A primer on transitional justice
From de-Nazification to lustration to reconciliation to Taiwanese politics
Happy Lunar New Year! It’s now the Year of the Dragon. What does this mean, practically speaking? In Taiwan, it means anyone who looks more or less fertile is being urged to make babies, since being born under the sign of the dragon is considered auspicious. Neither of us is a dragon, alas—we’re humble farm animals, a pig and a chicken—but we’ve been delighted to behold the uptick in dragon-related paraphernalia. Here’s are two cats in a dragon getup, complete with tail and scales:
In other news: you can read Albert’s piece about the elections in Commonweal. If you’re in Taipei, come see Michelle in conversation with Rex How (郝明義) on Wednesday, February 21, at 10:30 a.m. at the chaotic and wonderful Taipei Book Fair (details below). Her publisher Locus is issuing a new edition of the translation of her book Reading with Patrick (Chinese title: 陪你讀下去）.
Exploring transitional justice
A couple of weeks ago, Michelle gave a talk on transitional justice at Taiwan Next Gen, a thinktank dedicated to educational policy and public advocacy. She also participated in a panel with Jimmy Chia-Hsin Hsu, a research professor at the Institute of Law at Academia Sinica, and Liao Pinyan (廖品硯), who represented the Taiwan Youth Association for Transitional Justice. A wonderfully engaged and diverse audience of people from Spain, Poland, Australia, Germany, and (of course) Taiwan asked probing questions.
Over the past two decades, transitional justice has emerged as a hot-button issue in Taiwanese public discourse. In 2016, President Tsai Ing-wen established the Transitional Justice Commission to investigate crimes committed under the authoritarian rule of the Kuomintang (KMT), which imposed martial law for forty-two years and is now a political party. The Commission had an expansive mandate to declassify documents related to KMT rule, remove authoritarian symbols in Taiwan, and compensate victims.
Even more broadly, though, the quest for “transitional justice” has sparked a wide-ranging discussion about historical memory and the relationship between Taiwan’s current democracy and its authoritarian past. We’re by no means experts, but we think transitional justice is one the most fascinating and generative topics in the country’s public sphere today, and we plan to devote several issues of this newsletter to it. In the coming weeks, we’ll be sharing an in-depth conversation with a leading expert on the topic, Cheng-yi Huang, who also gave one of the most lucid and comprehensive interviews we’ve heard on the subject, and we can’t recommend it highly enough. We also recommend the seminal work of Wu Nai-teh, and more recent scholarship by Ian and Jamie Rowen, Hui-chieh Su, Jimmy Hsu, and Yi-li Lee.*
For today, we’ll recap Michelle’s talk and offer a primer on transitional justice in Taiwan.
To begin with, how have other countries approached transitional justice? History offers a number of models:
De-Nazification. Everyone is familiar with the Nuremberg trials, which convicted and executed high-ranking Nazis on war crimes charges and established a new regime of international criminal law. But what of lower-ranking Nazis, or collaborators in Nazi-occupied territories? People across Europe were convicted of a new charge, the inventively titled national indignity. In Austria, France, Belgium, Denmark, Norway, Hungary, and the Netherlands, former collaborators lost the right to vote and run for office. In France and Denmark, they couldn’t serve as lawyers, doctors, or academics. In countries including France and Norway, they couldn’t work in media. In the Netherlands, forty thousand people had their property confiscated. Belgium’s punishment was perhaps the most severe: those found guilty of collaboration were barred from serving in any organization, amounting to what’s called “civic death.”
Lustration. Philosopher and political theorist Jon Elster tells a story of attending a conference in 1990 in Pecs, Hungary, where Central and Eastern Europeans discussed how to build new institutions and constitutions after the fall of the Berlin Wall and the collapse of the Eastern Bloc. What should be done with secret police and collaborators? Should they be punished or allowed to continue to live quietly?
