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Presentation of opinions on legislation of a special law on civilian victims of the Korean War [2003] KRNHRC 12 (1 January 2003)

Fifty years have passed since the cause of the petitions concerning civilian
victims due to the Korean War occurred. These complaints were subject to
rejection under paragraph 4, Article 1 of the National Human Rights
Commission Act, which stipulates `the Commission shall reject a petition in cases
it is filed after one or more years have elapsed since the facts causing the
petition happened.' The period of criminal and civil prescription has long
expired. Nonetheless, considering its objectives of upholding protection and
promotion of human rights, the Commission recognized this case where civilians
became victims by the abuse of public power authorities (the national army,
police, and the United Nations forces) during the Korean War was an important
human rights issue, and examined the case as a major policy agenda.

On May 27, 1960, the National Assembly established the Special Committee
to Investigate the Incident of Massacre of Civilians and presented a bill for
legislation of a special act. Since then, special laws on two individual cases were
enacted; the Special Law of the Geochang Incident and the Special Law of
Truth and Restoration for the April Third, 1948 Incident in Jeju, in 1996 and
2000, respectively. However, decisive proof of the civilian victims' claims
during the Korean War was hardly available, and even if there was such proof,
it was highly likely destroyed, and materials about the Korean National Army
and UN forces were hardly accessible. Because much of the specifics of the
situation could not be ascertained, the Commission decided to handle all such
cases as one single case by integrating all the incidents throughout the nation
during the Korean War rather than individual cases that occurred in specific places.

Although the civilian cases that occurred during sweeps for communist
guerrillas under the military operations of the national army at the time of the
Korean War constitute `slaughter and annihilation of civilian residents,' it fails
to fully constitute a crime against humanity. It is, therefore, difficult to apply
international law directly to civilian victims. However, regarding the unlawful
execution of public authority during the Korean War, which was also included
in the petition, it is duties and responsibilities of the government to investigate
the truth, clear suspicions, and prepare measures to restore the reputations of
the victims. Given the objectives of Article 10 and 12 of the Constitution,
Article 1 and 3 of the Universal Declaration of Human Rights, and other
international conventions for promotion and protection of human rights, and in
view of human dignity and right to seek truth of families stipulated in these
provisions, the truth needs to be investigated. Furthermore, considering that the
victims and bereaved families who are still suffering to this day, measures to
restore the reputations of those victimized without cause should be taken.
The Commission presented its opinion to the Speaker of the National
Assembly and the Prime Minister, asking them to take full steps for the
legislation of an integrated special law on fact finding about the unknown large
number of civilian victims at the time of the Korean War, including
investigation into the number and actual conditions of civilian victims
nationwide and actual conditions during the war and restoration of the
reputations of victims, as the state has duties to guarantee the well being of its
people. At the same time, the Commission emphasized that the fact finding
process should be conducted in such a way that it does not violate basic law
and order for free and democratic society under the Constitution, and that clear
standards, procedures, and methods should apply so that the problem of equality
might not be raised. Forty seven assemblymen including Kim Won wung
proposed a bill on the `Draft on Fact finding of Civilian Victims during the
Korean War and Restoration of the Victims,' but it was rejected at the plenary
session of the National Assembly.