When a country moves from a non-democratic to a democratic regime, past wrongdoings should be acknowledged and rectified. It is not easy.
by Massimo Introvigne*
*A paper presented at the webinar “Democracy, Transitional Justice, and the Tai Ji Men Case,” organized by CESNUR and Human Rights Without Frontiers on September 15, 2021.
An article already published in Bitter Winter on September 21st, 2021.
The title of this webinar refers to the International Day of Democracy, but also to transitional justice. The expression “transitional justice” was coined by scholars only after the fall of the Soviet Union and its satellite regimes, and of several Latin American dictators, in the late 1980s and early 1990s. However, with other names, the principle was affirmed after World War II and the prosecution in Nuremberg and Tokyo of the Nazi and Japanese leaders responsible for massive human rights violations and crimes against humanity.
The general idea of transitional justice is that, when a country moves from a non-democratic regime to a democratic one, peace, social stability, and real democracy cannot be achieved without confronting the evils of the past. When the expression “transitional justice” was coined, it was meant to include the four imperatives indicated in 1988 by the Inter-American Court of Human Rights in the case Velásquez Rodríguez v. Honduras. First, take reasonable steps to prevent further human rights violations. Second, conduct a serious investigation of past crimes. Third, punish those responsible of these crimes. Fourth, indemnify the victims.
In 2001 the International Center for Transitional Justice was founded in New York by South African white Methodist ordained elder Alex Boraine, who had been the main architect of the Truth and Reconciliation Commission in South Africa, and by other human rights activists. It has assisted several countries in devising transitional justice programs. The United Nations have also promoted transitional justice with a series of initiatives.
All these international bodies have emphasized that transitional justice is necessary, but is not easy. It may be perceived as vengeance, and create further instability. Or, it may be perceived as purely cosmetic and ineffective, infuriating the victims.
Italy and Taiwan offer two interesting examples of the problems of transitional justice. Unlike Germany and Japan, where transitional justice was administered by the foreign powers that defeated them in World War II in trials that led to the death penalty for some of those responsible of atrocities, Italy went through a full-blown civil war, where freedom fighters of different political persuasions confronted the Fascist regime. The winners in World War II decided that Fascist officers who had been responsible of human rights violations in Italy should be tried and punished by Italians, rather than by international courts.
What happened, however, was that the anti-Fascist partisans and the first governments they set up administered swift justice, often after mock trials that lasted only a few hours or less, and thousands were executed. Some of the Communist freedom fighters believed that the bourgeoisie and the Catholic priests in general were co-responsible for the Fascist crimes, and many were killed. While some transitional justice was administered, new atrocities and crimes were also committed.
The situation was somewhat solved by appointing in June 1945 Palmiro Togliatti, the General Secretary of the Italian Communist Party and at that time the closest international associate of Soviet leader Stalin, as Minister of Justice of the newly formed Italian democratic government. On June 22, 1946, Togliatti issued what became known as the Togliatti Amnesty, which pardoned and made non-prosecutable crimes committed by both Fascists and freedom fighters before July 31, 1945. Some especially atrocious crimes were excluded but even for them sanctions were reduced, and the death penalty was excluded. The Communist partisans were not happy to see the Fascists escape prosecution, but they could hardly challenge a statute coming from Togliatti, and the amnesty also benefited those of them who had committed crimes during the civil war.
Both those wronged by the Fascists and by the most rough and violent partisans believed that the Togliatti Amnesty made what would today be called transitional justice in Italy impossible or incomplete. Others applauded Togliatti’s wisdom in preventing a new civil war, and the controversy continues to this very day.
The Italian experience shows how difficult it is to reach an equilibrium between the need to achieve stability and reconciliation and the need to proclaim the truth, punish the perpetrators, and indemnify the victims.
Taiwan did not go through a civil war to achieve its transition to democracy, yet the number of crimes committed by the ruling party during the authoritarian and post-authoritarian periods, including those connected with the so-called White Terror, was so high that demand for transitional justice by Taiwanese citizens was and remains a key feature of the political scene.
It is easily forgotten that non-democratic regimes also commit crimes against freedom of religion or belief (FORB), and transitional justice is needed in this field too. Taiwan authoritarian regimes violated the religious liberty of various minorities, and such violations continued in the post-authoritarian phase, with the worst crackdown occurring in 1996 and involving several religious and spiritual groups, including Tai Ji Men. As a by-product of the 1996 crackdown, the tax persecution of Tai Ji Men continued even after the highest criminal courts in Taiwan had stated they had committed no crimes, and were not guilty of tax evasion either.
To complete Taiwan’s transition to democracy, transitional justice should be rendered with respect to these crimes against FORB too. The current President of Taiwan, Tsai Ing-Wen, promised a serious and effective approach to transitional justice since her first election in 2016. For the first time in Taiwan’s history, this became politically possible, as the party who had been in power in the authoritarian and post-authoritarian period, the Kuomintang, lost both the presidency and the majority in the Parliament. In fact, under President Tsai, several laws promoting transitional justice and instituting commissions investigating past wrongdoings were passed.
While this is a welcome development, a problem with these laws is that they deal with abuses committed until November 6, 1992, but not later. The politically motivated crackdown on several religious minorities in 1996 and the persecution of Tai Ji Men prove that serious human rights violations continued to occur also after 1992. Transitional justice, and a full transition to democracy, will only be achieved when post-1992 violations of human rights, including FORB, will also be investigated and rectified.