Some insisted, unsuccessfully, on “the Spanish solution,” namely amnesty. In 1978, Spain granted amnesty to all perpetrators under the Franco regime, as well as to those who had been politically exiled for opposing it. Elster put their argument this way: the “injustice inherent in amnesty was the price one had to pay for democracy.” The Franco regime was brutally violent; besides Cambodia, it disappeared more people than any other in the world, with 114,000 bodies unaccounted for.
The Central and Eastern Europeans rejected amnesty and opted for lustration, a word whose Latin root means “purification.” The first lustration law was enacted in Czechoslovakia in 1991, then in Lithuania later that year, followed by Bulgaria (1992), Hungary (1994), Albania (1995), and Poland (1997). Lustration laws barred informants and former Communist secret police from public office. The Czech freedom fighter Vaclav Havel, who went on to become president, justified the need for lustration this way:
We had free elections, we elected a free parliament, we have a free press, we have a democratic government. Yet […] there still exist and work the powerful structures of the former regime […] Many places are governed by the same people as before […] The old bureaucracy persists at all levels.
The Spanish solution continued to spark public opposition. After much agitation, Spain passed a “historical memory law” in 2007 and a “democratic memory law” in 2022, both of which sought to bring justice to victims of the Franco regime and included measures creating a national DNA bank to help locate and identify remains. Many of the arguments against these laws are similar to those found in Taiwan: that they’re motivated by vengeance, that they seek to delegitimize governments, that they seek to divide rather than unify.
Truth and reconciliation commissions. These aim to recover truth, not to impose punishment, by encouraging people to come forward and openly confess what they’ve done; in exchange, they’re granted amnesty. In South Africa, this meant that those who committed violence during apartheid got off scot-free; on the other hand, the violence of ANC freedom fighters against informers also went unpunished. Disagreement persists about whether this process “works,” but there’s undoubtedly something poignant about it. Over two thousand South Africans testified to the violence they experienced or perpetrated in a process broadcast every Sunday evening, so all South Africans could listen together—a real-time, transparent production of oral testimony that created a shared public narrative of the apartheid regime’s impact on ordinary lives.
There are local models, too, of truth and reconciliation. In Maine, tribal representatives and state representatives set up a truth and reconciliation commission to seek the truth about the harm done to Native American children. Citizens in Greensboro, North Carolina set up a truth and reconciliation commission to investigate the KKK’s murder of five peaceful protesters in 1979.
*
So which models were used in Taiwan, where martial law was imposed for over forty-two years? It’s remarkable to consider:
De-Nazification (purges, trials, civic death): nope.
Lustration (stripping the right to serve in government positions for former informants, secret police, or other members embedded in the power structures of the authoritarian regime): nope.
Truth and reconciliation commissions**: nope.
What accounts for the absence of these methods? Taiwan is the rare case where the former authoritarian regime now operates as a political party—the KMT didn’t even bother changing its name. (This often blows the mind of friends from Central and Eastern Europe who come to visit.)
For one thing, Taiwan’s situation is a peculiar one. Unlike Central and Eastern Europe, it’s been considered part of the “free world” since World War II, as it wasn’t aligned with the Soviet bloc. America gave the KMT a great deal of cover even though it curtailed civil liberties and killed dissidents without trial. Taiwan appeared free to the world even though it wasn’t. Pro-democracy activists never “toppled” the authoritarian regime, as they did in Central and Eastern Europe—though they did succeed in forcing the regime to coexist with them.
Since the time transitional justice emerged as a term in the early 2000s, the KMT has insisted that it has changed, engaging in measures such as monetary compensation of victims and historical memory projects. But it also claims that transitional justice is a partisan project rather than a national one. You could say that perpetrators have given a version of “amnesty,” but that word implies that a crime occurred and that the state forgave it. Among the KMT’s most offensive rhetorical moves is calling Tsai Ing-wen’s presidency a reign of “Green Terror”—a play on White Terror, the term used to describe the killing and disappearing of people under martial law.
Two recent scandals effectively convey the complexity, especially the shallowness of the public dialogue. Both ended publicly in a typically Taiwanese way: the subjects bowed in apology and utterly disappeared from the public eye.
