Divided Nations and Transitional Justice

What Germany, Japan and South Korea Can Teach the World

Sang-Jin Han, Kim Dae-Jung, Richard Von Weizsaecker

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781594519000
• eBook ISBN: 9781317261025
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

"Divided Nations and Transitional Justice" is a collection of significant writings contributed by the late president Kim Dae-jung of the Republic of Korea and former president Richard von Weizsaecker of Germany. This book presents insightful views, lifetime career experiences, and expertise of the two prominent leaders in the critical fields of unification, peace, and justice and reconciliation. It centers on the cases of Korea, Germany and Japan, and considers how these countries have moved to address and come to terms with their wartime past. This book moves to deliver messages of hope and vision on how to further the values of peace, reconciliation and cooperation in the twenty-first century."

1

Divided Nation, Unification and Transitional Justice: Why Do We Need a Communicative Approach?

Han Sang-Jin

HISTORICAL BACKGROUND

Among the many countries in the world, Korea and Germany share the most complicated issues in relation to the divided nation and transitional justice. Germany started World War II and was split into West and East Germany after its defeat. Then, transitional justice processes were implemented in both sides. The military forces of the U.S., Britain and France, which occupied West Germany, opened the Nuremberg Trials to investigate and punish the Nazis for their severe war crimes, including the Holocaust. As a result, West Germany offered a lukewarm apology to the invaded nations, paid reparations to the victims and vividly described their war crimes in their history textbooks in order to tell new generations the truth. At the same time, the transitional justice process was actively implemented in East Germany as well. However, while East Germany became a Stalinist-style socialist country, West Germany incorporated democracy and a market economy that helped their economy to prosper and enhance their quality of life; also, West Germany pioneered in building a vibrant civil society that incorporated freedom. In addition, West Germany, with its firm commitment to the transitional justice process, not only reconciled with its neighboring nations but also developed itself as a trusted and responsible nation among other European countries.

In 1970, the former chancellor of West Germany, Willy Brandt, proposed a new goal of the post Cold War called “Ostpolitik” (East Policy), which promoted reconciliation and coexistence between divided nations. The fundamental doctrine of this policy was supported by the conservatives who had political powers. Consequently, there had been increased number of comings and goings of citizens in both West and East Germany and their access to information was facilitated; moreover, the positive effects of West Germany’s economic assistance to East Germany were amplified due to its excellent coordination with changes in international politics. Finally, in 1989, the Berlin Wall was removed and Germany was reunified, making a turning point in European history.

With this event, attention was drawn again to the transitional justice. West Germany, after reunifying Germany by absorbing East Germany, investigated East Germany’s systematic violation of human rights, including the crimes committed by the secret police (the Gestapo) and their strict monitoring of residents. Then, West Germany punished and removed former East German figures who were involved in human rights violations from their offices. Accordingly, Germany became a nation that experienced two separate transitional justices, in which the victor’s justice was served.

In contrast, Korea’s experience is quite different. Korea has a long history as a unified nation and is similar to Germany in the way that both nations were divided into two parts after World War II. However, Korea had never committed war crimes like Germany; Korea was rather a victim of Japanese imperialism. Despite the fact that Koreans had fought for their independence, they eventually faced the tragedy of being split into a divided nation after the defeat of imperialist Japan. Though the primary reason for the division was due to the agreement between the U.S. and the Soviet Union on the temporary occupation of Korea as a trusteeship with the zone of control demarcated along the 38th parallel, the fundamental reason stems from the Japanese imperialism. In other words, without the Japanese invasion and colonization of Korea, there would not have been a divided nation. For this reason, the relationship between the divided nation and transitional justice found in Korea is much more complicated than that of Germany. One may speculate that overcoming the past in the name of transitional justice will be completed only when the Korean peninsula reunifies.

