Attorneys Terri Marsh and Anthony D'Amato, the
two lawyers representing Falun Gong practitioners, filed a legal argument on
the case against Jiang Zemin to the Seventh Circuit Appellate Court. The court
will arrange an oral argument and the judge will make a decision later on.
No one should be above the law
This legal argument filed on March 19, 2004, is the response to the defense's
response to the brief that Terri Marsh filed on Jan 20 to the Seventh Circuit
Appellate Court. The plaintiff's lawyers pointed out in this document that
the defendant Jiang is not entitled to immunity for his personal instigation
and direction of torture and genocide. The U.S. Administration cannot immunize
foreign officials from civil accountability for their personal, nongovernmental
acts that violate international law.
The document further cited examples regarding the issue of immunity for foreign
heads of state. The Supreme Court addressed the question of immunity for foreign
heads of state in the case of the Santissima Trinidad. The court held that although
a public vessel of a foreign sovereign was ordinarily entitled to immunity from
libel proceedings in American courts, immunity could not be invoked if the vessel
had engaged in acts that violated international law.
The plaintiffs' attorneys stated in the argument that the complaint, taken
as true for the purpose of this appeal, alleges that Jiang Zemin has designed,
ordered, implemented and directed a program of eliminating the practice of Falun
Gong in China. Defendant Jiang's actions resulted in the selective murder,
disappearance, widespread torture and genocide against thousands of practitioners
of Falun Gong.
These allegations depict a person who has an expectation to stand above the
law. The Supreme Court in Clinton V. Jones (1997) case observed that even President
Clinton did not contend that President is “above the law”. Why should the president
of China be above the law–
Immunity does not equal impunity
In an early case affirming the extradition of Marcos Perez Jimenez to Venezuela,
its former head of state, the Fifth Circuit held that his acts were done in
violation of his position and not in pursuance of it. They are as far from being
an act of state as rape, which the appellant concedes would not be an “Act of
State.”
For the foregoing reasons, plaintiffs respectfully request reversal of the
district court's dismissal of claims against defendant Jiang Zemin and
defendant Office 610, and in addition request remand to the district court,
allowing the plaintiffs to amend their complaint and allowing defendants a reasonable
time to answer or otherwise plead to the complaint.
Support from legal experts in the U.S. in the process of preparing filing
documents
Attorney Terri Marsh said that she received a great deal of support from the
legal community in the U.S. during the process of preparing the document. She
said, “They are high quality attorneys who published books in this area, published
on the issue on immunity, wrote articles of Jus Cogens, wrote textbooks. These
people whose article I was reading while I was a law student, now helping me
to file the lawsuit. It is really very encouraging to see how important it is
for them to be part of the process to bring Jiang Zemin to justice, how generous
they are with their time. Very few of them were paid at all, they simply volunteered
their time to help with this effort. ”
The legal argument is based on the universal norm
According to reports, Jiang's regime has been continuously contacting
the U.S. government through diplomatic channels and pushing the U.S. government
to dismiss this lawsuit with economic and other interests. Marsh said that the
interference of the Chinese government in the U.S.' separation of powers,
with the rule of law and independent judiciary of the norm, is unacceptable.
Terri Marsh said, “The argument that we made, which is very strong and very
grounded in treaty law, international customary law and U.S. case law, is that
there are certain acts that are considered to be beyond, considered to be transcendent,
considered to be universal, they are not contingent on the foreign policy of
a country, they are not contingent on the political exigency of the moment;
they are not contingent on the need and the desire of a political administration,
these are the norms which themselves form the foundation of a civilization and
public order. ”
Terri Marsh points out, “When somebody violates these norms, whether he is
a current or former head of state, he has to be held accountable. Everyone has
the right to be free from unwarranted searches and seizures, the right to be
free from that kind of the persecution that is going on in China. Those inalienable
rights are universal, they are beyond and transcend national boundaries.”
Terri Marsh said, ” We have signed two international instruments, the torture
convention and the genocide convention, both of which say that if somebody commits
torture or genocide, he will be responsible regardless of his status. The U.S.,
a signatory of those treaties, has a responsibility to go forward with this
case. ”
The first immigrants of the United States came here to escape religious persecution
and predicated their very first settlements on the principle of religious freedom.
Moreover, the legitimacy of the American Revolution rested not on the consent
of England or on the consent of any man, but rather on the inalienable rights
upon which all moral behavior is based. The writings of Thomas Jefferson, John
Adams, Madison, and Benjamin Franklin are replete with mention of the universal
norms that operate as the laws and principles of all civilized states. These
rights enshrined in the Declaration of Independence and in the Bill of Rights
of the United States Constitution are not contingent, but universal. They are
the norms of conduct that form the very bases and foundation of our legal, moral
and civil order.
The Persecution Initiated by Jiang Zemin Is Unlawful Even in China
A Falun Gong practitioner in Illinois, electrical engineer Mr. Yang, said,
“This lawsuit is based on the moral principles which constitute the very foundation
of all civilization, morality and public order. They include the right to be
free from slavery, from torture, from genocide, from arbitrary arrest and detention.
