US Circuit Court Affirms Immunity of Former Chinese Leader for Alleged Crimes of Genocide and Torture
The 7th District Courts affirmation of a previous ruling on the genocide case against Jiang Zemin was notably silent on the issue of immunity. Dr. Marsh, attorney for the plaintiffs, said they will appeal to the US Supreme Court.
In its ruling, the court stated it was “not unsympathetic to the appellants’ claims” – echoing sentiments of the Department of Justice’s attorney who, during oral arguments for the case, called the persecution of Falun Gong “heinous.”
While the 7th Circuit Court of Appeals affirmed the District Court’s deferral to the Executive Branch to resolve immunity-based defenses to these and similarly serious allegations via diplomatic rather than legal channels, the Circuit Court emphasized the seriousness of the allegations and reiterated in their Opinion the role of Jiang in initiating and implementing what many have described as unspeakable crimes against humanity.
Dr. Terri Marsh, attorney for the plaintiffs, commented, “[Former leader] Jiang Zemin does not enjoy immunity under US law or under the international standards created in the wake of Nuremberg and affirmed and re-affirmed by domestic and international courts around the globe.”
Plaintiffs will file an appeal to the US Supreme Court, and if necessary to the United Nations Commissions on Genocide and Torture.
Legal Arguments for Genocide
The 7th Circuit Court of Appeals issued its Opinion in WEI YE, HAO WANG, DOES A-F, and others similarly situated v JIANG ZEMIN and OFFICE 610 on September 8, 2004. The Court of Appeals affirmed the District Court’s Opinion, issued on September 12, 2003 stating that although they are sympathetic to appellants’ claims, they believe this to be a matter for the Executive Branch to effectuate through diplomatic channels, rather than a decision for the Courts. Their decision concluded, “Success depends on diplomacy, not United States courts.”
The 7th Circuit, in its affirmation of the District Court’s deference to the United States Department of Justice’s position on the issue of separation of powers – that this is not a matter for the courts to decide through legal channels, but rather a matter for the Executive Branch to resolve via diplomacy – shaped the Court’s characterization of all other immunity-related issues addressed directly in its Opinion or indirectly through the Court’s silence. For example, while the Court acknowledged the Defendants’ violations of such jus cogens as genocide and torture, they ignored or perhaps missed the significance of jus cogens violations – violations of norms which comprise the very basis and foundation of the legal and moral order of Man.
More generally, the Court was silent regarding virtually all immunity-related issues, including, as lead counsel Terri Marsh noted, the principle articulated in Plaintiffs’ briefs and in oral argument, that “immunity is not impunity.” Even apart from the House of Lord’s decision in the Pinochet case, the recent Pinochet decision in Chile, or the ICJ ruling in Belgium v Congo – all supportive of the non-immunity of former heads of state–the principle of non-immunity applies to Defendant Jiang Zemin under U.S. case law which clearly states that “alleged acts of torture, execution and disappearances of a dictator are not official acts… because the officer is not doing the business he was empowered to do.” (Hilao v Marcos, 25 F. 3d 1477). Thus, the inquiry is not whether Jiang Zemin used his official position to engage in the criminal acts, but whether those acts were taken on behalf of Jiang Zemin, instead of China (U.S. v Noriega, 746 F. Supp. 1506, 1522).
As noted in Plaintiffs’ pleadings, there is a wealth of evidence indicating that Jiang launched the persecution against Falun Gong for personal gain, as stated by CNN’s Senior China Analyst Willy Lam, who wrote, “Jiang has mobilized a Mao-era mass movement against… Falun Gong, … and the most severe criticism leveled at Jiang’s handling of Falun Gong is that he seems to be using the mass movement to promote allegiance to himself.”
While the 7th Circuit Court of Appeals was similarly silent regarding the arguments proffered by Plaintiffs regarding the justiciability issue itself, it is important to note that the 7th Circuit Court of Appeal’s deference to the separation of powers argument presented by the Department of Justice in no way diminishes the weight given by the Court to the crimes perpetrated by Jiang against Falun Gong. Similarly, although the United States Department of State believes that the persecution is better ended through diplomatic interventions rather than legal precedent — in all other respects, they are in agreement with the Plaintiffs as to the unlawful and immoral nature of the persecution. Indeed all three branches of government agree that the persecution against Falun Gong is wrong.
In conclusion, Terri Marsh, said, “The Declaration of Independence says that all men are endowed by their creator with inalienable rights which include not only freedom of religion, but the right to be free from torture. US lawyers and lawyers around the world will continue to file lawsuits against Jiang Zemin and other collaborating officials until Jiang Zemin is brought to justice.“
Contact: Dr. Terri Marsh – (202) 369-4977
