Introduction: Transitional Justice in East Asia and its Impact on Human Rights

Human Rights Dialogue 1.8 (Spring 1997): "Transitional Justice in East Asia and its Impact on Human Rights"

March 5, 1997

The dramatic and unprecedented trials of two former Korean presidents accused of human rights abuses and corrupt practices raised the specter of transitional justice among the leaders of East Asian authoritarian regimes. It sent a warning to those who continue to violate human rights with impunity and raised hope among human rights proponents that justice might one day be served. Events like the Korean trial and Deng Xiaoping's death, together with speculation over who will succeed Indonesian president Suharto, raise questions about human rights and democracy in the region. This issue of Dialogue focuses on how transitional societies—those experiencing a transition from a repressive regime to a more democratic society governed by the rule of law—in North and Southeast Asia have responded to, or might respond to, allegations of gross human rights violations by the preceding or extant regimes.

Here, authors from Korea, Cambodia, and the Philippines comment on their country's experience of transitional justice, while others from Indonesia, Burma, and China shed light on the prospects for transitional justice should reform or a regime change occur in their country. A final piece on Japan's struggle to acknowledge and compensate World War II "comfort women" offers a perspective on accountability and moral responsibility for past abuses that transcend a single country. The opinions expressed here are those of the authors alone, and should be read keeping in mind the diversity of opinions within each country—as exemplified by the two articles from Cambodia—on this difficult and controversial subject.

Transitional political situations and their ramifications represent a relatively new area in human rights study and practice. The existing literature emphasizes transitional societies in Central and Eastern Europe, Latin America, and South Africa. However, in a very real sense, human rights have also been at the center of transitions in Asia, where the displaced or existing authoritarian regimes have been characterized by massive violations of human rights: tortures, disappearances, rapes, massacres, summary executions, and the list goes on.

Transitional justice takes many forms—criminal sanctions (for example, trials and criminal punishment) or noncriminal sanctions (for example, purging the public sector) or blanket amnesty—all of which have complex political, historical, legal, psychological, and moral dimensions. Generally, it is a mechanism for handling not only the human rights violations of a past regime, but also for restoring the dignity of its victims, survivors, and their relatives, as well as preventing the past from repeating.

In deciding whether to prosecute or pardon, new governments must weigh retribution against social stability, and try to ensure that the transition achieves justice along with some form of democracy and reconciliation. Achieving all of this simultaneously is not always possible. Difficult trade-offs must be made by the new government, as suggested in the articles on Cambodia, Burma, and China. But unless the political, legal, and moral legacies of the past are adequately addressed, they will continue to threaten to undermine democracy and peace, preconditions for the protection of human rights. The articles, especially those on Burma and Cambodia, also underscore the importance of dialogue across ethnic, religious, national, and ideological boundaries in achieving reconciliation and justice.

The Korean trial, the pardoning of a former Khmer Rouge leader in Cambodia, and the expulsion of Marcos from the Philippines highlight the fact that there is no hard and fast set of standards for dealing with those responsible for past human rights abuses. The authors raise some of the thorny questions involved in transitional justice: What does a society do about nulla poena sine lega, the fact that a person canot be tried for something that was not illegal at the time it was committed? How high up, or far down, the chain of command should those investigating abuses go in determining guilt? What are the limits of clemency?

How much a new government can distance itself from the past and what form of transitional justice is considered appropriate has much to do with the country s national culture, history, and present political realities. This fact is vividly portrayed in the articles: the Cambodian government's pardoning of Khmer Rouge leaders for the sake of peace, the need to recognize non-Burman minority demands before pacification, democracy, or justice can be achieved in Burma, the constraints of the entrenched Chinese conception of justice. After all, authoritarian regimes differ in their origins, the abuses they perpetrated, the history leading up to transition, the mode of transition, and the resulting balance of power. The degree of militarization and the strength of civil society and public opinion in each case also has implications for transitional justice, as seen in the cases of Indonesia and the Philippines.

The evidence presented here and in much of the current literature in this field reveals that the most important aspect of transitional justice is letting the truth be known. A full accounting through official acknowledg-ment, compensation, restitution, and/or rehabilitation, is necessary to prevent the recurrence of abuses, to repair the damage done, and to facilitate social reintegration. Often the lack of a competent prosecutorial sector or judiciary places domestic constraints on implementing transitional justice. In this regard, transitional justice becomes an important international issue. International funds, technical assistance, and pressure can greatly assist the legal reform, training, and institution-building necessary for transitional justice to progress.

The issues of impunity and international standards for democratic transition were first raised at the 1991 International Conference on Human Rights Law-Making and Transition to Democracy in Kathmandu, Nepal. There it was concluded that: (1) those responsible for human rights abuses should be brought to trial; (2) it is the responsibility of each government to make a full investigation and disclosure of the cases; (3) any kind of amnesty for the perpetrators of abuses should be opposed; and (4) measures must be taken to honor those who struggled for human rights and democracy. However, as Park Won Soon, a contributor to this volume of Dialogue, has noted, these recommendations have not been applied in East Asia. In a paper on "Transitional Justice in East Asia," Park offers cultural and historical reasons why few East Asian countries have successfully investigated and punished past offenders: (1) relatively low levels of public awareness, especially in countries like South Korea where a Confucian mentality prevents many from demanding the punishment of past rulers; (2) Buddhist populations that object to ideas of revenge; (3) populations concerned more with the capability of the new government to improve the quality of life by revitalizing the devastated economy than rectifying the past; (4) weak civil societies and an unmet need for new leadership; (5) the lack of historical examples in the region; and (6) the absence of regional human rights mechanisms and regional cohesion.1

The links among transitional justice, democratization, and economic growth deserve further attention, especially in the East Asian context where growth and democratization have gone hand in hand in many countries, such as South Korea. Economic growth can work at cross purposes to transitional justice, creating a culture of indifference as prosperity helps people forget past wrongdoing and repression. Large corporate enter-prises that benefited from collaboration with past dictatorships and now favor stability and economic growth rather than stirring up the past, should also be subject to scrutiny. Given ongoing social and economic rights violations, as cited in the articles on the Philippines and South Korea, there also appears to be a need to achieve some form of justice for the ongoing, low-intensity human rights violation in today s consolidating market-democracies. How just are transitions that result in "development aggression," a term coined by Filipinos to describe the ill effects of development on their local communities?

Transitional justice is a test of democracy, the rule of law, and human rights. The form of justice or retribution sought by the new regime should not itself violate domestic law or international human rights standards, and it should reflect the will of the people. These are important parameters: How a country comes to terms with the legacies of its past will arguably affect its efforts to garner the public trust needed to nurture a young democracy and to instill the rule of law needed to protect human rights in the future. —

Tonya Cook, program officer