To begin with, Japan’s attitude toward transitional justice has been different from that of Germany. In history, Japan was the sole nation that declared war against the U.S. After Japan’s capitulation, the U.S. opened the Tokyo military tribunal to punish Japanese war criminals. However, the U.S. was interested neither in investigating nor in blaming Japan for its inhumane war crimes committed on Korea, China and Southeast Asian nations; the U.S. was only interested in punishing Japan for their war crimes committed on the U.S. Other nations had no rights to speak in the transitional justice process on Japan. In the meanwhile, many Japanese were emotionally dissatisfied with the transitional justice process conducted. They believed it was not for restoring universal values of human rights but for showing the authority of the victor. Besides, with the outbreak of the Korean War in 1950, the U.S. brought Japan, one of the newly rising powers in the international cold war system, as their allies. Consequently, the transitional justice, which lacked completeness in Japan, collapsed. Japanese war criminals returned to politics and there was a tendency for the Japanese to praise their crimes. Also, there was a public sentiment that Japan itself was the victim of the war since the atomic bombs dropped on Hiroshima and Nagasaki had destroyed millions of Japanese lives; this contrasts with its neighboring nations, which believe Japan to be the offender. Though this Japanese war memory of atomic bombs has contributed to advocating peace, Japan’s long-reigning Liberal Democratic Party’s transitional justice efforts on the investigation of war crimes, its apologies and its compensation to neighboring nations have become highly passive. In fact, every August 15th, Japanese politicians’ continued visits to the Tokyo Yasukuni Shrine, a place that honors top war criminals and their accomplishments, have caused many neighboring nations to express strong dissatisfactions.

Koreans suffered the most from the invasion of imperialist Japan yet they were the most powerful resistance to its rule; thus, Koreans have utmost interest in Japan’s transitional justice process. In 1965, both South Korea and Japan signed a treaty that normalized the basic relationship between the two nations. The treaty promoted cooperation between South Korea and Japan despite their troubled past. Japan provided South Korea with an Economic Aid Package but it was not considered as a war reparation but more as mere economic assistance. In other words, this treaty lacked any sort of apology from Japan and remorse toward war crimes. In Korea, this treaty was considered as a humiliation, arousing anger among Koreans. Furthermore, when the issues of comfort women, forced laborers and distorted history textbooks were raised, the Japanese government and its politicians avoided discussing its truth and taking responsibility. Thus, since Japan’s approach is different from that of Germany, the way Koreans view transitional justice is different. In other words, the transitional justice in Japan is incomplete, distorted and erroneous.

The transitional justice process conducted in Korea after its liberation in 1945 was full of distortion as well. In the case of Germany, the offenders were Nazis or Germans, not foreigners; their punishments and establishment of justice were dictated by the allied force. However, in the case of Korea, the offenders were foreigners or Japanese. For this particular case, it is remarkable to observe the cases of France, Poland and Finland, the nations that conducted transitional justice once they gained their sovereignties after the war. As Offe (2005: 13) notes, the new regime “cannot possibly refrain from sanctioning perpetrators, because that would mean to insult victims and to risk the appearance that the new regime is involved in a conspiracy with the elites of the predecessor regime.” Thus, these nations identified and punished an incredible number of traitors by confiscating their assets and disenabling them from holding public offices. Nevertheless, this process was never found in Korea, due to the fact that the Koreans who had supported Japan became a strong political faction in fighting against the communists from North Korea in the midst of the divided nation, the international cold war system, and the presence of the U.S. in South Korea.

To be more precise, a special commission was formed in 1949 to investigate national traitors but soon collapsed as the Korean War broke out. Since then the South Korean government was able to form a presidential committee to identify rather than punish those collaborators only in 2005, 60 years after its liberation from Japan. The debate was triggered by the discovery of a historical fact that some of the leading Korean intellectuals with good reputations as symbols of the “national soul” wrote columns in local newspapers in support of the colonial war in the middle of the 1940s. The fact was indisputable but the interpretation remained in question. The hard-liner tended to identify them as collaborators, whereas a strong reaction emerged arguing that attention ought to be drawn to the historical context of these writings to get a more balanced and comprehensive understanding. The process of conducting transitional justice thus became highly controversial and political.

