From the International Conference on "Genocide in the New Era:" Immunity, Impunity and Genocide in the New Era
By Attorney Carlos Iglesias Jiménez, Spain
Introduction At the beginning of the twenty-first century, we are now living in the new
age of globalization, with important advances in the technology sector and
telecommunications, which shortens ever more the distances between countries and
between the continents, making possible a coming together of economic, cultural
and even legal and judicial exchanges. Today, jurists and lawyers around the world can, through the internet, have
immediate access to the constant and many changes taking place in the different
national judicial systems. And in this moment of history, the flow of
information from lawyers is practically unlimited, and of easy, fast, and
convenient access. This situation can, without a doubt, enable and promote
developments in the global policy of protection of international human rights.
However, we can't fail to realize that, in spite of the important advances in
the struggle against impunity, one of the most notable milestones being the
creation of a permanent International Criminal Court, the most severe crimes and
violations in the arena of human rights and of International Criminal Law remain
unchanged in different parts of the world, and have not received an acceptable
response from International Law itself. Unfortunately, in some cases,
International Law remains unmoved in the face of the horrors of murder and
terrible crimes that are taking place against thousands of human beings. In these very moments at present, countless people are being tortured and
murdered. Unfortunately, human morality and consciousness hasn't evolved at the
same pace as that of technological advances, rather, human consciousness and
morality have in many respects declined at a time where we've seen the growth in
knowledge and intellect of our human society. One perhaps could even state that
today, such sophisticated and refined methods employed by criminals and
torturers around the world to produce crimes on a larger scale, likely have no
precedents in recent human history. In the face of this, and despite the important advances of International
Criminal Law, the commitment and admirable effort of numerous nations, non
governmental organizations, public institutions and people who fight and defend
human rights, these have proven to be insufficient to prevent and to punish many
of the most serious crimes against humanity. We can state that the basic goal of the International Community is the
defense and respect of human rights is two fold: On the one hand, it seeks to prevent these types of crimes from occurring in
any country of the world, regardless of ideology, race, sex, political
situation, social, cultural, religious or personal belief; this could be
classified as preventive work. Equally important, on the other hand, it seeks to
avoid the impunity of those crimes, that is that these crimes not go unpunished,
and that those responsible, the criminals and torturers, should be held
accountable for their crimes in front of Justice. The victims and the family members of crimes such as genocide, tortures and
crimes against humankind, could never understand how those responsible for such
horrendous crimes are able to go unpunished, and how in many cases with the
complicity of high officials of certain nations, they can lead a tranquil and
respectable life. There is therefore a clear objective to try to eliminate what authors label
as the so called "impunity loopholes", meaning ways to circumvent or avoid
impunity or punishment for these crimes. These loopholes unfortunately, despite
unquestionable advances made so far in International Criminal Law, do exist, and
in many instances are due to complicity of certain political and judicial powers
of the nations. Certain of these loopholes include issues such as the "Immunity" of Heads or
former Heads of State, or Ministers of Foreign Affairs, when they are prosecuted
by other countries different from their own nationality or territory. In other
cases there is restrictive or limitative interpretations of Universal Justice or
Universal Jurisdiction, and there exist also "impunity loopholes" in
International Criminal Law itself. These gaps are taken advantage of by the very
criminals and genocide committers themselves, allowing them to avoid the
prosecution of their crimes. Genocide and Immunity We have the firm conviction that diplomatic immunities are not applicable
when we are in the arena of International Criminal Law. Any interpretation to
the contrary would be facilitating "impunity loopholes" and it would go against
the very principles that govern International Humanitarian Law and International
Common Law. Just as stated by the Secretary General of the United Nations in the
report elaborated for the Security Council on May 3rd of 1993, about the Statute
of the Tribunal for the former Yugoslavia, it would consider as International
Humanitarian Law the Geneva Convention of 1949, the Convention for Prevention
and Sanction of the Crime of Genocide of December 1948 and the Letter of the
International Military Tribunal of Neuremberg of 1945, all of which must be
respected, "jus cogens". In the principles of International Law recognized by the Statute of Nuremberg
and Sentences of the Tribunal of Nuremberg that were confirmed by the General
Assembly of the United Nations, it stated that "the fact that the person
committed a crime of international law and acted as Head of State or as the
State Authority, does not exempt him from responsibility in accordance with
International Law". In the same way, Article 7 of the Statute of the International Criminal Court
for the former Yugoslavia states that "the official position held by the
accused, be it Head of State or Government, or of a responsible official of the
Government, will not exempt him of responsibility and neither will it reduce the
sentence". Likewise, Article IV of the Convention for the Prevention y
Sanction of the Crime of Genocide, clearly states that: "the persons that
have committed genocide will be punished, regardless of whether they are rulers,
officials or individuals". Finally, the very Statute of Rome, which gave origin to the present
