Protecting Victim Rights: The Role of the National Human Rights Commission of Korea

Author:Andrew Wolman
Position:Assistant Professor of Human Rights and International Law, Graduate School of International Area Studies, Hankuk University of Foreign Studies, Seoul, Korea. B.A.(Princeton), J.D.(N.Y.U.), LL.M.(George Washington)
Pages:457-479
SUMMARY

Since its establishment in the year 2001, the National Human Rights Commission of Korea has assumed the role of primary governmental entity addressing human rights issues in the country. In addition to investigating complaints of human rights violations and discrimination, the NHRCK has a policy advisory function, and engages in research, education, and publicizing of human rights issues. This... (see full summary)

 
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1. Background

Over the last fifteen years, National Human Rights Institutions (“NHRIs”) have emerged in more than a hundred countries around the world.1 NHRIs can be characterized as independent administrative organizations established by governments to protect and promote human rights.2 Within the Asia-Pacific region, there are now fourteen NHRIs that are full members of the Asia Pacific Forum, a regional association of NHRIs.3 While the specific mandates of Asian NHRIs vary widely, in general they have broad-based mandates based on universal human rights standards, and have the power to both advise their governments on human rights issues and investigate allegations of human rights violations. These institutions are seen as particularly important to human rights protection in Asia due to the lack of a regional human rights mechanism.4

Within the advocacy community, there has been hope that these new human rights institutions could be effective in promoting victim rights.5 Over the past few decades, there has been an increased recognition that victim rights are encompassed within the broad scope of the international human rights framework.6 International standards for victim rights are contained most prominently in the 1985 United Nations General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (“U.N. Declaration”).7 In this Declaration, the U.N. member states provided for broad assurances to victims in the areas of access to justice and fair treatment, restitution, compensation, and victim assistance.8 More recently, the U.N. has issued aPage 459Handbook on Justice for Victims and Guide for Policy Makers to aid in implementation.9 Some Asian countries have accepted the U.N. Declaration as an explicit guide for victim rights legislation.10 However, in general, state practice has lagged behind the normative assurances provided in the Declaration, as is unfortunately often the case with international human rights instruments.11

In fact, in a number of countries, including Korea,12 Mongolia,13 New Zealand,14 and India,15 NHRIs have indeed played a proactive role in the national debate over the protection of victim rights. However, while there have been a number of general studies evaluating the work of various NHRIs over the years,16 there has not yet beenPage 460significant scholarship regarding whether and how NHRIs specifically address victim rights issues. This paper attempts to begin to fill that gap by presenting a study of the role of the National Human Rights Commission of Korea (“NHRCK”or “Commission”) in protecting victim rights. Korea presents an attractive candidate for a case study as it has one of the world’ s more vigorous and powerful NHRIs, one that plays a leadership role on the international level and is sometimes used as a model in the rest of Asia.17 Thus, it is my hope that an in depth analysis of how the NHRCK has contributed to the protection and promotion of victim rights field can provide guidance for other countries as to the different ways in which their NHRIs can play a productive role on victim rights issues, in addition to highlighting possible avenues for Korean victim rights advocates to press the NHRCK to address victim rights issues more effectively.

The outline of this paper is as follows. First, it provides a summary of the composition and function of the NHRCK, as background. Then, after a brief overview of the current framework for protection of victim rights in Korea, the paper discusses the actions that the NHRCK has taken so far to ensure that the Korean Ministry of Justice protects the rights of crime victims. The paper will next discuss the NHRC’s own policies regarding victims of human rights abuses who are able to petition the Commission directly. Lastly, the article will review the other actions that the NHRC has taken to promote victim rights by working with private sector organizations.

