Speech from the International Conference on "Genocide in the New Era" by German Lawyer Wolfgang Kaleck

The International Conference on “Genocide in the New Era”, organised by “Friends of Falun Gong Europe” and “International Advocates for Justice”, took place in Sweden’s capital, Stockholm from January 26th to January 28th 2004. This is one of the conference speeches by Wolfgang Kaleck, a German lawyer who has worked on legal actions against the chief persecutors of Falun Gong practitioners.

Good afternoon everybody. Thanks to the conference organisers for giving me the chance to speak to you and to speak with my colleagues, the attorneys and barristers who are presenting cases against the Chinese Government in other countries. It's always very helpful to discuss these matters personally. No matter how advanced our methods are, nothing can replace a personal discussion. So I’m very happy to be here.

When talking about impunity and human rights violations, one has to accept that the justice system, not only the criminal courts but also the civil courts, cannot solve all problems. We have all the appropriate reactions when a problem happens in society, not only at the national level but also the international level: every body cries for justice, everybody cries for legal action and everybody cries for a lawyer. I think first of all we have to discuss frankly if there is an alternative model, or if justice is the adequate answer for this kind of problem. So I really appreciate this kind of conference where alternative models can be discussed, for example the Truth and Reconciliation Commission in South Africa.

I'm scheduled to speak about technical problems, juridical problems and political campaigns. I want to speak a little bit about my experiences with the Argentine case and a little bit about my experiences with the Chinese case. Even if we are aware that justice is not the only answer and cannot solve all problems, there can be no doubt that impunity for human rights violation has to be fought wherever in the world it occurs. Genocide, Crimes Against Humanity, Torture and War Crimes are not internal matters. They are concerns of the whole international community. This is more or less the idea behind the International Criminal Court. But when it comes to concrete problems and encounters between human right violators and their victims, politicians usually say, "Oh we don't want to intervene. We don't want to violate their national sovereignty. They know the best way to handle their own problems.” But I think we all have to recognise what happened in Argentina when 30,000 people disappeared, and what’s now happening in China - not only the human rights violations against Falun Gong but also against the Tibetan people, Uiqhurs and all the people who are forced to work and suffer torture in labour camps.

The International Criminal Court is probably the most well known part of the new international worldwide criminal justice system. You have to remember that this court hasn't even begun to work yet and when it begins to work you can expect only ten to fifteen cases in the next ten years. Also, I'm not as optimistic as others because the competence of this court is restricted in many ways. For example, all cases that happened before the 1st of July 2002 are not under the jurisdiction of the ICC. Secondly, there are many important states that didn't sign the statute. So it’s wrong to think that with the forthcoming ICC, analysing national justice systems is a thing of the past. That is wrong. That is wrong because the ICC is not competent in most cases and the ICC will not be able to judge all human rights violations in the world.

The most say ideal situation is when human rights violations are judged and prosecuted in the countries where they occur. But this is not possible in many countries for a variety of reasons. There are some exceptions like South Africa, Argentina and some other South American countries, but we see also the contrary in China where it seems totally impossible within the next few years. So the national justice system of so called “third states” has a great responsibility. But we have to bear in mind that this is not the ideal situation and it’s just a way to begin to attack impunity. I think this is quite important to remember because national justice systems, national prosecutors and national courts are not looking for these kinds of cases. They're not bored with all the robberies and murders they have to judge every day. They stick to their usual daily work because they like it. This is what they can do; this is where their system functions very well. They can see big problems ahead if something like the Argentine case or the Chinese case comes onto their table. This is why I propose to the organisers of this conference not to only talk about the juridical perspective of presenting a case like this in the "third state" justice system, but also to talk about political campaigning because one must convince the national prosecutor and the national court to take the case and really work on the case. We had this kind of experience in our Argentine case.

I'll briefly explain how in Germany we presented cases against ninety Argentine military officers in the name of thirty-nine victims. A group of German mothers asked us to present a case and so we decided to give it a go. This was in 1998 when a similar Spanish case was ongoing, so we tried to copy the Spanish case a bit. We defined ourselves as a network of human rights organisations, human rights lawyers, family members and victims to battle impunity in Argentina. Our plan was to create a small umbrella organisation, a small NGO of judicial groups and lawyers’ organisations: the Coalition Against Impunity in Argentina. Truth and justice for the German people disappeared in Argentina, but German people weren’t the only victims - it was the same for everyone. We have been working on this for five years now and it began very, very slowly. The prosecutors asked us, “Are you serious? Do you really think we stand a chance of taking this case here in Nuremburg?” We had some very long, hard discussions and used a lot of different means to convince them to take the cases.