On this stage of the human world, every one of us is both spectator and actor.
Between justice and evil, between courage and fear, everyone is positioning
himself.”
When asked about the effect this lawsuit may have on China and Chinese people,
Terri Marsh said, “This lawsuit is not against the Chinese people. In fact,
I think this lawsuit is really good for the Chinese people because it exposes
the truth about the persecution against Falun Gong in China, and it exposes
the lies perpetrated by some of the members of the Communist Party in China
under the guidance the Jiang regime, which is the former President Jiang and
a small group of people working with him, to cause havoc against Falun Gong,
a very pure and righteous spiritual belief. ”
She also pointed out that this persecution violates so many rights provided
in the Chinese Constitution, and the existence of the 610 Office is a total
violation of so many laws and policies that she couldn't even begin to
go through all of them.
Dr. Liu, a Falun Gong practitioner who is an assistant professor in a university
in Washington DC, said that the persecution against Falun Gong started by Jiang
Zemin has been going on for more than 4 years. He said, “The Clearwisdom website
has verified that more than 914 practitioners have been tortured to death in
over 30 provinces, autonomous regions and municipalities as of March 2004. However,
according to the Chinese government's internal statistics, the actual number
of practitioners who died after being arrested had reached 1,600 by the end
of 2001. In addition, there are at least 6,000 Falun Gong practitioners who
have been illegally sentenced to prison. Over 100,000 practitioners have been
sentenced to forced labor camps. Thousands of practitioners have been forcibly
sent to psychiatric hospitals to be tortured with injections that are damaging
to the central nervous system. Large groups of Falun Gong practitioners have
been forcibly sent to local brainwashing classes, where they have been subjected
to both physical and mental torture. Many more practitioners have been severely
beaten and had large sums of money extorted from them by so-called “law-enforcement
officials.” When large numbers of Falun Gong practitioners are beaten to death,
injured, and their families are broken up, when they have to leave home and
go from place to place because of the persecution, millions of Falun Gong practitioners'
families, relatives, good friends and colleagues are also implicated and brainwashed
to varying degrees. ”
More and more people from the international and legal community learn about
the persecution from this lawsuit
About two month ago, the forum “Genocide in the New Era” hosted by “Friends
of Falun Gong” in Sweden and International Advocates for Justice, and an international
workshop on “Preventing Genocide: Threat and Responsibility” which drew representatives
from the governments of 58 countries around the world, were held at the same
time in Stockholm, Sweden. As a lawyer who attended this conference, Terri Marsh
said, “It was amazing because these are the best of the best, the lawyer who
sued Pinochet, the lawyer who sued Milosevic, these are the lawyers who really
have accomplished the kind of things that need to be accomplished. During that
meeting, we were all saying that never before have so many lawyers joined forces
to make sure that one man be brought to justice.”
From October 2002 on, Jiang Zemin and the “610 office” which was established
by him to carry out the persecution against Falun Gong, have been sued in Chicago,
Spain, Germany, Belgium, Taiwan, Korea, and other places.
The 60th Human Rights Commission of the United Nations is now being held in
Geneva. Falun Gong practitioners from around the world held a parade and other
peaceful appeal activities in Geneva last week, hoping that governments around
the world would come to know about the Jiang regime's persecution of Falun
Gong in China, and appealed to bring Jiang and his major accomplices, Luo Gan,
Liu Jing and Zhou Yongkan, to justice.
Dr. Liu said, “When more and more Chinese people and people in other countries,
including those in the legal community, find out about Falun Gong being persecuted
by Jiang's regime, more and more people will judge Jiang from the angle
of human conscience and morality. This process also indicates that the time
when Jiang will be brought to justice in this human world is getting closer,
day by day.
Timeline and brief update on filings in the U.S. lawsuit against Jiang
1. October 18, 2002: The case was filed before the United States District Court
for the Northern District of Illinois. (Plaintiffs A-F v. Jiang Zemin, Case
No. 02 C 7530)
2. October 22, 2002: The prosecution sent summons for the case. In the subsequent
several months, court summons was mailed via registered letter to Zhongnanhai
several times. Jiang Zemin's office received the legal documents several
times.
3. September 12, 2003: Based on a technicality, the United States District
Court for the Northern District of Illinois dismissed the lawsuit due to immunity
for Heads of State. (At the time, Jiang was no longer a Head of State.)
4. January 20, 2004: The plaintiffs file an appeal with the Seventh Circuit
Appellate Court.
5. March 5, 2004: Brief for the United States as Amicus Curiae Supporting Dismissal
of Case filed with the court.
6. March 19, 2004: Plaintiffs file their Brief in Reply to the Amicus Curiae
of the United States. The documents stressed that anyone, whether they are current
or former Heads of State, must abide by the rule of law and cannot be above
the law.
7. Both sides of completed gathering documents. An oral argument is to be held,
with the date to be decided by the Panel of Judges.
Posting date: 24/Mar/2004
Original article date: 23/Mar/2004
Category: Media Report
