Wed, Feb 28, 2001 - Page 8 News List


Rights for all, always

Your newspaper is to be commended for its integrity in uncovering the true nature of Taiwan's human rights abuses committed by the KMT forces while under the Supreme Command of the Allied Powers during the period 1945-51. Prior to the formal Japanese surrender of Taiwan, this period of administrative authority was unofficially conducted under General Douglas MacArthur. Articles such as "Taiwan's Deepest Scar" (Features, Feb. 25, page 17) have begun to expose the abuses committed by the Chiang regimes while acting as military governors under US occupational tutelage. Contrary to belief, that period of military occupation was never formally concluded between the US and ROC, and therein lies an intriguing footnote of history with very complex legal issues involving the 228 Incident.

Despite the ROC claims to Taiwan after the 1951 San Francisco Peace Treaty (SFPT), the placing of Taiwan's international status under SFPT's occupational terms made for serious conflict over its status. The SFPT is not only a peace treaty but the highest legal authority for the "occupational jurisdiction" which placed the Taiwan concession by Japanese surrender into the specific jurisdiction of certain related US laws such as the beloved "human rights clause" of the Taiwan Relations Act (TRA). Because of the SFPT and TRA, the military occupational jurisdiction of Taiwan is still considered valid, and thus Taiwan is quite possibly subject to the judiciary jurisdiction of the US Supreme Court for human rights violations by military personnel.

In 1900, the US Supreme Court ruled on a series of landmark cases called the Insular Cases. These cases collectively ruled on the status of all foreign territories ceded into the administrative jurisdiction of the US military government as often provided for by a treaty. In 1898, the US secured Cuban independence from Spain in the Treaty of Paris. However, the US Supreme Court ruled in Neely versus Hankel that the "Republic of Cuba" was not yet a de jure country but instead a "foreign territory" held under indefinite military occupation.

This occupational trusteeship of the "Cuba status" so closely parallels the "Taiwan status" that it is quite remarkable proof that legal history does repeat itself.

With regard to human rights violations, the Insular Cases ruled in Downes versus Bidwell that certain "basic constitutional rights" applied to the local inhabitants of ceded "foreign territories" held in the trust of an occupational jurisdiction. These legal rights to "life, liberty and property" were held to be the legal equivalent of constitutional rights extended to Chinese aliens residing in sovereign US territories under the notorious Chinese Exclusion Act.

As basic as these rights were under the US Constitution, Congress foresaw the need to promise an "enhancement" of these rights under the TRA. It does seem that the occupational status of Taiwan has a silver lining which legal practitioners need to further explore with regard to seeking financial restitution on behalf of the victims of KMT torture and genocide. Such violations occurred under the supreme command of General MacArthur during a period of military occupation. The human rights of people of Taiwan are inalienable and they deserve some justice now.

Jeff Geer

Las Vegas, Nevada

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