Preliminary Observations from the Official Visit to the Republic of Korea by the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Mr. Fabián Salvioli (8 to 15 June 2022)

Korean

Seoul, 15 June 2022

From 8 to 15 June 2022, I conducted an official visit to the Republic of Korea. I would like to thank the Government for extending the invitation to visit the country, as well as for their cooperation during the realization of the visit. The objective of the visit was to see and assess the measures adopted by the authorities in the Republic of Korea in the areas of truth, justice, reparation, memorialization and guarantees of non-recurrence, which have been adopted to address the serious violations of human rights and humanitarian law committed during the periods of colonial rule, war and dictatorial regimes. The visit sought to develop a broad view of the various initiatives taken, identify good practices, gaps and challenges, and provide recommendations.

During my stay, I visited Seoul, Sejong, Gwangju, Daejeon and Seongam-dong (Ansan). I also had the opportunity to make field visits to memorial sites, former detention camps, and sites of mass graves and exhumations. Over the course of the visit, I met with officials from the Ministry of Foreign Affairs; the Ministry of Justice; the Ministry of Interior and Safety; the Ministry of Gender Equality and Families; the Ministry of National Defence, the Ministry of Education, the National Police Agency, the National Archives of Korea, the National Human Rights Commission, the Truth and Reconciliation Commission, the May 18 Democratization Movement Truth Commission, the Commission for Democratization Movement Activists’ Honor Restoration and Compensation, members of Parliament and members of the Judiciary. I also meet with victims and their families, civil society organizations, human rights practitioners, academic experts, as well as representatives of the international community.

A detailed report of my visit will be presented to the Human Rights Council in September 2023.

General Impressions

During the 20th century, the country experienced colonialism, armed conflict, occupation and nearly 40 years of authoritarian rule until the late 1980s. During those years, serious violations of human rights and humanitarian law were committed including killings, torture, disappearances, sexual violence and exploitation, trafficking, forced labour, and arbitrary detention.

At the turn of the 19th Century, the Korean peninsula was disputed between the Chinese, Japanese, and Russian empires. After the Sino-Japanese War (1894-95) and the Russo-Japanese War (1904-1905), Korea was annexed by Japan (1910–1945). Following Japan’s defeat in World War II, Korea regained independence, but was subsequently divided into two occupation zones, with the United States in the South and the Soviet Union at the North of the 38th parallel. Two separate nations were established in 1948: The Republic of Korea in the South, and the Democratic People’s Republic of Korea in the North. In 1950 a war erupted following North Korea’s invasion of South Korea, with several countries involved in backing the two parties to the conflict. An armistice agreed in 1953, but not signed by South Korea, ended the war and established a demilitarized zone between the two countries, but a peace treaty was never signed. A succession of autocratic and dictatorial regimes ruled the country from 1948 until 1993. While a series of intermittent social uprisings were not able to curve this trend for several decades, following several protests and general discontent, free elections were held in 1987 initiating the country’s transition to democracy.

Throughout the succession of turbulent socio-political events that battered the country, Korean society was exposed to numerous and diverse forms of gross violations of human rights and humanitarian law, at the hands of different actors and political entities. In many instances, the violations were committed in massive scale and/or over an extensive period of time. Most of these violations have been left unaddressed for decades while the country continued to battle with conflict and authoritarianism. When democratic consolidation offered the opportunity to redress the longstanding grievances of victims and society’s longing for healing and reconciliation, the Government adopted certain measures to respond to the numerous transitional justice challenges facing it. However, these measures were not inscribed in a comprehensive approach that could adequately and sustainably redress those demands.

During the visit, I received reports of gross violations of human rights and humanitarian law endured during Japanese colonial rule (including the Japanese sexual enslavement of women and girls and the forced mobilization of women and men as work force and soldiers, and the Massacres of Sakhalin Koreans), during the Korean War (including the Jeju April 3rd Massacre, the Daejeon atrocities and the involuntary separation of Korean families), and during authoritarian rule (including the forced conscription and 'greening project' of activists, the suspicious deaths of activists, the fabrication of spy cases, the forged spy cases against returning fishermen from North Korea,  the 18 May massacre in Gwangju, and the violations commited in the facilities and camps such as the Hyungje Bokjiwon (Borthers Home), the Seosan Gaechokdan -pioneering group-, the Samchung re-education camp, as well as during the Emergency Measure).

