Article from Chicago Daily Law Bulletin: Jiang Liable on Civil Rights: Falun Gong

By: Patricia Manson

January 20, 2004, Tuesday

Victims of a crackdown on the Falun Gong have the right to pursue legal action against the man who directed the torture or execution of thousands of the spiritual movement's members, a group of Chinese nationals contended Tuesday.

The eight individuals asked the 7th U.S. Circuit Court of Appeals to reinstate a class-action lawsuit accusing former Chinese president Jiang Zemin of horrific human rights violations.

In a brief, the eight contended that Jiang as former president -- he left office on March 15, 2003 -- is not entitled to the same immunity that shields sitting heads of state from liability for many of their acts.

A former head of state must answer for such human rights violations as genocide, murder and torture committed in his private capacity during his term in office, the eight argued.

An attorney for the plaintiffs, Terri E. Marsh of Washington, D.C., rejected the notion that Jiang's status protected him from suit.

"Immunity is not impunity," said Marsh, who was in Chicago to file the brief. "Once a head of state leaves office, he's fair game for suit under U.S. law and international law."

Marsh declined to comment on the U.S. government's decision to intervene in the case to suggest that Jiang was immune from suit.

But Morton Sklar, executive director of the World Organization Against Torture U.S.A., did have something to say about the matter.

"The efforts by the Bush administration to restrict these attempts would essentially gut the ability of victims of torture to file these types of lawsuits in U.S. courts," Sklar said in a telephone interview from Washington, D.C.

Sklar said the WOAT U.S.A. intends to file an amicus brief next week arguing that Jiang is not immune from the suit.

Because he is no longer in office, it is up to Jiang -- not the U.S. government -- to advance the claim of immunity, Sklar contended.

And Sklar contended that under the principle of anti-impunity -- which holds that "certain of the most extreme abuses cannot be excused" -- Jiang's alleged actions are not entitled to immunity anyway.

The 7th Circuit's decision in the Falun Gong case will affect other litigants pursuing claims under the Alien Tort Claims Act and the Torture Victims Protection Act, Sklar contended.

Sklar said the decision will be important because of "the threat that the U.S. government's policy on these cases presents to victims of torture, victims of genocide and human rights advocates who are trying to use these statutes the way Congress intended."

In 2002, eight plaintiffs filed suit accusing Jiang and the Falun Gong Control Office of violating international law as well as treaties ratified by the United States with such acts as torture, genocide, arbitrary arrest and imprisonment and the suppression of freedom of thought, conscience and religion.

The suit alleged that Jiang established the office -- known as "Office 6/10" to mark its inception on June 10, 1999 -- to direct the suppression of the Falun Gong movement.

Jiang caused the Ministry of Public Security to prohibit a series of activities engaged in by Falun Gong members and directed the National People's Congress to pass laws retroactively legitimizing the suppression of the movement, the suit claimed.

The suit claimed tactics employed in that suppression have included the execution, rape, disappearance, torture or forced labour of thousands of Falun Gong members.

Six of the suit's plaintiffs claimed Chinese officials following directions from Office 6/10 inflicted human rights abuses on them.

Two other plaintiffs -- Wei Ye, a Chinese citizen living in Illinois, and Hao Wang, a U.S. citizen living in Massachusetts -- claimed Chinese officials violated American law by blocking them from attending protests in Iceland last year during Jiang's visit to that country.

The plaintiffs filed the suit under seal and then moved ex parte for permission to use alternate means to serve the defendants.

U.S. District Judge William J. Hibbler, who was acting as emergency judge, gave the go-ahead for service to be completed by delivering a copy of the summons and complaint to anyone helping to guard Jiang while he was visiting Chicago.

The plaintiffs argued they properly served Jiang by handing the documents to a Chicago police commander stationed at the hotel where Jiang was staying and to U.S. Secret Service agents assigned to protect him.

Jiang and Office 6/10 did not respond to the suit.

But the U.S. government intervened as amicus curiae to suggest that Jiang as the former president of the People's Republic of China was immune from suit.

Thirty-eight members of Congress submitted their own amicus brief urging U.S. District Judge Matthew F. Kennelly to exercise jurisdiction over Jiang and Office 6/10.

In September, Kennelly dismissed the suit after concluding that he was required to defer to the executive branch's determination that Jiang was shielded by sovereign immunity.

[...]

Plaintiffs A, B, C, D, E, F and Others Similarly Situated, et al. v. Jiang Zemin, et al., No. 02 C 7530.

In the brief filed Tuesday, Marsh and attorney Jaykumar Menon of New York urged the 7th Circuit to overturn Kennelly's ruling.

"Prosecution for acts committed prior to or subsequent to tenure in office, as well as for the private acts committed during tenure in office do not interfere with traditional functions of a head of state," the brief said. "Therefore a former head of state may be sued for his acts committed subsequent to tenure in office as well as for acts of torture, genocide and other 'private' acts he commits during his term of office."

Marsh said it was important for the suit to go forward.

"There's a holocaust of genocide and torture occurring in China against persons who believe that if people are kind and compassionate and tolerant and truthful, they will become more enlightened," Marsh said. "I believe that if people around the world understood truly what is going on in China today, they would do whatever they could to stop the persecution now."

The case before the 7th Circuit is Plaintiffs A, B, C, D, E, F and Others Similarly Situated, et al. v. Jiang Zemin, et al., No. 03-3989.