In addition, the relationship between transitional justice and divided nation is an issue that calls for careful observation. The German reunification owed much to the East German citizens who wanted the West German government to solve their problem, not the East German government. West Germany abandoned nationalism and took its oath toward the integration of Europe, gaining trust from neighboring nations; the sympathetic understanding of the Soviet Union had also contributed to the reunification of Germany. However, the case of North Korea is completely different. As West Germany did, South Korea has adopted democracy and market economy, and consequently developed far more successfully than North Korea. Despite this fact, it is questionable whether the same pattern of reunification that occurred in Germany would occur on the Korean peninsula. The poverty and vulnerabilities of North Korean citizens to diseases that stem from the inadequate economic policies are prevalent. Yet its isolation from the rest of world makes the external leverage of influence on North Korea very low. Insofar as China supports North Korea, it is difficult to find a feasible way of changing the North Korean regime. The observation of the fall of East Germany and other socialist nations has sensitized the attention of the ruling group of North Korea to set regime security as the top priority goal of their policies.

Based on the analysis of these tendencies and contemplation, the former president of South Korea, Kim Dae-jung, came to believe that it would be impossible to bring changes in North Korea with confrontation politics. Instead, he developed an ambitious vision of “global democracy” (Han, 2010a) and, as the first step, adopted the “Sunshine Policy” designed to promote reconciliation and cooperation between South and North Korea, as did Willy Brandt’s “Ostpolitik.” Here again, we find a significant difference between Korea and Germany. In the latter, the “Ostpolitik” was initiated by the Social Democratic Party but was maintained by the conservatives, whereas in the former, the conservatives who took power tried to abolish the “Sunshine Policy.” Though the Cold War ended after the Soviet Union collapsed in 1991, it is still present on the Korean peninsula.

This chapter raises two basic questions in this context. First, given the ambiguities and complexities of the issue of transitional justice as we find it in Japan today, how can we best handle the problem with an optimal degree of theoretical consistency, thereby attempting to form a genuine basis of East Asian community? Second, how can we best pursue unification and transitional justice from the perspective of the communicative approach in order to go beyond national division towards a new (reunified) political community?

PRACTICAL DIFFICULTIES ENCOUNTERED

When we try to come to terms with history and deal with a systematic transgression in the past, whether its origin is domestic or international, the problem can be reasonably solved if the perpetrators accept the crime they committed and beg for pardon. Even if this condition is satisfied, of course, there may still be legal and political issues to be adequately addressed, but the idea of justice is easier to formulate and implement than in the cases in which offenders do not admit their wrongdoings. Even worse, when they attempt to justify their actions by recourse to some kinds of ideology (nationalism) or threats (national security), we are likely to be blocked from moving further. It may be frustrating to find that we can neither forgive nor punish the perpetrators.

In this situation one can argue that practical considerations are needed to explore a new approach. According to Chalmers Johnson, the brutality of the war crimes by the Japanese army was comparable to or even more severe than that of the Nazi regime. The war criminals of both countries had to go through the process of International Military Tribunal, in Nuremberg and Tokyo respectively, ruled by the victors to establish transitional justice. Since the 1960s, however, the pathway taken by Japan differed from that of Germany. One big difference lies in the political leadership. Since 1970 when Willy Brandt, Germany’s prime minister at the time, got down on his knees at the site of the Warsaw Ghetto in Poland and apologized for the savagery of the Nazis, the German leaders have been consistent in humbly admitting to the atrocities their past regime committed, offering a sincere apology to the victims and asking for forgiveness. In this way, Germany has produced an exemplar model of overcoming its shameful past. As a consequence, the German political leadership has been accepted and recognized as a leading partner of the European Union. However, in Japan, the behaviors of political leaders have created confusion, disillusionment, and anger from neighboring countries. Since August 15, 1984, when Former Prime Minister Nakasone made an official visit to the Yasukuni Shrine, most of the succeeding Prime Ministers have continued to pay homage to convicted war criminals by repeating this ritual. This has given rise to popular distrust of Japan by neighboring countries.

The difference between Germany and Japan is so stark that it is almost shocking. Whereas Germany has been fully accepted as a reliable partner of the European community, Japan has pretty much failed to reconcile with neighboring countries. For this reason, former president of Germany R. von Weizsäcker has repeatedly advised Japan to pay due attention to the course Germany has taken, with the hope that it may help Japan regain historical consciousness, particularly for its young generations who will shape the future of Japan. Until September 2009 when Yukio Hatoyama became the new Prime Minister of Japan and alluded to a new approach to the problem of history, and admitted that Japan had failed to reconcile with Asian countries, the political leadership of Japan seemed to have been united with the view that “Japan is different from Germany.”