While I do not have the space today to address in detail the violations suffered by the Korean society in the course of the 20th Century, I would like to acknowledge the suffering of those victims and their families, and pay my sincere respect to them. I commend the work of victim’s associations, civil society organizations, academics and the government’s entities that have intended to unveil the scale and the specificities of those violations and provide acknowledgment to the victims, thus helping restore their dignity. The sheer number of atrocities and of persons affected by them makes this work titanic, but also -and above all- vital for healing and reconciliation. I will have the opportunity in my final report to share more details regarding these violations and the measures adopted to redress them. In the meantime, I would like to urge the responsible authorities to continue (or embark on, where necessary) unabated the urgent task of seeking comprehensive truth, establishing responsibilities, and providing full reparation for the past human rights violations. Not one tragedy or one victim should continue to go unrecognized. Non-recurrence, as we all know, relies strongly on acknowledging one’s past to move towards a future of sustainable peace and human rights protection.

Truth seeking initiatives

As the Republic of Korea initiated its democratic transition, various truth seeking initiatives were adopted by the Government to find out the truth about past human rights violations. Currently these include: The Truth and Reconciliation Commission (and its previous iteration pursuant to the Framework Act on Settling the Past History for Truth and Reconciliation of 2005), the May 18 Democratization Movement Truth Commission, the Presidential Truth Commission on Deaths in the Military, and the National Committee for Investigation of the Truth about the Yeosu-Suncheon October 19 Incident and Restoration of Honor of the Victims. Insufficient material and human resources and limited investigative mandates have however limited their capacities and could impact on their accomplishments.  The lack of access to the documentation and archives of the governmental entities accused of involvement in the commission of human rights violations, such as the National Intelligence Service, the National Police Agency and the Ministry of Interior has severely hampered the work of the truth- seeking commissions.

The entities accused of involvement in the commission of human rights violations have also set up internal fact finding commissions, such as the National Intelligence Service’s Development Committee for Clarifying the Past (2004-2007), the National Police Agency's Fact-Finding Committee on the Past State Violence (2004-2007), the Committee to Identify the Truth of Past State Violence by the Ministry of National Defense (2005-2007) and the Special Committee on Cases of Past Human Rights Violations  by the Prosecution set up under the Ministry of Justice (2017-2019). The scope of their investigations and findings were, nonetheless, limited. In addition, the recommendations were not adequately implemented.

I was informed that victims’ access to their own records are often restricted by the prosecution and/or the National Archives, arguing national security or the non-disclosure of private information. In addition, victims are reportedly requested to pay fees to view and copy their own records.

Over the years, the Government has established an institutional infrastructure to seek the truth about numerous human rights violations committed in the past. I welcome these efforts and urge the Government to intensify them. The scope of violations that remain to be addressed are in itself a challenge. Efforts must be sustained in time to ensure that all past incidents of human rights violations are duly considered, acknowledged and recorded for present and future generations. A violation not addressed is a victim continuously re-victimized. Efforts should not be speared to comprehensively address the country’s serious past human rights violations. In addition, I call on the National Intelligence Service, the National Police Agency, the Armed Forces, the Ministry of Interior and Safety and the Ministry of Defense to provide unrestricted access to their records to the truth-seeking commissions without delay. I also call on the National Archives of Korea and the prosecutorial offices to ensure victim’s access to their records without restrictions or associated fees, as this is a responsibility incumbent on the Government.

Accountability

The Republic of Korea did not embark on an accountability process or prosecutorial strategy to investigate, prosecute and sanction the perpetrators of the aforementioned serious human rights violations. As a result, judicial activity has been limited to the resolution of the claims against the State filed by victims. While Courts have been seized of numerous liability cases against the State, most have been dismissed in application of statutes of limitations. As a result, civil and criminal liability of the State or the perpetrators has rarely been established, leaving the grievances of most victims entirely unaddressed. The Government adopted legislation in 2011, 2015 and 2020 to exclude the application of statues of limitations to crimes against humanity, killings and rape in certain specific circumstances - but not to other serious human rights violations- and enacted the Act on Punishment of Crimes under Jurisdiction of the International Criminal Court in 2007. The Constitutional Court ruled against the application of long-term extinctive prescription to serious human rights violations in 2018.

Due to the high number of persons convicted in the past for exercising their right to freedom of assembly and expression during past authoritarian regimes, the Government adopted a series of legislative and policy measures to facilitate their retrials. Courts have been involved in the retrial of many such cases, as provided for in Article 420 and 422 of the Criminal Procedure Act, and Article 451 of the Civil Procedure Act. Many of those retrials have been recommended by the TRC, but still require victims to individually initiate the retrial request. The Special Act on Discovering the Truth on the Jeju 4·3 Incident and the Restoration of Honor of Victims, has simplified the retrial procedure for these victims.

