Swiss Lawyers Statement Regarding Suing Jiang
Should Those Responsible for the Repression of Falun Gong Be Persecuted?
Philip Grant, Lawyer, President of TRIAL*
Geneva, March 18, 2003
* TRIAL, (“track impunity always”), is a Swiss based Non-Government Organization dedicated to combat immunity.
What the victims of the Falun Gong repression endure does not constitute a purely internal question. China, just like any other State, must pay respect to the rules of international law it has ratified and to those regulations which are binding under international customary law.
It is particularly the case of international crimes such as torture, crimes against humanity and genocide.
Not only China, as a country, but also every individual who, by his own acts, infringe these rules, must endorse responsibility for violating international law obligations.
This criminal liability, in regard to the international nature of the obligations at stake, is not limited to being enforced by national courts. Any third State can, if its own legislation allows it, exercise its jurisdiction by initiating a criminal procedure, under certain conditions, against any international criminal.
The testimonies we heard today, along with the huge documentation coming from varied sources, all point without any doubt that instruments of persecution especially destined to fight and destroy Falun Gong were set up and used by Jiang Zemin in order to break a movement that was threatening the Chinese Communist Party and himself.
In his position as Secretary General of the Chinese Communist Party and as President of the People’s Republic of China, Mr. Jiang Zemin was the front architect of the ferocious repression that fell upon hundreds of thousand of people. Documents, reports and witness accounts prove this beyond any reasonable doubt.
The almost four years of repression that fell upon individuals peacefully practicing Falun Gong has directly claimed the lives of at least 610 people. This number represents only the identified persons deceased either after enduring torture or because of plain murder. The real number is probably much higher and could rise up to 1500 people.
More than 100,000 people, maybe hundreds of thousand, have been arrested and tens of thousand have been sent to work and rehabilitation camps. More than 1,000 individuals have been forced into mental hospitals, a practice denounced by the World Psychiatric Association. An innumerable number of people have been victims of force abortion, have lost their jobs, have been refused access to public services or were submitted to brainwashing and forced to renounce their belief in Falun Gong.
Jiang Zemin directly ordered, aided or otherwise assisted in the commission of such crimes, from April 1999 up to today. Jiang Zemin, on numerous occasions, has given orders and has publicly or secretly called for the destruction of Falun Gong. He was the one who set up the 610 Office, a sort of Chinese Gestapo created in June 1999. He again outlawed Falun Gong, and it was he who promoted devoted followers to head the 610 Office.
As regards international conventional and customary law, the long list of the above mentioned acts clearly constitute multiple breaches of the 1984 United Nations Convention Against Torture, which China has ratified in October 1988.
Furthermore, the repression of Falun Gong certainly amounts, in regard to its systematic character and its huge scale, to crimes against humanity. Murder, torture, rape, persecution against an identifiable group such as Falun Gong, base on religious grounds, as well as “other inhumane acts of a similar character internationally causing great suffering, or serious injury to body or to mental or physical health” were indeed committed. Having taken place as part of a widespread or systematic attack directed against a civilian population, that is in the words of Article 7 of the Rome Statute of the International Criminal Court “a course of conduct involving the multiple commission of acts referred to [above] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”, they amount to crimes against humanity. This definition corresponds to the state of international customary law and is binding upon China.
The policy of mass repression conducted by Jiang Zemin is clearly aimed, like the former President of the People’s Republic of China often claimed, at the destruction of Falun Gong as such. According to Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Pursuant to Article III of the Genocide Convention, shall not only be punishable genocide as such, but also the conspiracy to commit genocide, the direct and public incitement to commit genocide, the attempt to commit genocide and the complicity in genocide. The crime of genocide can thus probably be upheld against Jiang Zemin.
From a legal point of view, as was for example the case in the Pinochet case, the head of State immunity that Mr. Jiang Zemin enjoyed while he was President of the People’s Republic of China has lost all grounds since he was replaced in this position last Saturday. This is at least true as to the extent that torture is concerned. Like the British House of Lords spelled out in the famous Pinochet ruling, one’s official capacity does not protect him against prosecution for crimes of torture committed while in office. This applies especially to former heads of State – as was Augusto Pinochet-, whose international immunity vanishes once they step down. So also said the UN Committee Against Torture when it asked Great Britain to prosecute Pinochet should that country not extradite him? In case of genocide, Article IV of the Genocide Convention is also quite clear: “persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”. The fact that Mr. Jiang Zemin continues to chair the Chinese Communist Party Central Military Commission does not presently confer him any particular immunity under international law.
As a result, I was given the mandate by several victims of Chinese repression to prepare a criminal complaint against Jiang Zemin, which will be filed before the competent prosecuting authority here in Switzerland when – and if – Jiang Zemin will set foot once again on Swiss territory.
Apart from possible procedures in Switzerland, sixty Falun Gong national associations, in collaboration with TRIAL, are setting up an international coalition formed of reliable and devoted human rights lawyers to actively take up the defense of the numerous victims of Chinese repression, by spinning an ever tighter web around Mr. Jiang Zemin. In the weeks to come, criminal complaints will be prepared and/or filed in a certain number of countries that enjoy universal jurisdiction for crimes of torture, not to mention crimes against humanity or genocide. Mr. Jiang Zemin must know, as of today, that the victims of his blind and bloody repression will not let him alone untroubled. Considering that no statutes of limitation can bar the prosecution of such international crimes, Mr. Jiang Zemin must count of the fact that, to his last breath, he might be tracked down outside of China.
Finally, and this is important to underline, many docile or active participants in this gigantic machinery of repression must as of today know that their criminal acts not only violate Chinese laws, but also conventional and customary law. They are indeed breaking rules that the international community has set and has the duty to enforce. From the top to the bottom of the Chinese State or of the Communist Party, those who plan or execute the scheme of terror and mass human rights violations against Falun Gong practitioners must know that they will be held accountable for their criminal behavior, including in front of numerous foreign courts. The culture of impunity that has corrupted China cannot anymore cover this simple fact: global justice is on the march, and will one day put behind bars one or more of those responsible for the Falun Gong persecution.
Mr. Grant has no association with Falun Gong nor its practitioners. (Philip Grant, Lawyer, President of TRIAL 3/21/2003 2:32)