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Tuesday, December 8, 2009

Achievements and Tasks of TRCK's Activities

One week ago, Professor Lee Young-jo (Kyunghee University) was appointed President of the Truth and Reconciliation Commission for a two year term, after serving as a commissioner for the organization since 2005.

Today, his predecessor Ahn Byung-ook released the comprehensive statement below.

As we saw earlier, great achievements, but also strong resistance from people who basically "do not understand the development of democracy and social changes, and instinctively are afraid and are refusing their survival". People who don't understand that it's not anymore a question of political fights between "commies" and "republicans", but all about saving their beloved country and helping "most ordinary people" in total despair.

"In consideration of this situation and the duty of the government in reconciliatory measures, the government should establish a broad and fair special law on reparation and compensation for victims which would be a more fundamental approach to this issue". It's time for Korea to prove it is a great democracy with a sense of justice.

Seoul Village 2009

Achievements and Tasks of TRCK's Activities

Ahn, Byung-Ook, Former President of Truth and Reconciliation Commission, Republic of Korea (TRCK)

1. Activities of TRCK

The mission of the TRCK is to investigate cases of human rights violations and suspicious deaths due to anti-democratic or anti-human rights behavior and to bring to light distorted or hidden truths. The Commission specifically focuses on the massacre of innocent civilians during the Korean War and the realities of human rights violations during the oppressive era of the authoritarian regime. Through this work, the hidden or distorted truth of the past is uncovered.

Until now, the Commission investigated cases filed by the victims or bereaved families. Within one year after its launching, it received around 11,000 petitions. Among these petitions, human rights violations comprised 300 cases eligible for investigation and Korean War period massacres comprised 9,100 cases. Leftist groups, such as the North Korean People’s Army, committed 1,500 civilian massacres and South Korean soldiers and police committed 7,100 massacres. As of September 2009, the Commission completed 5,000 cases related to wartime massacres and 120 cases involving human rights abuses. Most of the findings verified the petitioners’ claims. The Commission can also investigate historically significant matters without formal petitioner requests but this hasn’t yet been initiated.

The number of truth-finding cases mentioned above is based on individual petitioners. However, in the case of civilian massacres, the cases are classified into similar categories and combined into regional units. Even for cases of human rights violations, a single case would involve many people and require a combined investigation. For a period of four years, approximately 240 staff handled a total of 400 cases. The scale, characteristics, and difficulty of each case vary widely from one another, so it is difficult to put any meaning to these statistical figures.

The 9,100 cases of civilian massacres committed by leftists and rightists during the Korean War represent only a small portion of the total death toll that is expected to reach several hundred thousand. This indicates that most of the bereaved families have not petitioned for investigations.

First, many families were unaware of the Commission’s past settlement activities, and therefore claimed they could not petition for investigations. Upon hearing news of the Commission’s activities, they have recently begun telling their stories of victimization and are pressing for additional truth-finding investigations.

In 2008 and 2009, the Commission conducted a survey in 10 cities across the nation on the status of victims. A total of 10,916 victims were identified through interviews with local residents. However, there are only 490 petitioners who filed for investigations. The scope of the survey was limited to available witnesses who could identify the victims. Without witnesses, this suggests many more victims remain unaccounted for. Nevertheless, based on this estimate of eligible victims, only 5% petitioned for truth-finding investigations.

However, not all families who failed to apply for investigations did so due to a lack of knowledge of the Commission’s existence. Due to lingering anti-communist sentiment in society, people remain fearful that investigations may only lead to further discrimination. If a soldier or police officer killed a family member, people may assume the victim was guilty of anti-government leftist activities. Even if this victim was an ancestor, society may label him or her a leftist and ostracize the descendants.

After the April 1960 Uprising, bereaved family members seized advantage of the dictatorial regime’s expulsion and began to publicize the issue of Korean War period civilian massacres. Two years later, they found themselves imprisoned and executed by the May 16 military regime. A primary reason for the lack of petitions is people’s passive response that nothing special can be achieved by reopening old matters. The victims and bereaved families do not want to resurrect the painful memories they have learned to lock away in the furthest corner of their hearts.

For the bereaved families of the victims of civilian massacres, the passing of time has been so merciless that it is difficult for them to trust the value of fact finding conducted at the state level. Therefore, the Commission’s truth-finding efforts and activities can close the divide between the victims’ sentiment and the necessity of past settlement.

