Abstract

Excerpted From: Eric K. Yamamoto and Suhyeon Burns, Apology & Reparation: The Jeju Tragedy Retrials and the Japanese American Coram Nobis Cases as Catalysts for Reparative Justice, 45 University of Hawaii Law Review 5 (Winter 2022) (450 Footnotes) (Full Document)

In a rare intersecting moment of law and history, Judge Jegal Chang of the Jeju District Court in South Korea rendered an extraordinary ruling sweeping away seventy years of injustice. In January 2019 Judge Chang expunged the decades-old criminal records of the eighteen wrongfully convicted survivors of the Jeju April Third (4.3) Tragedy. Euphemistically called “an incident,” and marked by widespread violence and immense suffering, the 4.3 Tragedy swept across an entire island of villagers during the supposed “peacetime” between World War II and the Korean War. Initiated by the U.S. Military Government and then overseen by U.S. Military officials, South Korean armed forces killed an estimated 30,000 island villagers, detained and tortured thousands more and burned down nearly all seaside villages. All fueled by the mischaracterization of Jeju as an “island of reds.”

Government military tribunals also summarily “convicted” over 2,500 residents en masse in 1948-1949, leading to many executions and harsh indefinite imprisonment for alleged “rebellion,” “aiding and contacting the [Communist] enemy” and “espionage.” Seventy years passed without rectification of the injustice. Finally, in 2017, eighteen of those convicted petitioned the Jeju court to vacate their military convictions and remove the groundless stain of disloyalty from their family records. The survivors' petition served as an integral part of South Korea's started-stalled-rejuvenated twenty-year initiative to heal the Tragedy's persisting wounds.

Recognizing the national significance of the petitions, Judge Chang asked petitioners' supporters to search for global precedent for reopening decades-old manifestly unjust criminal convictions - all as a part of a larger societal reparative justice effort. Supporters provided a translated legal-historical account of the U.S. courts' coram nobis cases from the mid-1980s. Those American cases reopened the U.S. Supreme Court's World War II rulings upholding the presidential and military orders precipitating the curfew for and forced removal of West Coast Japanese Americans. More specifically, the federal courts' coram nobis rulings wiped away the forty-year-old convictions of resistors Fred Korematsu, Gordon Hirabayashi and Minoru Yasui and effectively cleared the names of all 120,000 Japanese Americans forcefully removed and incarcerated on the basis of falsified government claims of group threats to national security. The courts' rulings in those coram nobis proceedings, along with the Supreme Court's earlier Endo decision, laid the judicial cornerstone for the 1988 U.S. Civil Liberties Act's presidential apology, government reparations and public education projects - an acceptance of American responsibility for its past civil and human rights transgressions.

After accepting the translated account of the coram nobis reopenings and taking preliminary testimony by the eighteen 4.3 survivors-petitioners, Judge Chang issued a startling order setting aside the convictions and initiating new trials. The retrials quickly commenced in late 2018, with the Korean nation watching. In a moment worthy of the best Netflix drama, the prosecution itself uplifted the petitioners' contention that their military convictions were a sham, an integral part of the Jeju 4.3 injustice marked by the deaths and horrible suffering of tens of thousands of ordinary villagers. The government prosecutor asked the court to dismiss the indictments and clear the petitioners' names. He hoped that this judicial ruling would help heal the persisting wounds by, in his words, recognizing and “sharing in some small way in the bitter suffering of these people, and in the suffering of history and [of] the Korean nation, and to bring the truth of what happened then to light” now. The national government prosecutor spoke the language not of criminal procedure but of social healing through justice.

In an eloquent order-opinion, Judge Chang then formally dismissed the indictments in January 2019, clearing away the convictions and also effectively absolving the 2,500 other Jeju residents wrongly convicted en masse by the military tribunals. A landmark criminal procedure and human rights ruling for South Korean courts. In one survivor's words, “The red mark [of April 3 has been erased from our names, and all the stigma of having been in prison has been lifted.” For decades, survivors and their families lived ostracized as second-class citizens and untouchables. “I endured life in prison without the kind of trial we saw today. That left me with bitterness in my heart, and now I have been acquitted. I don't [know] what else to say.”

As developed in Part III, the Jeju court's ruling exonerated those eighteen 4.3 survivors persecuted seventy years earlier, declaring their convictions “invalid in violation of legal regulations.” Technically, the court found the mass convictions unlawful because the government failed to properly charge the survivors with crimes or present any evidence of guilt. More broadly, the court situated the mass convictions amidst the carnage of the Jeju 4.3 Tragedy - later crafting a compensation award in light of the case's “historical significance.”

Yet, as described in Part IV, even building upon the national government's earlier apology, 4.3 Museum and 4.3 Memorial and Gravesite, the Jeju court's monumental rulings did not bring full closure to the protracted reconciliation initiative. These rulings did not generate a resonant sense of 4.3 justice finally and fully done. In 2021, while acknowledging significant recent progress toward 4.3 reparative justice, including the Jeju court's rulings, Professor Eric K. Yamamoto spotlighted continuing “notable gaps and shortfalls” in economic justice for 4.3 survivors, families and communities - collectively impeding “comprehensive and enduring Jeju 4.3 social healing through justice.” For over seventy years, survivors and their families across generations suffered far more than the trauma of killings, torture and wrongful imprisonment. They sustained enormous financial losses - the destruction of homes and personal property and the devastation of village economic life. They also suffered from the guilt-by-association system that deprived survivors and extended family members of access to government jobs, business opportunities, top universities and full participation in the island economy. Past legislative and executive efforts to close the economic justice gap failed in the face of continuing political resistance.

The Jeju court's 2019 landmark decisions expunging the convictions of the eighteen survivors and awarding substantial monetary damages were significant practically and symbolically. Yet, the decisions ironically underscored the glaring void in the larger 4.3 reparative initiative. The enduring han (“deepest pain”) of the tens of thousands of other Jeju 4.3 survivors, families and communities persisted in the face of continuing political opposition to broadscale reparations and other forms of economic justice.

In February 2021, the Korean National Assembly again excluded economic justice from its much-anticipated revision of the Jeju 4.3 Special Act. Originally passed in 1999, the Special Act marked South Korea's path-forging acknowledgment of the historic injustice and efforts to repair the damage to its own citizens. Twenty years of political infighting, though, continually obstructed economic redress for 4.3 survivors and families. The Special Act's February 2021 revision established a Jeju 4.3 Trauma Healing Center and authorized minimal medical support and welfare for a limited number of survivors. But it declined to confer general reparations. For thousands who suffered directly and indirectly from the 4.3 “scorched earth” carnage, reconciliation efforts remained starkly incomplete.

In response to mounting political pressure and public education - including follow-up research, journalists' stories and scholars' assessments - the National Assembly finally approved a ground-breaking amendment to the Special Act in December 2021. It authorized government payment of $76,000 (90 million won) to each of the 10,101 designated victims of the 4.3 Tragedy for a collective sum of $767,676,000 (909 billion won). That legislative commitment to reparative action commencing in 2022, backed by President Moon's outgoing administration, amounted to the largest compensation award by the Korean government to victims of a singular past injustice. And it promised to overcome a major impediment to comprehensive and enduring 4.3 social healing - filling the gap in long delayed economic justice.

Still more remained. The 2021-2022 Special Act's approval of individual monetary payments erected technical eligibility barriers for thousands of family members. It also overlooked “capacity-building” or other forms of community-based economic justice for the survivors and communities harshly impacted through generations. And the voices of women survivors of widespread 4.3 sexual violence remained largely absent - both from the reparative discourse as well as tailored remedial measures. Finally, and potentially most important, the South Korean government again refrained from calling on the United States to acknowledge and accept responsibility for its partial yet pivotal role in the 4.3 Tragedy and to participate in next - and perhaps final - reparative steps.

This article first examines the eighteen survivors' monumental Jeju court petitions to clear away their wrongful 4.3 mass military convictions, linking them to the Japanese American resistors' coram nobis challenges to the Supreme Court's World War II rulings. In making that linkage, it teases out similarities and differences, tracking the impacts of those judicial rulings in galvanizing key aspects of the political push for legislative reparations in South Korea and the United States, respectively.

Drawing upon human rights precepts of reparative justice and multidisciplinary insights into social healing, the article then uplifts remarkable recent progress in the Jeju 4.3 social healing initiative, highlighting the Jeju court's rulings and the National Assembly's 2021-2022 Special Act revisions. It also identifies critical gaps in the 2021-2022 Act's eligibility requirements; underscores the continuing need for economic justice in the form of tailored group capacity-building to empower Jeju communities; and uplifts the importance of further reparative action to address the unique suffering of Jeju women subjected to widespread 4.3 sexual violence.

In the concluding section, through the lens of reparative justice, this article synthesizes assessments about what recently advanced and what still impedes comprehensive and enduring Jeju 4.3 social healing, acknowledging the prolonged absence of the United States from reparative initiative. A companion article - titled “Apology & Reparation II: United States Engagement with Final Stages of Jeju 4.3 Social Healing” - then evaluates the propriety and impact of America's refusal to engage along with intensifying calls by 4.3 justice advocates, scholars and human rights organizations for the United States to step up and take its place at the 4.3 reconciliation table. Linking the two articles together, the companion piece suggests a reparative path forward that may well benefit the United States, South Korea and, most important, the people of Jeju.

[. . .]

Amid a revitalized Jeju 4.3 justice movement - marked by family storytelling, artist portrayals, teacher lessons, journalist reports, scholarly assessments and political lobbying - eighteen survivors of the 4.3 mass military tribunal convictions petitioned the Jeju court in 2017 to reopen their seventy-year-old cases and clear from their records the false stain of guilt for espionage and unlawful rebellion. This article examined the monumental pleas by those survivors - for themselves and 2,500 others tortured during detention and wrongly convicted en masse without proper charges or trials. It explored the explicit linkage of those Jeju retrial petitions to the Japanese American resistors' successful 1980s coram nobis challenges to the U.S. Supreme Court's rulings during World War II upholding the forced removal and mass incarceration of Japanese Americans - laying the judicial cornerstone for the 1988 U.S. Civil Liberties Act's government apology and reparations.

The article then uplifted Jeju District Judge Chang's extraordinary 2019 rulings, with the nation watching, vindicating not only the eighteen survivors but also sweeping away the manifest injustice suffered by all. And it tracked Judge Chang's remarkable ensuing “compensation” order for the petitioners that more broadly helped galvanize - after prolonged political struggle - the National Assembly's broadscale reparations/compensation program for many 4.3 survivors and families.

Drawing upon human rights precepts of reparative justice and multidisciplinary insights into social healing, the article then assessed the remarkable recent progress in the twenty-year Jeju 4.3 social healing initiative, highlighting the Jeju court's rulings and the National Assembly's 2021-2022 Special Act revisions. It also identified critical gaps in the 2021-2022 Act's eligibility requirements; underscored the continuing need for economic justice in the form of tailored group capacity-building to empower Jeju communities; and uplifted the importance of further reparative action to address the unique suffering of Jeju women subjected to widespread 4.3 sexual violence.

In the closing parts, through the lens of reparative justice developed in the 2021 book Healing the Persisting Wounds of Historic Injustice, this article synthesized assessments about what recently advanced and what still impedes comprehensive and enduring Jeju 4.3 social healing, acknowledging the prolonged absence of the United States from the reparative initiative. The Jeju 4.3 Special Act, as reflected in its title, sought to “Discover[] the Truth” and “Restor[e] of Honor of Victims.” Jeju people, human rights advocates and scholars maintain that without the United States at the reconciliation table, aging survivors and their families, Jeju communities and South Korea as a nation cannot fully grapple with the “truth” of the Tragedy or “restore the honor” of those suffering the scorched earth violence.

A companion article to this work - titled “Apology & Reparation II: United States Engagement with Final Stages of Jeju 4.3 Social Healing ” - evaluates the propriety and impact of America's refusal to engage along with intensifying calls by 4.3 justice advocates, scholars and human rights organizations for the United States to step up and take its place at the 4.3 reconciliation table. Linking the two articles together, the companion piece suggests a path forward that may well benefit the United States, South Korea and, most important, the people of Jeju. Comprehensive and enduring Jeju 4.3 social healing through justice awaits.

Fred T. Korematsu Professor of Law and Social Justice, William S. Richardson School of Law, University of Hawai'i. The authors express their sincere appreciation to Taylor Takeuchi, Abigail Lazo, Siena Schaar, and Micah Miyasato for their valuable research and editing assistance.

William S. Richardson School of Law, Class of 2023, University of Hawai'i.