly – in the past abuses can still exert influence over the commission's activities or even participate in the commission.

Failed commission activities have two dangerous consequences. First, once a commission has been set up and disbanded without any substantial results – like the special commission in 1948 – there is a danger that this failed experience will seriously undermine future efforts. The fact that it took almost forty-five years to re-establish a commission to address the same issue provides us with an important lesson. A failed attempt allows the perpetrators to falsely claim that the matter has already been investigated. In other words, past investigations – even if incomplete, can be used as an excuse not to pursue a full-scale and thorough investigation in the future. A failed attempt can also give the public the mistaken impression that a full investigation has been carried out, and there is actually not much to be revealed.

Second, the South Korean case shows that failed attempts could bring about a serious counteroffensive if the regime relapses to autocracy. Earlier attempts in 1960 were met with severe repression, as with the coup of Park Chung-hee in 1961. Leaders of the victims movement were arrested and sentenced to long prison terms or even death. In many places, evidence of the massacres was destroyed by the local and military police. In Daegu, for instance, a massacre site was buried deep underwater through the construction of a reservoir.
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Police even desecrated mass graveyards, destroyed monuments, and dug up and burned the remains of the dead.
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Identical incidents occurred nationwide, providing undeniable evidence that the order came from the top.

Late and more recent truth commissions had different problems. For example, both the Jeju Commission and the TRCK were mandated to investigate fifty-year-old atrocities, and this led to two additional difficulties. First, most of the key witnesses were already dead or were too old to give testimony, and most of the key documents had been either destroyed or lost by the time of investigation. Second, both commissions met with
strong resistance from the conservative and anticommunist element of society – especially from the military and police as for more than fifty years the anticommunist regimes had effectively suppressed the truth, painted the victims as communists, and justified the crimes of the military and police.

The challenge from the conservative groups existed before, during, and after the commission's activities, and in both commissions attack came from both inside and outside. For example, the opponents – mainly retired military and police personnel and conservative elites and organizations – attempted to frustrate the activities and accomplishments of the Jeju Commission. The opponents made appeals to the Constitutional Court against the special act in 2000, the official report, and the presidential apology in 2004.
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Although the court dismissed them all, these appeals still had a negative and constraining effect on the activities of the commission.

The TRCK
also suffered conservative resistance in the course of its activities, especially during its term under the conservative Lee Myung-bak administration. The effectiveness of the TRCK's work was particularly compromised, it is said, by President Lee's nomination of a new chairperson and other commissioners who were less enthusiastic about the commission's activities. Not only the military and police, but also state officials, became uncooperative with TRCK requests for the documents.
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The TRCK also had its budget for the last year cut significantly by the government
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and, although the TRCK had a right to
request an extension of its mandate for up to two years, its new chairperson hurriedly closed it down.
¹¹⁷

Truth
commissions also have an innate weakness because they are mostly created as a result of political compromise between the conservative party, representing the military and police, and the progressive party, representing victims and activists.
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The conservative party tried hard to weaken the TRCK in the first place, first by failing to give it sufficient investigative powers, and second by expanding its scope of investigation beyond its ability and resources
.
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In the Jeju case, although victims and activists demanded that the commission be granted more power to enhance its effectiveness – such as the power to search and seize, to issue warrants or to request retrials – none of these was adopted in the final bill. Both commissions were empowered to request access to government files but did not have any enforcement power when government branches or organizations rejected such requests.
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Both commissions had the power to request interviews with witnesses, but they did not have any strong enforcement mechanism – other than issuing fines – to summon witnesses when they refused to cooperate. Opponents and supporters alike have questioned whether all these truth-seeking projects could have been carried out effectively, given the limited budgetary and human resources available. Even proponents of these processes have worried that the multiplicity and breadth of truth-seeking efforts might cause public fatigue with transitional justice mechanisms, or that it could precipitate a severe backlash by opponents of these efforts
.
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