In 1949, Chiang Kai-shek's Nationalist (KMT)[1] regime fled to Taiwan after being expelled from China by the Communist Party. On 20 May 1949, the Taiwan Military Garrison Command declared martial law on Taiwan. Although the imposition of martial law was justified on the basis of the civil war with the Communists and intended to be temporary, Taiwan remained under martial law for 38 years until 1987.

The period of martial law has also been referred to as the "White Terror" period, reflecting the brutal suppression of Taiwanese communists during the early decades and of Taiwan independence and democracy activists during the later decades. The Taiwanese communist movement can be traced back to the period of Japanese colonialism of Taiwan from 1895 - 1945. It has been estimated that 5,000 - 8,000 individuals were executed during the first five years of martial law in Taiwan.[2]

TAHR's critique of the Martial Law Period Compensation Law falls into the following four categories: 1) the nature of compensation; 2) the restrictions on the scope of compensation; 3) the lack of legal and procedural standards in evaluating convictions; and 4) the composition of the Review Panel.

TAHR notes that the language used in the Martial Law Period Compensation Law is problematic because the word used for compensation, 補償, does not carry the connotation of reparation for a wrongful act, as is suggested in the word 賠償 (restitution). This language is consistent with the intent of the government to avoid any admission of wrong-doing for past human rights abuses.[3] Moreover, the purpose of 賠償 (restitution) is to return the victim to his original condition prior to the violation, whereas 補償(compensation) reflects a nominal sum. Accordingly, the compensation that is awarded does not correspond to the actual injury that the victim has suffered.

The law awards NT$100,000 for each unit of injury determined by the Foundation, with a maximum of 60 units (or NT$ 6,000,000).[4] TAHR believes that in determining the compensation, the Foundation should be guided foremost by the principle of proportionality, rather than by a strict adherence to the maximum that has been established; such proportionality should be determined by the extent of injuries suffered by the individual. While acknowledging the practical considerations behind establishing a maximum of 60 units, TAHR also notes some potential arbitrary and unjust consequences. If the actual loss suffered exceeds NT$6,000,000, then an individual would be unable to obtain further compensation.

Furthermore, the compensation scheme provided in the Martial Law Period Compensation Law falls short of the standards for compensation that have been recognized in international law. According to Article 19 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the U.N. General Assembly in 1985, the state should provide "restitution and/or compensation and necessary material, medical, psychological and social assistance and support."[5] More recently, it has been recognized in the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law that "[r]eparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition."[6] The full text of the Basic Principles is attached in the appendix to this report.

a. Extrajudicial punishments will not be compensated.

Article 2 provides that individuals who were "improperly" sentenced may apply for compensation. However, people who were subjected to extra-judicial punishment, such as execution or detention without trial, and did not receive an actual sentence, would be unable to apply for compensation. Although, the majority of extra-judicial executions occurred during 1947 (particularly during the February 28 Massacre during which 20 - 30,000 people were killed), academics and victims' associations acknowledge that such executions also continued during the early years of martial law. TAHR recommends that the government take additional measures to provide full reparations to individuals who were subjected to extrajudicial punishment.

Article 6 provides that individuals who were sentenced to four types of punishment – 1) execution, 2) imprisonment, 3) reformatory education, or 4) seizure of property -- may apply for compensation. However, during the martial law period it was also common for an individual suffer incidental injuries. For example, individuals were also frequently subjected to torture during the periods of detention prior to trial or while serving their terms of imprisonment and reformatory education. In interviews with TAHR, former inmates held on Green Island characterized the prison as a "concentration camp." Upon their release from prison, individuals often reported difficulties in obtaining employment due to the stigma of political subversion. Although the law does not recognize a separate category of torture and other injuries, TAHR urges the Foundation consider the full extent of injuries suffered by the victim and his family when determining the amount of compensation. The Foundation should consider factors including, but not limited to, physical, mental, and emotional suffering; the number of dependents affected; and lost opportunities such as loss of educational opportunities or loss of earning potential.

According to Article 8(1), individuals who have received compensation under the February 28 Compensation Law[7] are ineligible to apply for compensation under the Martial Law Period Compensation Law. An individual should not be able to apply for compensation for the same injuries under both laws. However, it is possible that the same individual may have been suffered different kinds of injuries during the February 28 Massacre and then subsequently, during the Martial Law Period. In such a case, Article 8 should be interpreted as permitting compensation claims from individuals who have already received funds from the February 28 Compensation Law, so long as the injuries for which they are claiming compensation are different from the ones for which they have already been compensated.

