Magistrate States Sovereign Immunity Not Applicable for Violations Exceeding Official Authority and Violations of International Laws
A U.S. Magistrate in San Francisco recently issued a decision against a former mayor of Beijing, setting a precedent that could pave the way for proceeding to trial in a separate, higher profile lawsuit charging former Chinese leader, Jiang Zemin, for genocide and crimes against humanity.
In the lawsuit before U.S. Magistrate Edward M. Chen in San Francisco, Beijing Communist Party Secretary and former Beijing Mayor, Mr. Qi Liu, was charged with overseeing the torture of practitioners of Falun Gong.
Judge Finds Persecution of Falun Gong in China Illegal
In a decision submitted to the Court in June, Judge Chen stated that the persecution of Falun Gong is in clear violation of both International Law and Chinese Law, and that Mr. Liu acted ultra vires – illegally and beyond the limits of his official authority. Therefore, in his Report and Recommendation, the Judge stated that Defendant Liu does not merit the protections afforded by the Foreign Sovereign Immunity Act.
In his decision, Judge Chen specifically noted that the Government of China had itself acknowledged that any human rights violations that may have occurred were in violation of Chinese Law.
Former Chinese Leader Could Face Genocide Charges without Immunity Protections
A similar lawsuit against Jiang Zemin was filed in U.S. District Court of the Northern District of Chicago last October, and is now before Judge Matthew F. Kennelly. In the next few weeks, Judge Kennelly is expected to rule as to whether the U.S. District Court has proper jurisdiction over Jiang in order to proceed with a trial.
“Judge Chen’s decision illustrates a principle of immunity directly relevant to the case against Jiang,” says Ms. Terri Marsh, the lead attorney in the lawsuit filed against Jiang in Chicago. “Sovereign immunity does not protect acts which are ultra vires – that is, acts which are in excess of official authority and without legal justification. Such actions are not protected by sovereign immunity and can be the basis for prosecution.”
Ms. Marsh continues, “Defendant Jiang is a former head-of-state charged with torture and genocide, both of which were rendered beyond the official authority of any state actor when China became a signatory to the Torture and Genocide Conventions. Indeed, the Convention against Genocide recognizes that not even sitting heads-of-state may use the office of the Presidency to commit genocide with impunity.”
Over the last four years, much information has been brought to light that demonstrates how Jiang Zemin, who was head-of-state in China when he launched the persecution of Falun Gong in 1999, not only formulated the policy of “eradicating” Falun Gong himself, but actually went against the decision of the entire Politburo Standing Committee – who were advocating for Falun Gong at the time – to enact the persecutory campaign against Falun Gong.
Lawsuits Consistent with Position of U.S. State Department
“Mere belief in [Falun Gong], without any outward manifestation of its tenets, has been sufficient grounds for practitioners to receive punishments ranging from loss of employment to imprisonment, and in many cases, to suffer torture and death”
– U.S. State Department
Annual Human Rights Report, 2003
Judge Chen also found that the U.S. State Department had publicly and specifically condemned China’s abuse of Falun Gong practitioners, and therefore, held that a declaratory judgment in favor of the Falun Gong plaintiffs would “be generally consistent with the prior public pronouncements of the State Department, thus creating minimal risk of disrupting foreign relations conducted by the Executive Branch.”
Likewise, says Ms. Marsh, holding Jiang liable for his alleged crimes would also not be inconsistent with public pronouncements by the U.S. State Department.
Since the persecution of Falun Gong began in 1999, the U.S. State Department has documented severe and systemic human rights abuses against Falun Gong practitioners in its annual Human Rights Report. Issued on March 31, the 2003 report mentioned Falun Gong more than 80 times, highlighting the severe persecution against the practice in virtually every section of the report, including “arbitrary” and “unlawful” killings, arrest and detention as well as denial of freedom of belief, speech, assembly and association.
The U.S. report highlighted the widespread practice of torturing Falun Gong practitioners in police custody, which often leads to severe injuries or death. “Several hundred Falun Gong adherents reportedly have died in detention due to torture, abuse,” the report said. The report later added, “…many of their bodies reportedly bore signs of severe beatings or torture or were cremated before relatives could examine them.”
The report also cited the regime’s continuing use of state-run media and the police in “an intense propaganda and police campaign against the Falun Gong.”
“Jiang has gone beyond both Chinese and International Law to ‘eradicate’ the peaceful spiritual practice of Falun Gong,” concludes Ms. Marsh. “Therefore, he may not shield himself with the protection of sovereign immunity.”
Posting date: 18/Aug/2003
Original article date: 18/Aug/2003
Category: World News