Accountability and legal redress to victims are essential pillars of transitional justice as it provides the basis for restoring society’s trust in the State and its institution, and a solid guarantee of non-recurrence. It is also a duty of the State under international law. Societies who do not confront their past through comprehensive judicial accountability processes run serious risk of weakening its democratic and societal foundations. I call on the relevant authorities to establish a prosecutorial strategy to ensure the criminal investigation, prosecution and sanctioning of those responsible of having committed serious human rights violations, who remain alive. Regarding the application of statute of limitations, I note the legislative reforms adopted to exclude their application to crimes against humanity and to two other specific crimes; however, I call on the relevant authorities to expand the scope of these exclusions to all serious human rights violations and to ensure their adequate implementation. I acknowledge the measures adopted to facilitate the retrial of persons wrongly convicted for exercising their rights to freedom of expression and association, and call on the relevant authorities to sustain, and where necessary expand these efforts to assist all related victims.

Reparations

The Republic of Korea has not adopted a comprehensive bill that allows victims to receive compensation without litigation. As such, no national reparations programme was adopted. As a result, most victims have to go through individual litigation processes, which were often rejected by courts in application, once again, of statute of limitations or due to the high standard-of-proof threshold placed upon victims. Some legislation does provide, however, for compensation and /or the restoration of honor of the victims that fall within their purview, such as the Act on the Honor Restoration and Compensation to Persons Related to Democratization Movements (which established the Commission for Democratization Movement Activists’ Honor Restoration and Compensation), the Special Act on Discovering the Truth on the Jeju 4·3 Incident and the Restoration of Honor of Victims, the Special Act on Truth Finding and Honor Restoration of Victims of the Yeosu and Suncheon October 19 incident, and the Act on Special Measures for the Restoration of Honor of Persons Involved in the Geochang Incident (albeit the latter with a short application period and prescribing high threshold of proof from victims ). In some cases, even if there is legislation stipulating compensation, the amount granted is insufficient to compensate for the victim’s harm while proscribing further litigation. In order to harmonize the compensation amount recognized to victims, in 2018 the Government adopted a “fast track” procedure to assess the adequacy of the sums granted. In this regard, the Framework Act on Settling the Past History for Truth and Reconciliation, pending at the National Assembly, is a welcome initiative which would facilitate compensation processes through a Compensation Deliberation Committee.

Rehabilitation and other forms of reparation such as medical subsidies are provided in some cases but on a limited scale. The government has enacted in December 2021 the Act on the Establishment and Operation of the National State Violence Trauma Healing Center. This is a much welcomed initiative, albeit it leaves out victims who suffered harm before 1945. Psychosocial service centers (“trauma centers”) have been established in Jeju and Gwangju, but other areas do not yet count with such services. Instances of apologies were offered by the Heads of the Prosecutor’s Office and the National Intelligence Service for some incidents of human rights abuses, however they were limited in scope and content. Certain judges also offered personal apologies in the context of retrial cases, but they did not constitute an institutional apology.

I call on the Government to adopt without further delay a comprehensive legal framework, and concomitant national programme, to provide full, prompt and effective reparation to all categories of victims of serious human rights violations, which should encompass measures of compensation, rehabilitation, restitution and satisfaction. The framework should clearly define criteria for obtaining the status of victims and set out the specific rights and entitlements guaranteed to victims throughout the country. I further call on the authorities to halt the application of status of limitations to reparations for such violations and the collection of fees from victims whose claims have been unsuccessful. Psychosocial services should be available to all victims, including those who suffered harm before 1945, and across the country. I also call on the Government to present official apologies to all categories of victims in full consultation with them regarding the content, scope and format of the apology, and to publicly record them, in order to restore their honour.

Memorialization

The Republic of Korea has not yet adopted a comprehensive legislation or policy to memorialize the serious human rights violations suffered during the 20th Century and the harm suffered by victims. However, several initiatives have been adopted throughout these years. For example, the establishment of the Jeju April 3rd Peace Park, the National Memorial Museum of Forced Mobilization under Japanese Occupation in Busan, the Memorial Park of Geochang-Sancheong-Hamyang, and the No Gun Ri Peace Park. A National Commemoration Facility for Korean War victims will be established in Daejeon. However, it will be important to also establish a permanent place to keep the remains of the Korean War victims (Commemoration House in Sejong). In relation to the democratization movement, I also observed the establishment of the Democracy and Human Rights Memorial Hall in Seoul, the Gwangju May 18 Memorial Park and Archive, the Korea Democratization Movement Memorial Park in Icheon, the Democracy Park in Busan, the Daegu February 28 Democratic Uprising Memorial Tower, the Daejeon March 8 Democratic Uprising Memorial Hall and the Changwon Democracy Memorial Hall. I commend the efforts of local authorities in Gwangju to memorialize the violations committed there. I visited several memorials in the city as well as sites that should become sites of memories, such as the former Gwangju prison.

