Penalties show urgent reasons to update law

By Wu Ching-chin 吳景欽  / 

Fri, Mar 14, 2014 - Page 8

The Taoyuan District Court has ruled on the Hung Chung-chiu (洪仲丘) case. With one exception, all the defendants were sentenced to five or six months in jail. The ruling led to an immediate outcry over what many saw as overly lenient sentences, with doubts raised over the legal system’s ability to address structural wrongdoing.

According to Article 44 of the Criminal Code of the Armed Forces (陸海空軍刑法), a commander who abuses a subordinate can receive a sentence of “not less than three years and not more than 10 years,” and if the abuse results in the death of that subordinate, the commander can be given a life sentence or a custodial sentence of not less than seven years.

Hung’s death was caused by a group of army officers who were accused of hiding behind a flawed military disciplinary system to retaliate against the corporal. Therefore, the defendants ought to have been punished for causing death through conspiring to abuse a subordinate.

Unfortunately, to establish joint criminal conduct, there must be proof of communication demonstrating criminal intent and action. During the initial military investigation, no evidence surfaced of communication demonstrating criminal intent. Consequently, there were no grounds on which to pursue the defendants’ joint responsibility.

With the exception of the guard, who should be held responsible for this, the other defendants either could be punished according to Article 45, Paragraph 2 of the Criminal Code of the Armed Forces, under which the maximum punishment within the law would be “imprisonment for not more than one year” for “punish[ing] the subordinate without the regulations category,” or according to the Criminal Code for the relatively less serious crimes of “offenses against personal liberty” or “the dereliction of duty resulting in death.”

In a military organization, commanding officers certainly would not be stupid enough to issue a written order to carry out illegal activity. It is therefore easy for them to pass responsibility on to their subordinates — even to those at the very bottom of the command structure — and to absolve themselves of any responsibility.

The courts’ inability to address this kind of structural crime, coupled with the lack of evidence brought to light during the investigation, means the defendants could not be found culpable and were let off lightly. Although this comes as no surprise, it does reveal the limitations of Taiwan’s criminal law, in its current form, to deal with this kind of criminal behavior.

In 1998, various countries signed the Rome Statute of the International Criminal Court. Article 33 of this statute says that a crime that “has been committed by a person pursuant to an order of ... a superior, whether military or civilian, shall not relieve that person of criminal responsibility.” Also, Article 28 states that, in circumstances in which a command structure exists, if a commander has knowledge of abusive behavior on the part of a person under their command and does nothing to prevent it, they are also criminally liable. To quote, if he or she fails “to take all necessary and reasonable measures within his or her power to prevent or repress their commission” he or she “shall be criminally responsible for crimes ... committed by forces under his or her effective command and control.”

Taiwan is not a signatory to the Rome Statute. Nevertheless, it cannot ignore the international trend toward human rights. Lawmakers should codify the precepts of the statute into municipal law and judges should implement its spirit, to manifest the universal value of human rights.

Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.

Translated by Paul Cooper