Lawsuit Already a Deterrent for Would-be Torturers, but Granting Immunity Would Send Impunity Message and Encourage Further Atrocities, Says China Advisor
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CHICAGO
(FDI) – Before a packed courthouse in downtown Chicago, oral arguments were presented
yesterday to the 7th Circuit Court of Appeals in the class-action lawsuit against
former Chinese leader Jiang Zemin. (website)
Jiang
is charged with torture, genocide and crimes against humanity in the persecution
of Falun Gong practitioners in China, which has left thousands dead and hundreds
of thousands abused or tortured in China’s 300-plus forced labor camps.
According
to the Chinese government, approximately 8% of the entire Chinese population was
practicing Falun Gong by 1999, when Jiang ordered the practice “eradicated.”
(special
report)
Case Law, U.S. President’s Statements Cited
Attorney
for the plaintiffs, Dr. Terri Marsh, noted in her opening arguments that former
heads-of-state do not enjoy immunity before U.S. Courts for unofficial acts committed
during their tenure of office. “Immunity is not impunity,” Dr. Marsh stated,
adding that U.S. case law specifically distinguishes between official and unofficial
acts with regards to immunity.
Among the cases cited by Dr.
Marsh was Hilao v Marcos (25 F. 3d 1477), in which the 9th Circuit Court
of Appeals held that alleged acts of torture, execution and disappearances “of
a dictator are not ‘official acts’ unreviewable by federal courts.”
Dr.
Marsh also cited U.S. v Noriega (746 F. Supp. 1506, 1522) where the district
court said, “The inquiry is not whether Noriega used his official position to
engage in the challenged acts, but whether those acts were taken on behalf of
Noriega instead of Panama.”
Dr. Marsh then noted the wealth
of evidence indicating Jiang launched the persecution against Falun Gong for personal
gain, quoting an article by CNN’s Senior China Analyst Willy Lam that said, “Jiang
has mobilized a Mao-era mass movement against…” Falun Gong and “…the most
severe criticism leveled at Jiang’s handling of the Falun Gong is that he seems
to be using the mass movement to promote allegiance to himself.”
Acting
as a friend of the court, Department of Justice attorney Douglas N. Letter began
his arguments by emphasizing the United States’ condemnation of the persecution
of Falun Gong. “The United States Government at its very highest levels — we’re
talking about the President and the Secretary of State — have severely criticized
the Chinese government publicly about its persecution of the Falun Gong,” Letter
said.
Letter, however, contended that allowing private lawsuits
to go forward against visiting heads-of-state would interfere with U.S. diplomacy
efforts as well as set a precedent for allowing private lawsuits to be served
against U.S. Presidents while traveling abroad.
In response,
during her closing remarks Dr. Marsh quoted former President Bush who, when signing
the Torture Victim Protection Act into law, addressed the arguments put forth
by Letter: “The dangers that U.S. Courts may become embroiled in difficult and
sensitive disputes in foreign countries is real, … But these potential dangers,
however, do not concern the fundamental goals that this legislation seeks to advance.
In this new era, in which countries throughout the world are turning to democratic
institutions and the rule of law, we must maintain and strengthen our commitment
to ensuring that human rights are respected everywhere.”
Ruling
Will Have Far-reaching, Immediate Consequences
Dr. Marsh
added that dismissal of this case not only places the entire framework of Nuremberg
and the system of international law the U.S. helped create at grave risk, but
sends a message which could be interpreted to signify that former and sitting
heads of state may commit torture and genocide with impunity.
Meeting
with members of the press after the hearing, Dr. Marsh together with China expert
and policy advisor, Mr. Erping Zhang, elaborated on the importance of the lawsuit
in directly stopping torture and killings in China.
“The
news that Jiang has been sued for genocide in the U.S. has been a real, tangible
deterrent for those carrying out Jiang’s orders and has already stopped numerous
tortures and abuses in China,” said Zhang. “If the U.S. court is to grant impunity
to Jiang, the message to Chinese police and forced-labor camp personnel is that
they also have impunity.”
Stephen Gregory, an administrator
with the University of Chicago and volunteer coordinator of Falun Gong activities
in the Chicago area, has been following the case closely and says immunity laws
are necessary, but they do not apply to Jiang given the nature of the acts in
question.
“Leaders of nations by virtue of their official
responsibilities and the powers granted to them by their country’s laws invariably
must engage in controversial actions. Immunity laws are therefore necessary to
protect such leaders while carrying out their official duties,” said Mr. Gregory.
“However, these same laws cannot be used to shield those who wantonly abuse their
power and position to engage in torture and genocide. Such acts do not come from
powers granted to them by the state. They are thus individual, unofficial acts,
and not protected by immunity laws.”
The 7th Circuit panel
of three judges has taken the case under advisement after hearing the arguments.
A
ruling on the case is expected within the next several months.
Posting date: 29/May/2004
Original article date: 29/May/2004
Category: World News