2. Truth-Finding of Civilian Massacres during the Korean War

The aspect and character of the massive killings of the Korean War differ depending on the period of occurrence.

The conflict and confrontation that arose during Korea ’s division led to a wave of violence and massacres. The U.S. Army Military Government and the Syngman Rhee government initiated operations to eliminate the leftist forces at the root. The massacres that followed marked the beginning of the mass killings that would later occur.

After these operations, the Syngman Rhee government, which became an independent government after the division, embarked upon a nationwide roundup of leftist activists. The government established the Bodo League (National Rehabilitation and Guidance League, Gukmin Bodo Ryeonmaeng, 國民輔導聯盟) organization as a means to assimilate leftist forces into the new regime. Tens of thousands of people were either forced to join or voluntarily subscribed regardless of their ideology or thoughts. However, after the Korean War erupted, the Bodo League served a different function. After the North Korean invasion, the Rhee administration ordered the annihilation of all Bodo League members for fear that they may cooperate with enemy forces. Accordingly, tens of thousands of people nationwide were sequentially detained and massacred without any clear reason. In addition, hundreds of alleged communists imprisoned in jail were executed.

The North Korean military and leftists groups’ retaliation followed these mass executions. During North Korea ’s occupation of South Korea , North Korean soldiers killed rightists and the leaders responsible for leftist oppression during the Syngman Rhee regime. This coincided with the Bodo League victims’ family members retaliating and murdering rightwing activists and their families. Three months later, when the North Korean military retreated, the number of atrocities continued to climb. The North Korean military had a list of members that constituted a core axis of the South Korean government. They, along with leftists groups, massacred those on the list. The Korean War was not a war fought over a battle line separating ally and foe. It consumed the entire nation in a chaotic battlefield with the frontline constantly changing day and night. The fighting did not distinguish between soldier and civilian, which led to the unjustly killing of many innocent civilians by bullets and bombs. As North Korean soldiers and leftist forces took to the mountains in guerilla warfare, many civilian families were killed as battles erupted between guerilla forces and the South Korean military and police officials. The U.S. forces reckless bombed and strafed near fleeing villagers while U.S. soldiers killed people based on the suspicion that enemy forces were hiding among civilians.

The South Korean military and rightwing police officers committed retaliatory killings after they regained the capital. Those who joined the North Korean forces or were forced to cooperate were labeled as traitors and killed. Even civilians participated in the madness of reprisals as they killed their neighbors.

The blind massacre of fellow villagers who share the same religion, blood, and politics is unheard of anywhere else in the world or in history. This kind of massacre took place without exception in all parts of the country. Irreparable resentment against neighbors has been born due to the massive killings and our society is one of extreme confrontation due to the destruction of community relationships. As a result, the Korean peninsula remains the last remaining vestige of the Cold War era and shows a strong presence of Cold War order and ideological conflict.

3. Truth-Finding of Human Rights Violation by Public Power

The human rights violation cases to be addressed by the Commission are fabricated espionage, oppression of the democratization and labor movement, suspicious death cover-ups, and other forms of victimization such as torture, cruel treatment, illegal detention, and extortion of property. Among the 620 petitions received, about 300 are eligible for investigation. In particular, the cases of spy fabrication are of great interest. In one case, fishermen who were kidnapped by North Koreans were suddenly interrogated by authorities on espionage charges and sentenced to lifetime imprisonment after returning home 10 years later. All of them were arrested without warrants and illegally detained by investigators for 40 to 90 days. During that period, they were subjected to murderous torture until they submitted false confessions. Once the fabrication was complete, the national security agencies announced that they had arrested spies who were secretly operating for years and the press heavily publicized the announcement. The Park Chung Hee and Chun Doo Hwan regimes fabricated spy incidents as a means of social control during the 1970s and 80s. In this process not only did investigators receive rewards for capturing spies, but prosecutors did not hesitate to indict the accused as written in the investigation records, and judges gave guilty verdicts despite having knowledge of innocent people being coerced to submit false espionage confessions. However, the kidnapped fishermen who were framed as spies could barely write their names due to a lack of education and most lacked any self defense capabilities. This was clearly a case where intellectuals conspired to make simple and honest people scapegoats.