Article 8(2) provides that if there is "substantial evidence" that an individual committed espionage or an offense against state security, then he will be ineligible to apply for compensation. In order to determine whether a conviction is supported by substantial evidence, a Review Panel will examine the facts and evidence in the case. The Review Panel will consist of academic experts, eminent public figures and government representatives who have been recommended by the Foundation and approved by the Executive Yuan. The determinations of the Review Panel may be altered or annulled by the Foundation upon approval by two-thirds of the Board of the Foundation, provided that more than half of the Board members are present.

Article 8(2) creates a significant loophole which may be used to deny compensation to victims of the martial law era. TAHR is concerned about two aspects of the process by which the Review Panel evaluates convictions. First, the Martial Law Period Compensation Law does not contain any standards to guide the decision-making of the Review Panel. Second, there are no procedural guarantees to protect the rights of the applicant or to ensure that the Review Panel and the Foundation will conduct its work in accordance with the principles of fairness and transparency.

It is unclear what standards the Review Panel will apply to determine whether there is "substantial evidence" supporting a conviction of guilt. TAHR observes that there are two basic problems with the way guilty convictions were reached during the martial law period. First, the Suppression of Sedition Act was broadly defined, and left the military courts with too much discretion. Notably, Article 5 of the Suppression of Sedition Act which prohibited "participation in seditious organizations or associations" was used to execute or imprison individuals who read particular books, participated in study groups, or joined the Communist Party. However, the freedoms of thought, association, and expression are protected in both the Constitution of the Republic of China[8] and in international human rights instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).[9]

TAHR recommends for crimes which may have been interpreted so broadly as to violate fundamental rights recognized under the ROC Constitution or international law, the Foundation should apply a narrow definition of such crimes. Accordingly, even in cases where there is substantial evidence that an individual participated in a study group or committed other acts in exercising his fundamental rights, the individual should still be able to receive compensation.

Second, TAHR is concerned by reports that many convictions were based on confessions or testimony obtained as a result of torture. It is also apparent that the Suppression of Sedition Act contained strong incentives to fabricate testimony in order to escape the death penalty and long prison sentences.[10] Article 8 of the Martial Law Period Compensation Law places the burden of proof on the government to provide "substantial evidence" supporting the conviction. TAHR believes that it is appropriate for the government to bear the burden of proof, since most of the relevant evidence will be found in files within the possession of the government. Given the frequent use of torture, coercion, bribery, fraud, and illegal detention to extract confessions and testimony, TAHR believes that such evidence cannot, by themselves, constitute "substantial evidence." The government can only meet its burden of proof if it is able to either 1) establish that the confessions or testimony were not obtained through torture, coercion, bribery, fraud, or illegal detention; or 2) present other collaborating evidence. TAHR recommends that the Foundation adopt Rules of Evidence to guide the proceedings of the Review Panel and the Foundation, and that such rules should reflect the principles discussed above.

TAHR is concerned that the Martial Law Period Compensation Law fails to adequately safeguard the procedural rights of the applicant. In discussing the proceedings before the Review Panel and the Foundation, Articles 8 and 9 fail to mention what role, if any, the applicant will play. At most, Article 9 provides that the Foundation may, "when necessary, invite relevant persons to appear and give explanations." TAHR recommends that the Foundation should adopt Rules of Procedure to govern proceedings before the Review Panel and the Foundation. Such procedural rules should include: 1) the right of the applicant to present his case either in person or with the assistance of a representative, and 2) the right of the applicant to examine and challenge evidence that has been introduced against him.

The proceedings of the Review Panel and the Foundation must operate according to the principles of fairness and transparency. As discussed below, the government has a responsibility not only to the victims, but also to the general public, to provide a full and accurate of the abuses committed during the martial law period. Thus, the proceedings of the Review Panel and the Foundation should be open to the public. The Review Panel and the Foundation should also keep a record of their investigations and such records should be made available to the public. Finally, the Review Panel and the Foundation must articulate the reasons on which their decisions were based. This requirement is particularly important since Article 3 provides that the applicant may appeal the Foundation's decision by either filing an administrative petition or a claim in the administrative court. A record of the evidence considered by the Foundation and the reasoning it used in reaching its decision would assist in the evaluation of the administrative appeal. TAHR recommends that the Foundation include these considerations in its Rules of Procedure.