I wish to recall that the memorialization of the harm suffered by victims is vital to reconciliation, to guarantee non-recurrence of past violations and to restore the dignity of victims. Moreover, it is a duty of the Republic of Korea under international human rights law. The relevant authorities at the State, entities and municipality levels must adopt the necessary measures to adequately memorialize the violations suffered by all victims at their own initiative, as well as by supporting the efforts of relatives of victims and survivors. This should be done in full consultation and with the effective participation of victims in the design and implementation of the memorialization initiatives.

Guarantees of Non-Recurrence

Since the 1990s, the Republic of Korea has embarked upon a solid process of democratization. From a transitional justice perspective, the adoption of constitutional, legal and institutional reforms aimed at consolidating the rule of law, the adoption of a national human rights institution, the ratification of international human rights instruments and the solid engagement with the international human rights framework are commendable achievements. However, insufficient efforts were devoted to reform the the security sector institutions involved in past serious human rights violations, including the armed forces and police and intelligence services. I was informed about perpetrators who remained in office, and received State honors, despite their confirmed involvement in past violations, and about regulations stemming from dictatorial regimes which are still in force and stifle civic expression.

I urge the relevant authorities to reform the legal and institutional framework of these institutions in full compliance with international standards, including by abolishing Article 7 of the National Security Law, which has been at the center of many human rights violations in the past and remains in force. I also call on them to conduct a comprehensive vetting process of the human rights background and qualifications of all serving officials and to guarantee civilian oversight of security sector institutions. Educational and cultural activities transmitting accurate and comprehensive accounts of past violations to current and future generations, are also insufficient and must be strengthened.

Final Observation

The Republic of Korea has seen numerous, varied and at times massive human rights violations during the turbulent political periods witnessed in the 20th century. In the 1990s, the country embarked on a process of transition to post-authoritarianism, which also inevitably included elements of a post-conflict transition, due to the unaddressed grievances from colonial and war times. As such, the democratic government was faced with numerous challenges and the demands of an ever growing number of victims developed over a 70-year period, a colossal task which requires sustained efforts and political will. Political ambivalences however, have not allowed a comprehensive transitional justice process to be designed, but initiatives in several areas where adopted to respond to the demands of victims and society.

I commend the progress made in consolidating the rule of law and democratic governance. I also acknowledge the measures adopted at the national and local levels in the fields of truth seeking and memorialization. I urge the Government to deepen these efforts through comprehensive processes which ensure that all violations and the suffering of all victims are adequately investigated, acknowledged and commemorated. While compensation has been offered, albeit to a limited categories of victims, and psychosocial rehabilitation services and measures to restore victim’s honour are scaling up, a comprehensive reparation process must urgently be adopted to ensure full reparation (including restitution, compensation, satisfaction and rehabilitation) to all categories of victims. I am concerned about the lack of progress in the reform of the security sector (including its legal, personnel and institutional infrastructure) and related regulations that hamper freedom of expression and association, the absence of criminal accountability of perpetrators of serious human rights violations, and the application of statutes of limitation to some categories of serious human rights violations. I call on the Government to adopt comprehensive measures in these fields without delay. I remain at the full disposal of the Government to provide technical advice in these areas with a view to enhancing the path initiated to redress past abuses and effectively respond to the longstanding grievances of victims.

Concerning the situation of victims of serious human rights violations and violations of humanitarian law committed with the direct or indirect involvement of third countries, such as the so called “Comfort Women”, the victims of Jeju, the Korean War, Gwangju, the Sakhalin Koreans, and the abductees and prisoners of war, I call on the authorities of those countries to assist in the task of providing access to truth (including full access to national records and archives), accountability, reparation, and memorialization of the harm suffered by them. The authorities in the Republic of Korea should actively engage with these governments to ensure that the necessary measures are adopted by them to provide redress to victims. In this regard, I would like to recall the appeal from several international human rights mechanisms to revise the 2015 Agreement between Japan and the Republic of Korea on the issue of so called “Comfort Women”, which was concluded without victim’s acquiescence and leaves their demands for truth, justice and full reparation unaddressed.

I would like to conclude by recalling the advance age of most Korean victims and the need to provide them with effective responses that fulfil their demands and restores their honour. The government should spare no time or resources on this pressing task.