In a similar case, many Korean-Japanese visiting Korea to study and workers traveling back and forth to Japan who had contact with the Pro-North Korean Residents’ League in Japan were accused of espionage. The fabrication process of these cases was the same as the previous example.

Victims felt greater despair when they saw that society, and even their neighbors, ignored their appeals. Most cases of political oppression received public attention and became social issues despite the strong regulation of the authoritarian regime. However, compared to that, these truly unfair and tragic cases of human rights abuses were even ignored by close kin. It is only now, that a means for settling past injustices by revealing the truth through the Commission’s investigations has emerged.

4. Evaluation of TRCK Activities

Including the incidents above, retrials of cases investigated by the Commission are being held at the moment to reverse previous guilty rulings. Until now, a total of 46 cases including spy fabrication cases have been recommended by the Commission for retrial, of which 26 have been accepted by the court. Already 17 have been ruled upon, of which all were ruled to be not guilty. Each court issued a separate letter of apology in addition to its not guilty verdict. For instance, the retrial court for the Kim Yang Gi spy fabrication case criticized that, “the evidence submitted by the prosecution has no evidential power or credibility, yet throughout the past five court proceedings, no court has appropriately assessed this information.” Furthermore, “looking back on this case, the evidence submitted here is empty and futile. However, the military investigators, in order to come up with this evidence, restrained the physical freedom of the people, a freedom which is the basis of our nation’s existence, without any grounds, and it is difficult to say that the prosecution, the spokesperson for public benefit, has done its job fully. Above all, the court which is the ultimate protector of human rights, despite its five court proceedings which led to the supreme court, has been consumed with the false images made by empty evidence while blocking its eyes and ears to the claims of the defendant and its attorneys which have been pointing out these wrongdoings. The degree of human rights abuse to the defendant by the format of investigation and ruling is too serious to dismiss this as something that could happen in the harsh period….” This ruling explains well the process of spy fabrication, and belatedly expresses its regret that human rights have been violated due to the judiciary format. If the court had bravely adhered to this attitude in the past, the many violations of human rights would not have occurred.

The late President Roh Moo Hyun also apologized to the Bodo League victims. “As the President, I would like to sincerely apologize on behalf of the nation for the illegal actions committed by state power at the time.” On the occasion of the President’s apology, the victims and families of the Bodo League filed litigations against the country for reparation. In addition, a memorial service was held for the victims where the memorial addresses of the Minister of National Defense and the Police Commissioner were read on behalf of the military and police who were responsible for the atrocities. This can be seen as the least the state could do to comfort and apologize to the bereaved families.

On the other hand, there are also many forces that are actively against the activities of the Commission. First of all, the Public Prosecutors’ Office, which is the central organization dedicated to the protection of human rights, stated that state agencies such as the National Assembly, court, and administrative offices are not required to implement the recommendations of the Commission because there is no legislation that stipulates that other state organizations must mandatorily follow the decisions of the Commission. When the Seoul High Court made its ruling on the retrial of the Suicide Note Ghostwriting Case it announced that, “the truth-finding decisions of the TRCK are also new evidence that can prove innocence.” However, in the “Statement of the Grounds for Immediate Appeal” the prosecution said that the Commission’s decision was not “clear new evidence that could prove innocence” and strongly requested that the court discard the Commission’s decision. Of Course, the TRCK is not a body that gives instructions or orders with authority as mentioned by the prosecution. It only recommends based on discovered truths. Therefore, if the truth is respected, the decisions of the Commission must also be respected. However, the prosecutors are claiming that because it is the truth discovered by a Commission with low authority, it must be excluded.

Meanwhile, at the retrial of the Shin Gwi Yeong family spy fabrication case last August at the Busan District Court, four people including Shin were pronounced innocent. However, one former high ranking official of the anti-communism investigatory agency that conducted the investigations said, “This is a formal act of confirming the decision of the TRCK which is run by violators of the past National Security Law.” He states that by ruling this case of unreasonable human rights violation by torture and coerced investigation, the national police force has become an institute of oppression, and anti-communist investigators have automatically been disgraced as torturers. Furthermore, this official asked, “what meaning does the three special promotions for contribution to national security and the many medals and commendations now have?” He was disappointed that the people who gave their lives to fight communism were now being treated like criminals and receiving insults and criticism. (Refer to the Dongnipsinmun article of September 4, 2009)

This is most likely the common opinion shared by most of the people who worked at security agencies in the past. To people who have lived through the structure of North-South confrontation with the anti-communism logic of the Cold War, the changes we experience today is something inconceivable. It may be the case that these people now harbor a sense that our nation has come to a truly threatening situation with the disquieting forces they tried so hard to eliminate now operating secretly in all seams of our society. They do not understand the development of democracy and social changes, and instinctively are afraid and are refusing their survival. It is none other than the TRCK which is leading the change that they are so afraid of and toppling the stronghold they have built so hard. So, the TRCK is currently the target of these conservative forces.