It may seem like an uncanny coincidence, but this morning I got a telephone call saying that in Argentina yesterday they arrested the ex-chief Jorge Rafael Videla and others, because of the German arrest warrants we achieved after five years of work. So this gives you a rough idea of how long it takes. It's now 28 years since the facts were exposed in Argentina and five years since we began the case in Germany. Only now do we see the first results. And so I think we have to be very patient and very courageous in this kind of case.

We had to deal with a fragile legal framework, because in Germany before 2002 we did not have a very good criminal justice system to cope with cases of human rights violations. For a start we presented the case with the legal argument of “passive personality.” We said that the victims we represented were Germans and so the German justice system was perfectly suitable. The justice system accepted it. About 3 years ago, we tried to convince the justice system that genocide occurred in Argentina but they denied this with the argument that crimes were committed against a political group, not a national or ethnical group. And so we have arrest warrants only in cases where the victims are German.

There are many things to say about this Argentine case. I only want to focus on two or three of them. From the beginning, we went to every politician who was about to travel to Argentina and gave them material about what happened there. So we tried to convince them to mention the cases whilst in Argentina and put pressure on in Argentina. This was very important because it meant that the politicians who were in Argentina were then aware of the problem. This also meant that later on, when we had several occasions where the prosecutor's office wanted to close some of the cases, we could easily approach the German politicians we spoke to and ask them to write to the prosecutor and visit the Ministry of Justice to pressure them to continue the investigations.

Another thing is that from the beginning we never focused solely on what happened 28 years ago in Argentina. We always had in mind that these kinds of human rights violations are happening for a multitude of economical, political and historical reasons, and that within this framework of reasons, Argentina was not the only country. It was not only Argentine citizens involved in the crimes, but also Western Governments who were accomplices of the Argentine Government. So we tried to look into the files of the German Embassy from 28 years ago and we tried to look into the files of the foreign governments. We found that some very interesting communication happened in those times. We also tried to see if there was any connection between the German firms and the Argentine repression. We found a case of 15 or 16 disappeared workers in the Mercedes Benz plant near Buenos Aires. There was one Mercedes Benz manager involved, so we presented a criminal case against him. All these approaches were formed by a team of jurists and judicial people, working together towards a shared goal.

This is more or less the background of the Argentine case. I was approached by Falun Gong practitioners in 2002 when Jiang Zemin went to Germany and they asked me if I would present their case immediately. I said, “No. There is no enough time to present a symbolic case, the time is too short for preparation and I think we would spoil our chances if we stick to this symbolic way of presenting cases.” So we had three or four months of preparation before the case was presented in November of last year; it is still in the preliminary stages. The Federal Prosecutor's office is now deciding if they will accept the case or not. The case is in the name of the German Falun Dafa Association and 40 individuals, composed of victims from several countries, German people who protested on Tiananmen Square and some other interested individuals. The case is directed against Jiang Zemin and 15 other officials. We have had similar problems with this criminal case in Germany to those experienced in the civil cases launched in the United States. We have more political obstacles than we had during the case based on Argentina 27 years ago. Our Chancellor Gerhardt Schroeder went to China several weeks ago with a group of businessmen to make economic deals. He didn't take the Human Rights Prosecutor of the German Government with him. He didn't mention a word about human rights problems in China during his visit.

We have several other problems. One of them is the legal problem with Genocide. I think Terri Marsh mentioned some aspects of this problem already. I shall only say that it's ok with me that this conference is called “Genocide the New Era”. I used the legal argument of Genocide in my complaint, but I also used what I perceive to be harder legal arguments: Crimes Against Humanity and Torture. It's undeniable that torture and crimes against humanity are on going in China right now but it's legally disputable as to whether what’s happening is genocide or not. Especially when it comes to political discussions, I think it's very hard to defend that genocide is going on. What is ongoing in China right now is not genocide in the same fashion as the historical genocides in Armenia or Germany during the Holocaust. We have several other big problems in the case. One is a lack of evidence, because the human rights violations are happening as we speak. Most of the victims are in China so it's very hard to obtain testimonies.

I want to end here. I think it’s important that we all remember that in the whole Falun Gong case, we are at the beginning of the work and we all must take this work seriously. It's not something in which we will necessarily have success tomorrow or this year, or even next year. If we take it seriously, it could be our work for the next few years: to collect testimonies, to speak to the victims, to speak to family members of the victims, to prepare all this in one country, to get the dismissals of all the different courts in the world and then to begin again. This is what happened to many of the victims affected by these kinds of human rights violations and this was also true for victims of the Chinese Government. But there is no reason to stop the work. There is no reason to be satisfied with the situation. I think it's only a question of time before there is a judge who will prosecute Jiang Zemin and all the others responsible for the human rights violations against Falun Gong.