The first scandal started two and a half years ago with the bombshell news that a respected DPP legislator had served as a KMT informant, snitching on dissidents under martial law. (We wrote about this in a previous newsletter, and we still think it’s one of our best pieces.) The legislator resigned and nobody’s heard from him since.
This was a loss for everyone: by all accounts, he had done an excellent job, was broadly respected, and was on his way to becoming mayor of Taichung. His life story illustrates how people who “collaborated” with an authoritarian regime can rehabilitate themselves in public life and do much good, but few made that argument publicly. A restorative dialogue would have been an opportunity to ask questions, share notes about how a surveillance regimes work, and better understand the harms they’ve done—the goal being to learn how evil is produced by systems, rather than to individualize it. But there’s little practice of restorative dialogue in Taiwan, and a lot of shame. As we wrote in our last article, even hardcore former IRA members are willing to participate in restorative justice work with British soldiers—but the one group they refuse to engage with is Irish informers.
The second scandal: as soon as President Tsai created the Transitional Justice Commission in 2016, a member leaked a tape from an early meeting that ruined the Commission’s credibility and forced four of five members to resign. On the tape, deputy member Chang Tien-chin said that a lustration law could be used against New Taipei City mayoral candidate Hou You-ih, whom he called “despicable.” Hou had been the head of the police when they prosecuted and surrounded the home of dissident Taiwanese publisher Nylon Cheng, who self-immolated and became a martyr for the pro-democracy movement. The leak was catnip for the KMT; Hou went on to win his election, and became the KMT’s presidential candidate last month.
Here’s the bizarre thing about the whole affair: had a lustration law been imposed when the country lifted martial law, this former head of the police force wouldn’t have been able to run for local office in 2016. Had there been a public investigation into Cheng’s self-immolation in the 1990s or 2000s, it wouldn’t have seemed particularly vengeful to question how Hou could continue to occupy public office. Had there been a truth and reconciliation commission, perhaps Hou would have already had the chance to defend his choices and rehabilitate his public image.
What’s unique about Taiwan’s case? For one thing, Taiwan doesn’t have the conditions that Europeans did when they de-Nazified or broke free of the Soviets. Even the phrase national indignity says a lot about how such approaches were justified: they appeal to the idea of nationhood, to generic patriotism, to nativist solidarity. Taiwan can’t do that; doing so would upset those factions of the country that still thinks of it as Chinese—or at least provoke China next door.
There are two related consequences. First, Taiwan suffers from a fragmented public memory. Every country suffers from this, but the question of whether the Chinese are “foreign” is a particularly thorny one. Second, processes that ought to be considered—and embraced—as part of transitional justice aren’t. The “Taiwanization” of education—in which textbooks and universities move to decenter China—certainly counts as non-penal transitional justice, revising the narratives told under authoritarian regimes. But few people think of it that way. Taiwanization is divisive, as is transitional justice, so characterizing the former as the latter only makes the project of transition seem even more nationalistic.
To be clear, we’re on the fence about the extent to which de-Nazification and lustration are ultimately beneficial to society. In general, we’re proponents of restorative practices that seek to fold people back into their communities. As Elster writes, “Children of collaborators, too, suffered in numerous ways. In one case known to me, a mother told her two daughters that it was unpatriotic to play with the children of a convicted Nazi collaborator.” We think stigmas generate social divisions rather than healing.
Still, that there’s been scarcely any public debate about implementing transitional justice mechanisms is striking. Had penal approaches been considered, perhaps more people would recognize that educational reform is comparatively more peaceful and reparative. This is certainly the case in Chicago, where police officers brutally tortured young Black defendants from 1972 to 1991; activists opted against prosecuting them, instead passing a reparations ordinance that implemented city-wide curriculum discussing the torture and gave free college tuition for all family members of the victims.