With regard to the composition of the Review Panel, TAHR observes that unlike the provision on the composition of the Foundation, Article 8 does not mention the need for judges or other legal professionals. Since the Review Panel will be responsible for reviewing the evidence on which convictions were based, it will be particularly important that panel members have an understanding of the relevant laws - including constitutional and international human rights law – as well as evidentiary rules. The need for legal expertise should be an important criteria in the appointment of the Review Panel.

Since 1988, in the case of Velasquez-Rodriguez decided by the Inter-American Court of Human Rights, international law has recognized that a government's obligation to respect and ensure human rights means a four-fold duty to 1) prevent, 2) investigate, 3) prosecute, and 4) compensate human rights violations. Emerging international law also recognizes the victim's "right to truth" or "right to know." International legal experts recognize that these obligations are separate and distinct, that is, a "high measure of compliance in one area does not excuse noncompliance in another."[11]

Both the Universal Declaration of Human Rights and the ICCPR provide that an individual whose rights have been violated has the right to an "effective remedy."[12] According to the U.N. Human Rights Committee, the body mandated to interpret the ICCPR, "Complaints about ill treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible and the alleged victims must themselves have effective remedies at their disposal." The duty to investigate and prosecute human rights abuses, noted in the Velasquez-Rodriguez decision, has been re-affirmed by subsequent decisions of the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Committee.

The practice of the United Nations and national courts has further affirmed that individuals who commit violations of human rights must be brought to justice. The United Nations established the International Criminal Tribunals for the former Yugoslavia and Rwanda in 1993 and 1994, respectively. This year, the Statute for the International Criminal Court was adopted. Furthermore, it has been recognized in the 1968 U.N. Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity that certain crimes are of such gravity that they can be prosecuted no matter when they were committed. Accordingly, countries such as France, Hungary, and Poland have undertaken prosecutions of individuals for crimes committed during the 1940's and 1950's.

TAHR recommends that the government undertake a full investigation of the abuses committed during the martial law period, and, where appropriate, bring individuals responsible for such abuses to justice.

Article 9(4) of the 1990 Convention on the Rights of the Child provides that when a state is responsible for the separation of family members, it "shall, upon request, provide . . . the essential information concerning the whereabouts of the absent member(s) of the family." More recently, during the Meeting of Experts on Rights Not Subject to Derogation During State of Emergency, convened by the United Nations in 1995, it was recognized that the "right to truth" had achieved the status of a "rule of customary international law."[13]

Evidence that states recognize there is a "right to truth" is also clear from the fact that many states have established truth commissions; the most recent example is South Africa's Truth and Reconciliation Commission.[14] Such commissions are important in order to preserve an accurate record of past abuses and to promote official acknowledgment of wrong-doing.

1. Should compensate individuals according to full extent of injuries suffered.
2. Should accept compensation claims from individuals who have already received funds from the February 28 Compensation Law, so long as the injuries for which they are claiming compensation are different from the ones for which they have already been compensated.
3. Should compensate individuals even when there exists substantial evidence that they committed particular acts, if such acts merely constituted an exercise of their fundamental rights.
4. Should adopt Rules of Evidence which clarify that

1. Should implement the measures outlined in the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law.
2. Should take additional measures to provide full reparations to individuals who are not covered by the Martial Law Period Compensation Law, namely, individuals who were wrongfully convicted for crimes not involving state security or espionage, and individuals who were subjected to extrajudicial punishment.
3. Should undertake a full investigation of the abuses committed during the martial law period, and where appropriate, bring individuals responsible for such abuses to justice.
4. Should permit public access to files from the martial law era and explore the possibility of setting up a truth commission so as to establish a fair and accurate record of the human rights abuses committed during this period.
5. Should amend the Martial Law Period Compensation Law, where necessary, to facilitate the implementation of the above recommendations.

BASIC PRINCIPLES AND GUIDELINES ON THE RIGHT TO REPARATION FOR VICTIMS OF [GROSS] VIOLATIONS OF HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW