Republic of Korea
Practice Relating to Rule 150. Reparation
The Republic of Korea’s Military Law Manual (1996) provides that any party injured by a violation of IHL by the enemy can ask for remedies.
In its decision in the Legislative Omissions case
in 2003, the Republic of Korea’s Constitutional Court dismissed a constitutional complaint seeking a declaration that the National Assembly had breached its constitutional obligations by failing, despite repeated requests, to order a fact-finding mission and payment of compensation to the victims of the massacre of civilians at Moongyung-Kun and Hahmpyung-Kun during the Korean War, allegedly by members of the Korean Army.
The Court ruled that the State had a constitutional obligation to protect the basic rights of its citizens, but went on to state:
However, as long as there are the investigatory system set forth in the Criminal Procedure Act and the state compensation system under the State Compensation Act, an additional state obligation to enact a law for factfinding and compensation concerning the incident at issue in this case is not generated by constitutional interpretation, as argued by the complainants. It would be desirable for the legislators to enact a separate special law for factfinding and compensation under the legislative formative discretion considering the significance and specificity of damage caused by the civilian massacre and various objective circumstances that prohibited the victims in this case from timely requesting factfinding or compensation. However, such obligation to enact is not and cannot be derived through constitutional interpretation.
A constitutional complaint on the ground that legislative omissions of failing to enact a special law for factfinding and compensation with respect to the civilian massacre at issue in this case is unconstitutional is unjusticiable, apart from an affirmative constitutional complaint with respect to the incomplete statutory provision itself on the ground that an effective investigation may not be conducted and the right to seek compensation may not be properly exercised in such a special case as the civilian massacre by the state authority at issue in this case due to an excessively short or incomplete statute of limitations under the Criminal Procedure Act or request period under the State Compensation Act.
One of the nine justices gave a dissenting opinion and argued:
In a situation of nonexistence of law where a special infringement upon the basic right caused by the state organization in the period of peril such as a war cannot be appropriately redressed by way of the normal system of law, an obligation arises for the National Assembly to enact a special law to guarantee the basic rights of the citizens. Such constitutional interpretation conforms to the spirit of the Constitution for the guarantee of the basic right.
In this case, the fact that many unarmed and innocent civilians were killed by those presumed to be members of the Korean Army in Moongyung and Hahmpyung during the period of the Korean War is acknowledged and confirmed. Although it was clearly an infringement by the state organization of the basic rights of private individuals, the state has attempted to cover up the case instead of trying to find the fact of the case or compensate for the harm caused. The victims even have acknowledgedly been deprived for a long period of time of an opportunity to raise their argument before the state. In such a circumstance, it is difficult to expect the victims to timely file a lawsuit against the state for restitution or compensation.
Especially in this case, the state under the obligation to protect its citizens is suspected to have killed, in an organized fashion, innocent civilians by way of military power during the war. If proven to be true, such conduct would be a genocide-like act and, as such, would duly be treated similarly to a genocide or treated as a crime against humanity.
Then, a normal system of law such as the statute of limitations under the State Compensation Act is not applicable in this case. In such a situation of nonexistence of law, a special obligation to enact law to redress (especially an obligation to effectively guarantee the right to request state compensation) arises for the National Assembly through constitutional interpretation based on the obligation to guarantee basic rights under the second provision of Article 10 of the Constitution.
Upon ratification of the 1977 Additional Protocol I, the Republic of Korea declared:
In relation to Article 91 of Protocol I, a party to the conflict which violates the provisions of the [1949 Geneva] Conventions or of this Protocol shall take the responsibility for paying compensation to the party damaged from the acts of violation, whether the damaged party is a legal party to the conflict or not.
In 1998, the Government of the Republic of Korea established a trust fund to provide compensation to 155 women used as sex slaves by the former Japanese Imperial Army. The Government of the Republic of Korea indicated that it planned to collect the value of the fund (5 million yen) as compensation from the Japanese Government.