Those that have applied for truth-finding investigations are also criticizing the activities of the TRCK. They claim that no satisfactory results are being produced at all. “The TRCK did not conduct thorough investigations into suspicious deaths or oppressive agencies such as associated police, the National Intelligence Service, or the Defense Security Command.” Petitioners protest that if the investigations end here, “the TRCK will degenerate into a silent onlooker of military dictatorship and become one of the wrongdoers.” Many individual petitioners as well downplayed the Commission’s investigations as one that could not even identify the proper offender.

Through the Commission’s investigations we were able to newly identify the reality of this nation’s “past incidents” which were hidden and glossed over for the past 60 years. Our past was one interspersed with truly indescribable suffering and tragedy which took ordinary people as its main prey. It was not the intellectuals, influential figures, or leaders of the resistance that were sacrificed, but the most ordinary people with no particular affiliation to any side that were sacrificed amidst the turbulence. We were only able to confirm that gloomy reality, but failed to inquire into specific reasons or clearly identify the true parties responsible. Also, we were limited to only pronouncing vague responsibility of the state to the victims and could not establish any concrete plans for redemption.

First of all, there is a need to review the character of TRCK activities because it focuses only on requested cases. Conducting investigations upon the petitioner request of individuals basically means that the Commission’s work is no different than handling a civil complaint and notifying the petitioner of the results after investigation. Therefore, depending on the nature of the submitted complaint, the scope of truth-finding as well as associated Commission functions and character of past settlement will be defined. However, according to the Basic Law, petitioners are limited to requesting verification of personal victimization incidents. In fact, all requested cases fall under this category.

Once the facts are revealed through Commission findings, petitioners can receive direct recognition and apology from the state of their unjust treatment. Although acknowledgement of the facts is only nominal without any real benefits, there is great meaning in this that it offers the petitioner an opportunity to hear a direct answer that the death was unfair. On the other hand, for those that did not apply but faced the same tragedy, there is no opportunity to unveil the truth or restore honor through the Commission’s activities. This limits the results of the Commission to only those that have applied and excludes the others. Moreover, because the Commission must put priority on responding to the civil complaint submitted, it is difficult for the investigation to take on a historical approach. In other words, the Commission’s investigation must focus on determining whether or not the petitioner’s claim actually occurred, and cannot look into the structure of how the victimization occurred or the cause and background into why it happened. Instead of investigating into the wrongdoings of the state or powerful state agencies, the investigations are focused on cross examining first line individuals that conducted illegalities upon the orders or command of superiors. In this scenario, the authority of the Commission is not strong enough to investigate against state agencies or upper offices. This is why truth-finding investigations far from the original objective of past settlements are taking place.

5. Establishment of a Past Settlement Foundation and Enactment of a Special Law on Reparation and Compensation for Victims

The truth-finding activities of the TRCK brought light to how great and heavy the pain and suffering was for the many victims and families for the past 60 years. Because the main role of the TRCK was to find the truth, separate tasks must now be implemented to complete the objective of past settlement. The settlement of past deeds can only be fulfilled through a process of truth-finding, relief and restoration of honor for victims, and reconciliation and memorial events. Therefore, it is now necessary to initiate follow-up measures to the truth-finding results. Soon, when the activities of the Commission are completed, a foundation for the settlement of past incidents is needed to complete the objective of past settlement.

Even in the Basic Law for the Settlement of Past incidents it stipulates the establishment of a past settlement foundation to oversee follow-up tasks such as reconciliation. The foundation’s activities include 1) memorial services and the operation & management of a historical archive by the government, 2) support for additional fact finding investigations, 3) and support for cultural and academic events related to truth-finding. So first, as stipulated in Article 32 of the Basic Law, a “Past Incidents Research Foundation” dedicated to the follow-up of truth-finding decisions must be established to achieve the ultimate goal of past settlement. Second, through the establishment of a foundation, broad and deep measures to overcome the past must be taken to seek national unity by resolving social and political conflicts and mistrust which have accumulated due to past incidents. Third, even after the completion of the TRCK’s activities, the state must implement the results and take necessary measures to restore the honor of victims of truth-finding cases and achieve national reconciliation and unity.

