Mechanisms and Contexts of Transitional Justice: South Korea and Taiwan in Comparative Perspective
Date Issued
2014
Date
2014
Author(s)
Lee, Yi-Li
Abstract
Governments usually are required to deal with the issues of past human rights violations after political situations shift from war to peace or from authoritarian regime to democracy. Since World War II, the mechanism of transitional justice in addressing past human rights violations has become increasingly diverse around the globe. This dissertation endeavors to analyze political, social and legal factors that have contributed to such a diverse development and to discuss in what ways and to what extent some mechanisms were adopted in contexts reflective of what political, social and legal factors. Based on these contextual analyses, this dissertation further compares the practices of transitional justice in South Korea and Taiwan and explains their respective transitional justice mechanisms and contextual factors underlying those mechanisms.
This dissertation adopts a holistic approach to understand the definition of transitional justice. The discussion on the development of transitional justice mechanisms and their respective contexts is channeled through the methodology of historical institutionalism. This dissertation finds that the evolution of transitional justice mechanisms and their respective contexts after World War II can be categorized into three periods, and that the two driving forces –international and democratic– have played different roles in these periods. International forces played a major role in the first period: the international society not only established international criminal tribunals to deal with the responsibility of serious war crimes, but also built up international human rights regimes to ensure the protection of human rights. In the second period, newly established democracies adopted multiple transitional justice mechanisms from criminal trials, to truth commissions, lustration, compensation, amnesty and to access to historical archives. Various democratic factors such as the types of democratic transition, the nature of party competition, the participation of civic groups or the success of constitutional reforms may have either influenced or constrained the development of transitional justice mechanisms. The third period is created by and characterized with the cooperation of domestic, regional and international human right institutions and networks. Under the impact of both internationalization and democratization, the international community and domestic governments have established a global governance network of human rights to address the issues of transitional justice.
Having examined the experiences of transitional justice in South Korea and Taiwan, this dissertation finds that the two countries adopted distinct transitional justice mechanisms to deal with the issues of human right violation. South Korea has chosen diverse mechanisms, such as criminal trials, truth commissions, compensation, retrial, and recovering the honors of victims. In contrast, Taiwan adopted compensation as the primary mechanism without addressing the responsibility of perpetrators. The differences in transitional justice mechanism between South Korea and Taiwan are reflective of their respective different contexts. In South Korea, the democratic forces –particularly the active participation of civic society and the path of democratic transition and constitutional reforms– have led to the diversity of transitional justice mechanisms. In Taiwan, however, the legacy of authoritarian regime, the negotiation-based democratic transition and incremental constitutional reforms and insufficient participation of civic groups have constrained the development in creating various transitional justice mechanisms.
In addition, international forces also influence the evolution of different mechanisms in South Korea and Taiwan. As South Korea has actively participated in the international law regimes during and after the democratization, the creation and performance of transitional justice mechanisms have been in varying extents monitored by the international human rights regime. Furthermore, South Korea enacted a few domestic laws to implement the international human rights conventions in order to deter the recurrence of human rights violations. Compared with South Korea, Taiwan has had difficulty in the participation of the international human rights regime due to its troubled statehood. Although Taiwan voluntarily ratified the two international human rights covenants and invited independent experts to review the state reports, the government has not responded to the recommendations made by the experts in this regard.
The finding of this dissertation confirms that both international and democratic forces have shaped the development of transitional justice mechanisms after World War II. Analyzing the interactions between mechanisms and contexts, this dissertation argues that a new political regime may adopt investigation mechanism to address the issues of human rights violations if international forces outweigh domestic constraints. If domestic constraints persist, a new political regime may instead adopt amnesty or compensation mechanism. It is important to note that the international forces have provided a leading role in the age of globalization, particularly with the establishment of the International Criminal Court and the involvement in the issues of transitional justice by regional courts and the United Nations. Along with the global network of human rights, the linkage between transitional justice and international human rights norms has become closer. Notwithstanding the dominance of international forces, the mechanisms of transitional justice may still be substantially constrained by domestic democratic forces and respond to human rights violations in different ways.
Subjects
轉型正義機制
人權侵害
脈絡因素
國際化動力
民主化動力
SDGs
Type
thesis
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