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 one of the conference speeches by Spanish lawyer Carlos Iglesias, entitled "Immunity, Impunity and Genocide in the New Age", which was given on the morning of Tuesday January 27th.
At the beginning of the XXI century, we are now living in the new age of globalisation, 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 realise 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 face of this, and despite the important advances of International Criminal Law, the commitment and admirable effort of numerous nations, non governmental organisations, 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 defence 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 of 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 of 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 counties 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 recognised 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 recognised 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 conscious. 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, recognise that the functions of a head of State cannot include actions such as tortures, 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 generally 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 a 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 don 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 utilising 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 behaviour, including torture and the taking of hostages, do not constitute acceptable behaviour 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, ones 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 fulfilment 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 recognised 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 recognising immunity to these officials, thereby limiting the application of the principle of universal justice, when they are prosecuted by a foreign states, even in cases of extremely serious human rights violations such as the case of genocide.
As conclusions 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 countries 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 except 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 totally unrealistic to think that a state is not going to recognise or is going to withdraw immunity from its own head of State. Lastly, one additional “impunity loophole” exists in the cases of countries who do not recognise 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 OF 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 organised in a methodical manner the persecution of this popular Qigong practice known 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 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 recognise or punish the crime of genocide. The prosecution and punishment of this crime in China is therefore not viable. Also, it is important to emphasise 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 person the 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 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 recognise 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 bring 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 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 that 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 received their due punishment. To be able to achieve this we need a will to act and courage from judges the judicial bodies world 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 recognises 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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