"Law is the Instrument of Justice and Representative of Conscience" - A Letter to a Judge of the U.S. Federal Seventh Circuit Court of Appeals

By Jin Zheng, a Falun Gong practitioner in Mainland China

(Clearwisdom.net)

Your Honor:

I am a Chinese citizen living in Mainland China. I am writing in regards to the lawsuit against former Chinese president Jiang Zemin. My purpose for writing this letter is to briefly express my opinion and suggestion, having been a victim of Jiang Zemin's unconstitutional and brutal persecution and his genocidal policies against Falun Gong practitioners. I have full confidence that you will try this case fairly and justly. In fulfilling your responsibilities as a judge and carrying out justice, your verdict will strongly support our belief that justice and conscience will prevail.

My viewpoints are as follows:

First, as some legal experts have pointed out, the possibility of winning financial compensation through lawsuits filed by U.S. residents against foreign government officials is slim. This kind of lawsuit is nevertheless significant, because it will mean some form of closure and healing for the victims. More importantly, it will record and condemn those crimes committed under this persecution. [ See William J. Aceves, "Liberalism and International Legal Scholarship, The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation"(2000) 41 Harvard International Law Journal 129 at 145] I should especially point out that when a certain form of violence is still ongoing, such as the genocide that has lasted for about five years in China, resulting in the death of nearly 1,000 people and the incarceration of hundreds of thousands of people, such a lawsuit is crucial.

Second, immunity for former heads of state is not absolute. It depends on the facts, "ratione materiae" -- it only applies to public affairs that took place within the range of the official's duty, which means things he did that are related to his function or his public position, but it does not apply to things he did outside his official duties out of personal motives.

It is true that Jiang committed genocide during his term in office and did it as one of methods to maintain his power, but, 1.) He violated "jus congens" or "peremptory norm." The severity and scale of his crime should be regarded as an attack on the code of international law; his crime should therefore not be seen as an action by a public official, so he does not qualify for immunity.

2.) The Chinese constitution and law do not allow torture and genocide. We can thus deduce that Jiang's crimes of torture and genocide went beyond his range of duties, which makes him ineligible for protection under the statutes granting immunity for heads of state.

3.) Since the U.S. and China signed the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, China can no longer claim that torture is part of the public official's actions, so they cannot use immunity to prevent the U.S. from trying him. Article I of this 1984 Convention clearly states, "torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity..." This definition implies that torture carried out with person motives and not out of public duties is not at all included in this definition of torture in the Convention. If an official's torture were regarded as an official function and grounds for immunity, then making torture a crime and the related law to execute the Convention would become meaningless.

This leaves only two possibilities: if the defendant committed torture with private motives, he then cannot claim immunity as a public official; or, the defendant committed torture in the name of the government, in which case he will enjoy immunity and cannot be sued. Furthermore, former foreign heads of state qualify for the same immunity as other foreign government officials when they conduct official business. If a former state head is granted immunity, then other officials would also enjoy the immunity from being charged with torture, which would practically annul the Convention. Thus, acknowledging a former state head's immunity for his torture action within his term of office is contradictory to the letter and spirit of the Convention.

Third, On March 5, 2004, some officials from the United States government submitted an Amicus Curiae brief to respond the plaintiffs' appeal documents submitted on January 19, 2004, which proposed an objection for the immunity and for issuing a subpoena. A certain viewpoint is popular in the U.S. that the issue of immunity for the head of state will affect U.S. relations with foreign countries. When dealing with immunity issues, looking at the Pinochet case tried by a court in England as an example, the court in the U.S. might be tempted to pay more attention to the administration's opinions instead of using international laws as the basis in their processes. [See Curtis A. Bradley and Jack L. Goldsmith, "Pinochet and International Human Rights Litigation" (1999) 97 Michigan Law Review 2129 at 2148].

I believe that the United States' rule of law is a source of pride and a strength of the American courts, which involves participation and respect from the concerned legislation and administration units. Both the U.S. Senate and House of Representatives have passed resolutions condemning China's persecution of Falun Gong, and the U.S. administration has also opposed the persecution. Numerous U.S. senators, with their signatures on the Amicus Curiae brief in June 2003, have expressed their standpoints regarding the lawsuit against Jiang Zemin. Moreover, these senators have adhered to appropriate interpretations of diplomatic immunity. [28 U.S.C.1602 et. Seq]

Fourth, civil lawsuits involving international human rights violations including torture are nothing new in the U.S. Previous cases have resulted in different verdicts in terms of whether or not to give foreign heads of state who have committed human rights violations immunity. Whether or not international law or Customary International Law in particular directly applies to these instances is not clear in U.S. laws. I think the current situation presents an excellent opportunity for you honor to follow Jus Naturale, the natural law.

Human rights are the landmark of civilized society. Since World War II, the protection of human rights has progressed on a worldwide scale, but such progress is still insufficient when weighed against people's suffering. To uphold human rights around the world is still one goal for humankind to achieve. I believe the U.S. was, still is and will be in the future a staunch defender of human rights. The famous Pinochet case has provided a strong example of the courts and international community effectively upholding the application of international human rights laws.

I believe that Falun Gong practitioners' opposition to Jiang's genocidal policies constitute a significant component of a global human rights movement. This time, the lawsuit against Jiang filed in the U.S. and the support from human rights organizations and from all manners of people is a manifestation of Jus Cogens, a body of "higher law" that no country may violate. History is made step by step; by following our conscience we will uphold justice.

Professor M. Cherif Bassiouni had this to say, "Civilization is not judged by scientific achievements or the prosperity of a nation; it is determined by humanitarian values and its respect for the law. This is a global challenge facing mankind. In this regard, we as legal scholars bear great responsibilities because our job is to construct, make and apply laws. When we carry out our responsibilities, international law is an important tool. If a new world order is to appear, then justice will undoubtedly be an important element." [1998) 4 All ER 897 at 927] The concern for and a clear understanding of the true circumstances of Falun Gong practitioners in China is, in my opinion, perhaps the necessary foundation on which to judge this case.

For the above stated reasons, I respectfully ask court not to dismiss this case, but to proceed based on the nature of the facts.

Sincerely, Jin Zheng May 19, 2004
Chinese version available at http://www.minghui.org/mh/articles/2004/5/21/75186.html

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