International Criminal Court, states that "1.- The present Statute will be
applicable equally to all without any distinction based on official position. In
particular, the official position of a person, such as Head of State or Head of
Government, member of a government or parliament, elected representative or
government civil servant, in no case will be exempt of criminal
responsibilities, neither will it constitute reason to reduce his sentence 2.-
The immunities and norms of special procedures that come with the official
position of a person, with respect to internal law or international law, won't
prevent the court from exerting its competence upon that person." We therefore find ourselves with a principle that is applicable to all
International Criminal Law, regardless of whether it is Common Law or Treaty
Law. We understand that the concept of immunity comes as a result of the principle
of equality of sovereign nations. Meaning that, the acts of any country which
can be considered "governmental actions" or internal actions, cannot be
investigated by foreign tribunals. The immunity of Heads of State is defined or
recognized in two different ways: "ratio personae" and "ratio materiae". In the
first way, the ruler is exempted for being who he is, that is, the Head of
State. It is a kind of courtesy that a nation gives to another to prevent their
tribunals from being used to decide private matters or matters that may damage
the relations among different countries. Under the second way, immunity is
maintained after he has ended his position as Head of State, but only in regards
to "acts of government" that the Head of State carried out during his rule, not
in regards to private actions. Can the most severe crimes against humanity such as genocide, torture or the
extermination of a group of people, be considered government actions? This is
not defensible under any law or human conscience. In this aspect, the sentence
pronounced more than 55 years ago by the Nuremberg International Military
Tribunal is historic, in which it stated: "Men are those who commit the crimes against International Law, not
abstract entities. The goals of international law will only be effective if the
individuals that commit those crimes are punished... It has been suggested
that... if the action itself is an act of the State, the ones who do it are not
personally responsible, but are protected by the doctrine of sovereignty of the
State. In the opinion of the Tribunal this position should be rejected... The
principle of international law that, in certain circumstances, protects the
person that represents a State, cannot be applied to acts considered criminal by
international law. The authors of these actions cannot seek protection in their
official position and be exempt of punishment through the due legal process."
From our point of view, the principles of International Criminal Law,
including Common Law, recognize that the functions of a head of State cannot
include actions such as torture, or practices of genocide and extermination,
since it should be understood that any human must have a conscience and know
perfectly well that certain things are abominable, and obviously cannot be done
under the protection the power of an official office or under the umbrella of
"government actions". Immunity in the International Criminal Courts and in Universal Jurisdiction
It is general accepted that one cannot allege immunity for Heads of State,
Former-Heads of State or members of Government, when facing prosecution in an
International Criminal Court for these crimes. However, there is still debate
within legal circles whether immunity remains applicable when a national foreign
state, basing itself on the principle of Universal Jurisdiction, assumes
jurisdiction over those who hold or previously held official position. For example, in the case of Spain requesting senator Pinochet's extradition
from England, it was subject of debate whether to grant immunity as a
Former-Head of State regarding the criminal actions he was accused of in Spain.
The resolution of the English Chamber of Lords was highly clarifying in this
respect, by deciding that Former-Heads of State do not enjoy immunity for cases
of torture or for other atrocious crimes. Lord Nicholls stated: "Senator
Pinochet was accused, not of personally torturing his victims or causing their
disappearances, but for utilizing the power of the State that he held... and it
is hardly necessary to state that the torture of his own people or foreigners,
cannot be considered as a role of a Head of State according to international
law...But International Law makes quite clear that certain kinds of behavior,
including torture and the taking of hostages, do not constitute acceptable
behavior for anyone. This is applicable more so to Heads of State, as well as to
anybody else, and coming to the opposite conclusion would make a mockery of
International Law." On his part, Lord Steyn was even more conclusive in stating that if the
actions senator Pinochet was accused of were to be considered "official acts of
government", then we would have to say that when "Hitler ordered the 'final
solution', his action should be considered as an official act derived from
exercising his role as head of State". "Considering the state of International
Law, it is difficult for me to hold that committing such serious crimes could be
considered actions carried out as part of the duties of a head of State... and
general Pinochet does not have rights of immunity." It can be interpreted from this precedent that for certain more serious
actions in violation of human rights, those that are repulsive and offensive to
the human conscience, one cannot argue the immunity of Head or Former-Heads of
State, because death, torture or extermination are not among the roles of a
ruler, and have no justification whatsoever, and likewise could never be
considered official acts or acts of government. Sentence of the International Court of Justice of The Hague: The Case of the
Democratic Republic of Congo against Belgium As one example to illustrate the different opinions regarding the application
of immunity when a foreign national state prosecutes another Head of State or
Government Official, we have the case of the Republic of Congo against Belgium.
