Compared with the search for conventional justice, transitional justice is a very new idea. Not until the Allies of World War II were confronted with a large number of officers and collaborators of the Nazi regime after the war did transitional justice emerge as a concept that spans history, culture, politics, law and international relations. However, even now, transitional justice is still more a matter of slogans than of substance. In practice, there are many highly controversial laws whose framers thought were excellent, yet the societies that these laws were meant to heal are still full of resentment and dissatisfaction.
For example, the Nuremberg Trials held after World War II can be thought of as the first attempt to seek transitional justice, but many academics criticize the trials as being “victor’s justice.” Years later, the arrest and trial of Nazi lieutenant colonel Adolf Eichmann was even more flawed in its procedure. The final execution of his death penalty was also dubious in terms of human rights, as the prison intentionally used a short rope to hang Eichmann so that he slowly died of suffocation without losing consciousness. Clearly, this was a violation of the ideals that transitional justice is supposed to champion.
Transitional justice might also involve accommodating practicalities by intentionally blurring the accountability of criminals and “healing an arrow wound by sawing off the shaft.”
More hypocritical still is that it often becomes a means of self-legitimation for successor regimes. One example is the amnesty law enacted in Spain following the death of former Spanish prime minister Francisco Franco. Another is former president Lee Teng-hui’s (李登輝) “quiet revolution” in Taiwan.
The same kind of thing happened in Germany, where, during the Cold War, seeking justice with regard to the Nazi regime was deemed to be far less urgent than the fight against communism. It was not until after the unification of East and West Germany in 1990 that transitional justice was put into practice, nearly 40 years late, in the form of settling accounts with the former East German communist regime.
A settling of accounts need not imply revenge. Rather, it means using the law to clarify the accountability of a former regime for violations of human rights. That is different from the Cold War period, when the West German government and Western European nations largely tolerated Israeli special agents’ extrajudicial executions of fugitive Nazi war criminals.
The second wave of transitional justice in Germany was relatively flawless, but, unfortunately, it could not be a model for Taiwan to emulate. The Nazi regime was completely eliminated and there was no legal succession between it and the post-war German government. East Germany’s communist regime was also completely dismantled following the collapse of the Soviet Union in 1991, so that judges, prosecutors and other communist officials did not remain embedded in the government. Germans could therefore make relatively straightforward judgements about right and wrong, undisturbed by power deals.
The situation that Taiwan faces is quite different. The kinds of crimes that transitional justice is supposed to deal with are still going on. Martial law ideology is still part of Taiwan’s cultural DNA. Compromising deals that involve coexisting with the devil are commonplace. The killers’ descendants can turn up at the legislature dressed up like idols in a TV drama, without even having to apologize. The son of the “butcher of Kaohsiung” still owns wealth that was plundered by the party state. The dictators’ spin doctor keeps making bids for political power and has never shown a hint of regret. Victims’ families openly extol the perpetrators as role models. There are far too many such confusions of values to mention them all.
Why is it so? To some extent, it arises from the illusions of the so-called “quiet revolution.” Following its democratization Taiwan has had two successive presidents from different political camps — Lee of the Chinese Nationalist Party (KMT) and Chen Shui-bian (陳水扁) of the Democratic Progressive Party (DPP) — but the most urgent task for both of them was not to deal with external pressure, but to convince their own political camps that the power they had inherited was legitimate.
Lee had to convince the KMT that Taiwanization was a safe road to take, while Chen had to convince the DPP of the need to adapt to the Republic of China. For both of them, transitional justice was both a placebo and a source of trouble, while their consistent highest principle was compromise. As for President Ma Ying-jeou (馬英九), he is merely a restoration puppet whose ideology has regressed to that of dictators Chiang Kai-shek (蔣介石) and Chiang Ching-kuo (蔣經國).
One good thing is that the KMT’s recent electoral defeat could be a ray of light, with the new legislature and government for the first time offering a chance to make Taiwan’s transitional justice more substantial.
However, this is just a possibility, because we have not even set out on the first step of the journey. In fact, we have not even worked out the direction on the map. As post-structuralist philosopher Jacques Derrida said, without a basic principle of responsibility, justice is not just impossible, but unimaginable.
Li Chung-chih is a professor at Illinois State University.
Translated by Julian Clegg
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