If so, what can be done? In the past, a model of retributive justice was imposed from outside by the victor of the war. Characterized by a sharp contrast between the winner and the loser, between war criminals and judges, and between good and evil, this model made it easy to implement a strong concept of retributive justice against perpetrators. Today, no one can impose this model. Nevertheless, one can still provide Japan with good reasons to follow Germany should it want to overcome its ugly past. It may be hoped by concerted efforts to mobilize international pressure against Japan while sensitizing attention to the costs Japan may have to pay if it refuses to do so. At the same time, it may also be worthwhile to explore whether there is another way of dealing with the past based on reciprocal dialogue rather than a strong model of victor’s justice. This model, if conceivable at all, may be meaningful when the boundary between perpetrator and victim becomes flexible to the effect that the perpetrator is also invited to express their view while the victim pays attention so that reciprocal dialogue can give rise to a common ground of understanding, that is, socially constructed justice.

EXPLORATION OF THEORETICAL MODELS

Transitional justice tends to emerge as a sensitive issue when a country is transformed from some variant of an authoritarian regime to a democratic system. Given the varieties of transitional contexts, we may classify all the relevant cases into two groups. One is the group in which transition was carried out by the Occupation Force which had defeated the criminal regimes in an international war. The other is the group in which transition was negotiated by political forces in the process of democratization. Good examples of the former are Germany and Japan after the Second World War and those of the latter refer to “new democracies” in many countries where democratization started to unfold beginning in the mid-1970s. A simple comparison makes it clear that justice was administered more decisively, more thoroughly, and more consequentially in the former than in the latter, owing much to the strong push by the Occupation Force as an external power. One may say, therefore, that among all the factors under consideration, the international factor shaped the basic course of transitional justice most decisively.

This argument seems to be self-evident since the Occupation Force enjoyed an exceptional privilege with little, if any, resistance from the old power groups entangled in the past authoritarian regime. Thus, in both Germany and Japan, trials of war criminals were held with no opposition, while new institutions were installed from above, and the core organizational arrangements of the past regimes were forcibly eliminated. Here we find a strong legal model of justice which is univocal, clear-cut and top-down in operation. From the perspective of legal justice, wrong-doers are to be punished and eliminated to keep the community safe and responsible. No political consideration is needed. Reconciliation is possible only when retributive justice is strictly enforced. We may call this a justice-centered hard-line approach to reconciliation.

Since the hard-line approach yields consequential impact, the justice-centered model is most attractive and preferable to the victim. As Offe (chapter 2 in this book) suggests, perpetrators are to be sanctioned “in ways that are eventually accepted even by them and their political allies, as well as by the vast majority of those who are neither victims nor perpetrators, as a fair and adequate punishment.” Reconciliation is regarded as a consequence of a fair punishment of the perpetrator and appropriate compensation to the victim. Seen in this way, any attempt at reconciliation is ill-founded when truth remains not fully revealed and offenders are not fairly punished. Likewise, we can forgive the perpetrator only when retributive justice is well realized.

Another model may be described as a pragmatic model of avoidance which insists that sometimes it is better to forget about the past for the future. Whenever justice is administered, new political conflict tends to arise, intensifying the fear of further polarization and division of the society. Thus, this model advocates the virtue of forgetting or maintaining silence rather than justice. Though transitional justice is aimed at integrating the nation anew, a hasty way of dealing with the ghost of the past may lead the country to be even more divisive, rather than healing the wounds of victims. It is often argued against the justice-centered model that there are more important objectives for the future than struggling with the past, such as focusing on national economic development.

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Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• 1 Divided Nation, Unification and Transitional Justice: Why Do We Need a Communicative Approach?
• 2 Three Objectives of Transitional Justice Today
• Part One Two Presidents on Peace and Unification of Divided Nations
• Part Two Two Presidents on Transitional Justice and Reconciliation
• Part Three Can Japan Learn from Germany? Toward a Trustful Japan with Global Leadership
• Part Four The Younger Generation Takes Its Stand
• Conclusion
• About the Contributors