In this case, Belgium issued an arrest warrant for the Minister of Foreign
Affairs of the Republic of Congo for crimes he committed prior to coming to
office. On February 14, 2002 the International Court of Justice of The Hague
condemned Belgium and granted immunity to an active Foreign Minister. In this
ruling the Court asserted that in cases of high Government positions, in order
to ensure the effective fulfillment of their roles as officials of their state,
they should enjoy immunity. They argue that official positions are of such a
high transcendence, that during the period when an official holds their official
post, you can't differentiate between which acts of theirs are official in
character and those that are private in nature, and so that immunity will apply
to both. In this sentence by the International Court of Justice, it grants the
absolute nature of criminal immunity for Ministers of Foreign Affairs (as well
for the Prime Ministers and Heads of State), with the following exceptions: First, not all official positions can be considered immune: only Heads of
State, Prime Ministers and Ministers of Foreign Affairs who are active in office
are considered immune. Therefore, immunity would not be recognized once they
leave office for their private acts, as long one other condition is met, which
is that, the foreign national state must base itself on International Law. The second exception exists when the prosecutor is the International Criminal
Court, in which case immunity would therefore not exist. And the third exception occurs when the official does not enjoy immunity in
his own State of origin, or if immunity was withdraw by the State. These two
circumstances in practice are rarely if ever applicable. The Congo sentence deserves harsh criticism for being a serious obstacle to
the implementation of Universal Justice, since on the one hand it implies that a
Head of State or a Prime Minister or Minister of Foreign Affairs actively in
office, cannot be prosecuted in another national foreign state. Even if the
doctrine of Universal Justice is invoked, these cases would enjoy immunity.
Therefore, the only way to prosecute would be through the International Criminal
Court. We will see later, however, that this presents a serious obstacle for
certain countries that did not subscribe to the Statute of Rome and that also
have the veto power in the Security Council of the United Nations. So, when then can a foreign national court prosecute these rulers, namely
Heads of State, Prime Minister or Minister of Foreign Affairs, who are active in
office? The answer is that this can only be done when they have left office or
are no longer active in their post. An additional requirement however for this
condition to be met, is that the acts must be private in nature and not official
acts of state. At the same time, the foreign state that is carrying out the
prosecution must base itself on international law and not its internal or
national laws. The Congo sentence mentioned above, allows for an "impunity loophole" for
Heads of State, Prime Ministers and Ministers of Foreign Affairs, by recognizing
immunity to these officials, thereby limiting the application of the principle
of universal justice, when they are prosecuted by a foreign state, even in cases
of extremely serious human rights violations such as the case of genocide. In conclusion, regarding the specific issue if immunity of Head and
Former-Heads of State or Ministers of Foreign Affairs, in terms of the Congo
decision, and taking it concretely to the case of genocide, we do not agree with
this sentence. First of all, a Head of State who is active in office can't enjoy
immunity to commit genocide and tortures by basing himself on the importance or
necessity of his official role in his country's government. Simply stated, in
cases of the gravest crimes against humanity, absolutely no form of immunity can
be granted. This was already stated in the sentence of Nuremberg Tribunal of
1946, where if a crime of international law is committed by a head of state, he
is not immune from criminal responsibility according to international law.
Secondly, foreign national courts must complement the role of the International
Criminal Court, and therefore their ability to intervene should not be limited,
especially in those countries who have not ratified the Statute of Rome.
