Mon, Aug 05, 2013 page8

• Hung case indictments fail to fit the crimes

  • By Wu Ching-chin 吳景欽
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  On Wednesday, the military prosecutors’ investigation into the death of army corporal Hung Chung-chiu (洪仲丘) came to a close. Since as many as 18 military personnel were indicted, the military might be able to mollify public anger over the death. Judging from the varying gravity of the charges, it seems the military is helping some officers shirk their responsibilities. This makes it very unlikely that the public will ever know the truth about Hung’s death.

  The Criminal Code sets rather strict conditions for making a group of offenders “joint principal offenders.” Apart from acting jointly in the commission of a crime, the group must also share criminal intent. In this case, Hung was abused to death by a group who tortured him by exploiting flaws in the military’s disciplinary system. Although they acted jointly, there is no evidence that they shared criminal intent. It appears to be difficult to make all the suspects “joint principal offenders” based on Article 44 of the Criminal Code of the Armed Forces (陸海空軍刑法), which states that if a soldier is abused to death, the offender or offenders “shall be punished with imprisonment for life or no less than seven years.”

  As a result, Staff Sergeant Chen Yi-hsun (陳毅勳), who oversaw Hung’s confinement, is the only “principal offender” and so faces the heaviest punishment for the corporal’s death. The others were charged according to Article 45 of the Criminal Code of the Armed Forces and face a maximum sentence of one year.

  Even if they were tried in the civil judicial system, they would only be charged with “minor offenses” under the Criminal Code. This is tantamount to blaming the front-line personnel executing the punishment, while ignoring the structural nature of the offense. The indictment’s suggestion of heavy punishment for several of those indicted is only a declaration of intent and will not necessarily be carried out.

  Hung’s death highlights the difficulty of assigning responsibility for perpetrators of structural crimes. This is particularly true because high-ranking officers are unlikely to commit any offense in person, or order their subordinates to do so in writing. This allows them to pass the buck to their subordinates without much effort. Even if high-ranking personnel are punished, they will be charged with minor offenses or receive demerits.

  However, even if non-

  commissioned officers claim they have committed an offense on the order of their superiors, the responsibility still falls on them. As a consequence, most generals never face any punishment for such crimes.

  According to Article 33 of the Rome Statute of the International Criminal Court, any orders to commit crimes against humanity are manifestly unlawful and low-ranking subordinates do not have to follow them. The statute states: “The fact that a crime has been committed by a person pursuant to an order of a government or of a superior shall not relieve that person of criminal responsibility.”

  Article 28 of the statute states: “A military commander shall be criminally responsible for crimes committed by forces under his control, as a result of his failure to exercise control properly, where that commander either knew or should have known that the forces were committing or about to commit such crimes.”

  This highlights the collective responsibility for military crime.

  The military prosecutors’ investigation into Hung’s death was concluded quickly. Perhaps this was done to demonstrate the efficiency of the prosecutors and ease public criticism. However, if prosecutors cannot determine the structural nature of the offense and only indict on minor charges, they will only invite further criticism.

  Wu Ching-chin is an associate professor of law at Aletheia University.

  Translated by Eddy Chang
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