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Attorney: former Chinese leader enjoy no immunity for acts of torture, genocide
Lawsuit already a deterrent for would-be torturers, but granting immunity would send impunity message and encourage further atrocities, says China advisor
FDI
6/13/2004

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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.



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