Thirdly, it is totally unrealistic to think that a state is not going to
recognize or is going to withdraw immunity from its own head of State. Lastly,
one additional "impunity loophole" exists in the cases of countries that do not
recognize the jurisdiction of the International Criminal Court, but who are
permanent members of the Security Council of the United Nations and have the
power to veto any proposal. This case applies specifically to China in regards
to the persecution of Falun Gong, which we will see following. CONCRETE ANALYSIS OF THE SITUATION OF GENOCIDE IN CHINA IN THE PERSECUTION OF
FALUN GONG At present, and for more than four and a half years since July 1999, one of
the cruelest and bloodiest genocides of the history of humankind is taking place
in mainland China. It has as its head culprit the Former Chinese Head of State
Jiang Zemin, who organized in a methodical manner the persecution of this
popular Qigong practice know as Falun Gong and the extermination of its
practitioners who do not renounce their own personal beliefs. It is difficult to find a case where one can see with greater clarity the
concept of genocide than in the persecution of Falun Gong, where government
officials are attempting to eliminate and root out the embedded personal beliefs
of millions of people that act according to their hearts along ancient
traditional and spiritual practices from China. Following are some specifics regarding the current legal situation of the
case of Falun Gong: In order to bring Jiang Zemin, the mastermind of the persecution of Falun
Gong, to justice, there are many legal obstacles and issues to consider. Of the
various potential ways of prosecuting Jiang, one may first argue that he should
be prosecuted in his country of origin for the crimes he has committed against
his own people. China is in fact a signatory of the Convention for the
Prevention and Sanction of the Crime of Genocide of 1948, however it has never
passed into its internal law the contents of this Convention, and therefore the
crime of genocide does not exist in the Chinese Criminal Code, and China does
recognize or punish the crime of genocide. The prosecution and punishment of
this crime in China is therefore not viable. Also, it is important to emphasize
that there is no independence in the Chinese legal system, meaning that the
judicial system is just an extension of the regime, and simply a tool at the
disposition of the Chinese regime. The other alternatives to prosecute Jiang therefore lie in the foreign
national courts and international legal bodies. Since Jiang is no longer
President of Head of State of China, at this present moment he does not enjoy
immunity, and can be prosecuted by Foreign Criminal Courts based on the
principles of Universal Justice and International Law. There is more than
sufficient evidence that he is the person directly responsible for the
persecution of Falun Gong, evidence that includes thousands of cases of torture
and murders, and these abuses can't be considered under any circumstance to have
been carried out under "government actions" while he was in power. Various
lawsuits in countries around the world are currently using national foreign
courts to prosecute Jiang Zemin. His status as ex Head of State also makes it
possible to file civil lawsuits against Jiang Zemin, as is the case of the
United States, for economic damages his crimes have caused victims of this
persecution. As for other government officials in China responsible for this
persecution, they do not enjoy immunity and can be prosecuted in foreign states.
The international body that should take responsibility to prosecute Jiang
Zemin for the crime of genocide, were it not for the existence of "impunity
loopholes", is the International Criminal Court. The Statue of Rome, on which
the ICC is based, is an extremely important tool in the fight against impunity,
yet a major loophole lies in that those countries who have not signed the
Statute do not recognize the legitimacy of the International Criminal Court.
This is the specific case of China. Another unlikely possibility, is that the
Security Council of the United Nations were to present the case directly to the
International Criminal Court, but at this time this would in fact be futile
given that China is a permanent member of the Security Council of the UN and any
initiative presented to the ICC by the Security Council would simply be vetoed
by China. Although these loopholes exist, we see the existence of the ICC in a
very positive light and do not feel there are legal impediments to bringing the
case of Falun Gong to the Court, given that it is the international legal body
of most importance created specifically to prosecute the gravest crimes against
humanity. The Court must know of this genocide in China. As a final conclusion, loopholes of impunity must be eliminated by means of
coordinated function of Universal Justice, applied through foreign national
countries, and the International Criminal Court, complementing each other in
order to grant justice and prevent the concepts of immunity and impunity from
existing in cases of genocide. In this way, those responsible for cruel
persecutions, as is the case of Falun Gong, will be accountable for their crimes
and receive their due punishment. To be able to achieve this we need a will to
act and courage from judges the judicial bodies of the world's nations, in front
of great political power and economic pressures, as is the case of China,
eliminating any type of obstruction or interference that limits or prevents the
implementation of the principles that the international community recognizes for
these severe violations of the most basic human rights. The victims cry in their hearts for justice and we must fight for it. "Justice and history will judge us all for what we do and for what we should
have done and did not".
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