What has Taiwan accomplished in transitional justice? The government has declassified archives, compensated victims, and created historical memory museums. It’s apologized to indigenous people, though its efforts on that front have been mostly symbolic. It’s made 2/28, the date of a notorious massacre of tens of thousands, a national holiday. And it’s allowed a culture of historical commemoration to take root.
At Michelle’s recent panel, the twenty-four-year-old Liao Pinyan introduced his NGO, Kiōng-Seng, which runs a yearly music festival to commemorate the victims of the 2/28 massacre and the White Terror. Liao spoke about how much more there is to be done. He recalled meeting one of his political heroes, Tsai Kun-lin (蔡焜霖), who had been arrested at age twenty for attending a leftist reading group and sentenced to ten years in jail. When he interviewed Tsai, who was ninety at the time (he died last year at ninety-three), Liao said, his eyes burned bright. Many perpetrators of the KMT regime’s cruelty are still unknown, hidden to history. What had motivated them to torture, to execute, to punish with impunity? Even in his nineties, it was still a mystery to Tsai, and he wanted answers. We should want them, too.
* Thanks to Cheng-yi Huang and Vivianne Weng for their guidance on this piece.
** In Taiwan, transitional justice involves a legal process by which political prisoners can apply for compensation and are formally cleared of their convictions. As Cheng-yi Huang has explained, this is the opposite of South Africa’s amnesty approach, which above all seeks truth. In Taiwan’s case, those who participated in Communist activities don’t come forward because, in addition to being ineligible for compensation, they also fear bringing shame to their families.
Taipei Book Fair Event
Michelle will be in conversation with Rex How, publisher of Locus Books, at the Taipei Book Fair on Wednesday, February 21, at 10:30 a.m. The setting—blue salon, map below—will be a little chaotic and not very intimate, but the book fair itself is so crazy-fun that it’s well worth the trip.
Links
Congrats to our editor and friend Daniel Levin Becker, who translated Éric Chevillard’s Museum Visits, and Daniel Medin, the book’s editor. A delightfully hilarious excerpt about Hegel’s cap is over at Book Post. We have too many favorite sentences to share, but here’s one (two):
I donʼt regret having seen this cap. Itʼs heavy and wide, soft and sagging, but all the same this is the cap that covered the egg that was Hegelʼs head, that brooded it for as long as the ideas took to germinate and then hatch, until all eight hundred pages of the Phenomenology of Spirit were written in their entirety.
Check out also a conversation about Chevillard with Michelle, Daniel, and Jeremy Davies at Los Angeles Review of Books. The book will be published March 26th.
If you’re in East Asia, watch Hsin-yin Sung’s wonderful “Lost in Perfection” on Netflix; for those who missed our review, it’s here.
Read James Lin on the elections; Bonny Ling on migrant workers, who pay nearly $2,000 USD in broker fees in their first three years of work; and Marcin Jerzewski on human rights and Taiwan-EU relations.
Book Club
We're looking forward to talking about Yaa Gyasi’s HOMEGOING on Friday, February 23rd 6 PM EST / Saturday, February 24th 7 AM (Taiwan time). For March 29th-30th, we'll read the "first" Korean-American novel, Younghill Kang's EAST GOES WEST. For April, we'll read Abraham Verghese's THE COVENANT OF WATER. All are welcome!
A quick correction: Huang Kuo-shu, the DPP legislator who was revealed to be an informant, did not resign his position. He did resign his DPP membership but continued to serve as an independent up until two weeks ago when his term ran out. The fact that discussion over the revelation lasted barely a week or two, and was never brought up again, really shows how much the issue of transitional justice has faded from public attention these past few years.
It sounds like Taiwan essentially adopted the Spanish model! And for similar reasons. In Spain too the left essentially never had the juice, until recently, to pick fights with the right over issues of historical memory. It simply wasn't worth expending political capital over. Transitional justice seems reserved for situations where there are clear victors. It's interesting you didn't mention a fourth model--the US's after the Civil War or England's after the Boer War--where the victors won outright and yet made peace with the losers and effectively allowed them to take over the government within a few generations.