Through its many investigations, the TRCK has been able to comfort the pain of victims and bereaved families scarred by the illegal activities of the state in the past and through this, they have achieved meaningful results towards forgiveness and reconciliation. It is difficult to settle past incidents in one stroke. The only way is to resolve each case according to its characteristic in stages. The foundation for the settlement of past incidents will resolve the social and political conflict and division due to past issues and greatly contribute to the furtherance of reconciliation and co-existence as well as the development of democracy and the enhancement of human rights.

Next, according to the Commission’s investigations it was verified that many civilians were illegally and innocently killed by state power around the Korean War period. However, the state, although acknowledging the illegalities, has been avoiding its reparation responsibilities.

However, this year, in the reparation lawsuit issued by the bereaved families of the Ulsan Bodo League Case victims against the government, the first trial chamber rejected the extinctive prescription defense of the state and ruled in favor of the plaintiffs. This event sparked a train of litigations filed by the bereaved families and gave them high hopes for reparation.

The families of the victims of civilian massacres are filing for claims against the government based on the findings of the TRCK. Under the current system, the only way for these people to claim reparation against the state is through litigation, so according to the thousands of cases decided by the TRCK, the number of reparation lawsuits is expected to spur exponentially.

If the court recognizes the state’s argument of extinctive prescription and dismisses the claims of the bereaved families when the families file a lawsuit against the government upon verification of the truth which took decades to be revealed, the pain of the families will be further amplified. Therefore, instead of a method of reparation and compensation through individual lawsuits, the process should be treated the same across the board by enacting a special law which excludes the petition of extinctive prescription and sets a consistent standard and method for reparation and compensation. This is because although the civilian massacres occurred in all parts of the nation, the characteristics of the cases are similar and they share a common background, not to mention that the secondary sufferings of the bereaved families are also quite similar.

In consideration of this situation and the duty of the government in reconciliatory measures, the government should establish a broad and fair special law on reparation and compensation for victims which would be a more fundamental approach to this issue. For decades, most of the families of the victims of civilian massacres did not even know the truth of the matter, not to mention relief. Even if some knew about the facts, as the socially weak, they could not take the state to court let alone submit a request for the truth to be sought.

Establishing a measure that can fundamentally solve the reparation and compensation requests of the families of civilian massacres and not one-time measures is the way to achieve the true meaning of past settlement as it is also an execution of the state’s basic duty. The global historical trend is to also broadly acknowledge reparation for civilian massacres. The global society has since long ago established various legal devices for the punishment of crimes against humanity and mass killings. In particular, the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations” which was adopted by the UN General Assembly (December 16, 2005) details specifically the principles and modalities of reparation for the victims of state violence. Korea should also respect this and refer to this.

Although there is a difference in the amount according to political situation and financial status, most countries that implement past settlement strategies operate a program based on monetary reparation. Now, after restoring the victim’s honor and punishing wrongdoers through judiciary proceedings and truth-finding, we should focus on reparation and compensation. Under the current system and law it is difficult to restore the damages of the victims and families who have suffered for such a long time. In particular, even now after the truth is finally out, the state is trying to avoid reparation on grounds of extinctive prescription which is deepening the pains of bereaved families.

The broad and consistent remedy of cash grants to victims through the establishment of a special law on reparation and compensation for victims is a way to acknowledge the illegal activities committed by our government in the past and is an act of taking responsibility while realizing social justice.

In some aspects, the issues presented against the Commission’s activities are unavoidable. It could be due to the innate limitation of how the Commission was organized. In the case of other countries as well, the findings of a truth-finding commission cannot be without complaints. However, that is no reason for the Commission to be exempt from its responsibility. Moving forward, it is likely that requests for the restoration of the honor of victims, exhumation, and the establishment of memorial sites will become stronger with the passing of time. With these requests, the problems put before the state will become ever more serious by the day, which will call for quick and appropriate measures of resolution. Therefore, measures must be taken with this in mind.

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