The article will concentrate throughout on six main areas of victim rights that have been highlighted in current discussions of victimology, namely: (1) the right to receive support and assistance; (2) the right to receive information related to the victim’ s case; (3) the right to receive protection in appropriate circumstances; (4) the right to participate in proceedings related to the victim’ s case; (5) the right to restitution or compensation, and (6) the right to freedom from discrimination in the exercise of these rights.18 These areas are also among those addressed most prominently in the U.N. Declaration.19

This article will address the NHRCK’ s policies regarding the rights of both ordinaryPage 461crime victims and victims of human rights violations. The scope of the article is thus consistent with the U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which in addition to covering crime victims, also explicitly applies to individuals who “have suffered harm [...] through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.” 20 Section 6 will deal with the rights of victims of human rights abuses, while the remainder of the article will concentrate on the rights of crime victims.

2. Introduction to the NHRCK: A Comparative Perspective

The NHRCK was established in 2001 pursuant to the National Human Rights Commission Act21 as the most important body in Korea dealing with human rights issues. The Commission was one of several national human rights institutions founded in Asia during the decade between 1993 and 2003 in the wake of the 1993 Vienna World Conference on Human Rights and the adoption of the Principles Relating to the Status of National Institutions ( “Paris Principles” ) by the United Nations General Assembly in that same year. These institutions include, among others, the National Human Rights Commission of India (founded 1993), the Indonesian National Commission on Human Rights (founded 1993), the Human Rights Commission of Malaysia (founded 1999), the National Human Rights Commission of Thailand (founded 1999), and the National Human Rights Commission of Mongolia (founded 2001).22 The establishment of the NHRCK was an important milestone in the development of a human rights culture in Korea, and was the result of years of lobbying by human rights activists (including victim support groups), academics and lawyers.23

The Commission is composed of 11 members, including a Chairperson, three Standing Commissioners and seven Non-Standing Commissioners.24 While all members are appointed by the President of Korea, four of the Commissioners (including two Standing Commissioners) are nominated by the National Assembly, three Non-standing Commissioners are nominated by the Supreme Court, and the remaining four members (including the Commission’ s Chairperson and one Standing Commissioner) are nominated by the President of Korea.25 The Members are supportedPage 462by a 164-person strong Secretariat.26 Prior to April, 2009, there was a staff of 208, but the President recently slashed the number of employees at the Commission, despite protests from the Commission itself as well as domestic and international human rights advocates.27

The Commission’s tasks include: analysis, research and issuance of recommendations on human rights statutes and bills, legal and judicial systems, policies and practices; investigation of allegations by individuals of discriminatory acts and human rights violations and recommendations of remedies; implementation of human rights education and awareness programs; issuance of proposals and guideline recommendations for various categories of human rights violations, determination standards, and preventive measures; issuance of recommendations or opinions with respect to the ratification and/or implementation of international human rights treaties to which Korea is a party, and cooperation with domestic and overseas human rights organizations and institutions.28 Among these tasks, this article will concentrate on the Commission’ s advisory role and the Commission’ s investigation of complaints as they pertain to victim rights issues, and will review in lesser detail some of the other functions of the Commission to the extent that they impact victim rights issues.29

The Commission operates independently of other branches of government30 and has, over the course of the past eight years, come to play a relatively prominent role in Korean society. Although there have been (and continue to be) occasional challenges to Page 463 the Commission’ s independence31 and its opinions are not always heeded by other branches of government, few would deny that it has carved out an important role as the “conscience of the state”by highlighting areas where human rights improvement is needed and providing an outlet for victims of human rights abuses. According to a 2008 analysis, the NHRCK was one of only two NHRIs in Asia to enjoy a “fair amount of independence and autonomy from government interference,”with the Indonesian Komnas HAM being the other one.32

One aspect of the Commission’ s work that is worth stressing is that in both its policy advisory role and its investigatory role, the NHRCK is unable to issue decisions with binding power, and can only recommend particular courses of action, such as discontinuing human rights violations; providing compensatory payment of damages; implementing measures for the prevention of the same or similar human rights violations in the future; and rectifying or improving...

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