The Nguyen Decision: The Landmark Decision Finding South Korea’s Liability of Phong Ni Massacre and its Future Implications in Modern East Asian Politics

By: Jess Hwang

February 28, 2023

On February 7th, 2023, the Seoul Central District Court ruled in favor of Plaintiff Nguyen Thi Thanh. She claims she is a victim of a massacre in Phong Ni village by South Korean troops in 1968 during the Vietnam War. This ruling imposes several significant future implications for East Asia peace, as it was one of the rarest times that the atrocity was acknowledged by the court in a perpetrator state. 

Near Phong Ni, survivors of the massacre established an epitaph of hatred and curses against the South Korean troops. Vietnamese government eventually changed the epitaph to a memorial stone upon establishing a diplomatic tie with South Korea. But the damage and the resentment against the South Korean troops remained. Since 1999, there had been efforts by advocacy and media groups to raise awareness of the massacre and demand a government investigation. The past few presidents have expressed their sorrow for the atrocities, but the government had never openly admitted its liability. For this reason, the recent ruling from the Seoul Central District Court is viewed as an unexpected triumph. 

South Korea sent 300,000 soldiers to fight along with the US and South Vietnam forces against the communist force, from 1954 and 1975. Plaintiff filed a lawsuit in 2020, seeking about USD 23,000 in damages. The plaintiff claimed that she is a survivor of a massacre by South Korean troops in Phong Ni. She explained that she was shot in her stomach by one of the soldiers and witnessed the death of her five family members. South Korean government counterargued raising the possibility that those who caused the massacre weren’t South Korean troops but rather Vietcong fighters disguised in South Korean uniforms who were attempting psychological warfare. However, several pieces of evidence and witnesses demonstrated the contrary. The US military report from US National Archives and Records Administration also documented that at least 70 people were killed in the massacre. A veteran, identified only as Mr. A, testified that he witnessed the massacre and the massacre was ordered by his superiors. The court further held that State Compensation Act applies here. The Act states that “if a public official belonging to the government of the Republic of Korea intentionally or negligently causes damage to another person while performing his or her official duties, the state must compensate the victim for the damage.” But when the damaged person is a citizen of a foreign country, the act is applicable only when there is a Mutual Assurance between South Korea and the country that the damaged person is a citizen of. Mutual Assurance in the State Compensation Act exists when both South Korea and the foreign country had a mutual recognition of the foreign nationals’ right to compensation from the state. This provision was introduced to prevent disadvantages that only Korea could suffer and promote equality in international relations. The Supreme Court of Korea held in 2015 that “if the conditions for the occurrence of claims for state compensation between Korea and foreign countries are not significantly out of balance, and the requirements set in foreign countries are not more severe than those set in Korea . . . it is reasonable to conclude that the requirements for Mutual Assurance have been met to apply State Compensation Act.” South Korea challenged the application of the State Compensation Act, arguing that the Court should instead apply the civil law of Vietnam back in 1968. But the District Court disagreed. The court also disagreed with the South Korean government’s second assertion that the statute of limitations has passed. The court reasoned that “there was a reasonable obstacle that prevented Nguyen from exercising her right to compensation until recently.” Therefore, the court found the South Korean government’s liability and ordered the government to pay damages to Nguyen. The South Korean government appealed. 

The Nguyen decision raised welcoming and concerning voices at the same time. The decision was celebrated within Vietnam. The Vietnamese state-governed media reported the decision as “the victory of the truth in the 1968 massacre by South Korean troops.” The Jeon Viet newspaper, which is widely known nationwide, reported that “the Korean government won the case against the victims of the Phong Nhi Massacre, and the pain is alleviated.” But the voice condemning the decision is the majority in South Korea. South Korea’s defense minister insisted the country’s soldiers didn’t commit any massacres during the Vietnam War and indicated the government will appeal the Nguyen decision. The country’s Marine Corps Veteran Association raised a concern that the decision has tainted the honorary reputation of young Korean soldiers who sacrificed their youth and are suffering from the battle even to this day. While the government and veterans are condemning the decision, there are neutral voices raised among civilians. Those civillian voices often highlight South Koreans’ “obligation to give a proper apology to Vietnam while also respecting the sacrifices made by the South Korean troops.” 

Despite the controversy, the Nguyen decision gives several important future implications for East Asian politics. First, the Nguyen decision marked the first time a judicial branch of South Korea found the government responsible for the mass killings of Vietnamese civilians. The decision may mean more than individual victims finding justice. It may lead to more future lawsuits by the Vietnamese victims to claim compensation for South Korean troops’ wrongdoing. It may also lead the legislative branch to implement a law thoroughly investigating the civilian massacre allegedly caused by South Korean troops. Previously, proposals for such laws had been continuously vetoed within the National Assembly. However, the proposal may be reevaluated and is expected to receive more support. Second, the decision may create a new historical narrative about the Vietnam War. Historically, South Korea has been depicting its participation in the Vietnam War as a heroic act for world peace. But this depiction is contrary to most states’ descriptions of the war. Even back then United States Secretary of Defense Robert McNamara described the war as a “mistake.” Thus, the Nguyen decision may be the first and a necessary step for a new perspective on the war to be introduced in South Korea. Lastly, the decision may serve as a model paving the way for more reparations within East Asian countries. East Asian countries have historically colonized or declared war against each other. Even today, for example, China has constantly imposed threats against Hong Kong and Taiwan. But the Nguyen decision is one of the rare times that the government was ordered to be liable for the civilian massacre. Therefore, more advocates and courts within East Asia may encourage more reparations to be made and more liabilities to be found. 

Provided that the first Nguyen decision suggests important changes in the prospect of East Asian politics, the direction of how the future Nguyen cases will be ruled is a discussion that garners great attention. Regardless of what the outcome might be, the public acknowledgment of itself as a perpetrator, and assuming responsibility for the wrongdoing, is an essential and meaningful step to resolving conflict and creating peace. The Nguyen decision, therefore, demonstrates that courts assumed this role of resolving conflict and that courts may play a more active role in bringing peace to East Asian Politics.

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