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 Attorney Ning Ye, entitled "The PRC's Massive Persecution Targeting Falun Gong is a Cime of Gencoide", which was given on the morning of Tuesday January 27th.
The term “genocide” is new legal terminology created by Raphael Lemkin, a Polish-born adviser to the United States War Ministry, and is a combination of the Greek word ‘genos’ (race or tribe) and the Latin suffix ‘cide’ (to kill). According to Lemkin, genocide signifies “the destruction of a nation or of an ethnic group and implies the existence of a coordinated plan, aimed at total extermination, to be put into effect against individuals chosen as victims purely, simply and exclusively because they are members of the targeted group.” (Raphael Lemkin: “Axis Rule in Occupied Europe”, published in 1944.)
The Crime of Genocide is different from crimes against humanity, even though in a broad sense, they are one and the same. The definition of what constitutes a crime against humanity was established at the Nuremberg Trials. The jurists at Nuremberg did not invent a new concept, and neither did they adopt the new-born legal norm. The Nuremberg Trials simply employed and developed Montesquieu's ideals on international law, which he described as ‘universal civil law, in the sense that all peoples are citizens of the universe.’ Montesquieu believed that killing someone simply because he or she exists is a crime against humanity, a crime against the very essence of what it is to be human.
This non-discriminative killing is not a carefully calculated elimination of individuals because they are political, ideological or religious adversaries, or because they hold to what are deemed as false beliefs or dangerous theories, but a crime directed against the person as a person, against the very humanity concerning the individual victim.
The concepts pioneered by Lemkin were adopted, extended and developed by the Convention for the Prevention and the Punishment of the Crime of Genocide which was voted into existence by the General Assembly of the United Nations UN) in 1948. The People’s Republic of China (PRC) and the United States later became member states of the Convention. Now as the whole world watches, the PRC’s habitual state behaviour is raising its right hand to sign international treaties, and immediately breaching them with its left hand.
The systematic, persistent, brutal deliberate and bloody persecution targeting Falun Gong and its members driven by the government of the PRC in massive scale throughout the nation since July 1999 has the distinguished specificity of genocide under the provision of UN International Convention on Prevention and Punishment of Crimes of Genocide. Both the United States and the PRC are signatories of the Convention.
Genocide is an internationally condemned crime which should be punishable by either international tribunals or domestic courts of the member states to the Convention with limited exceptions in practice. Therefore, genocide is also a federal criminal offence in such a member state as the United States. When the government of the United States ratified the Convention in December 1989, Congress immediately adopted it into the Federal Penal Codes. Pursuant to U.S. public law, a commission of genocide or an incitement of genocidal crimes may be subject to up to a twenty year prison term if the perpetrators are convicted.
When we raise the issue as to whether a sort of massive persecution targeting a group of people is a crime of genocide, we must first carefully examine the original wording of the Genocide Convention, finding definitions in the context of the Convention itself, before we go any further to examine any subsequent interpretations. Let’s refer to the original provision of the convention:
“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
Killing members of the group;
Causing serious bodily or mental harm to members of the group;Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part of the group;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.” (Article 2)
The Convention has such plain language in defining the crime of genocide as “killing”, “members of the group”, “causing serious bodily or mental harm”, “deliberately inflicting”, and “bring about its physical destruction in whole or in part of the group”. To point this is critically important because it appears that the founders of the Genocide Prevention and Punishment legal system did not intend to leave any ambiguous loopholes for later generations in dealing with such heinous international crimes. Here, Article 2(b) and 2(c) are clearly applicable to the crimes of persecuting Falun Gong, while Article 2(a) also applies. The fact that more than a thousand Falun Gong practitioners have been physically destroyed by trauma related to torture is a sort of “massive killing”. Killing by instant execution or through the lingering affects of torture is no different. The genocidal nature of such massive killing becomes apparent in the light of the massive scale that the killing took place in the lethal environment depicted by Article 2(b) and 2(c). Falun Gong, regardless of its own interpretation, is a specifically targeted “religious group” in the eye of its persecutor. Massive killing does not necessarily take the form of collective executions by gunshot or in gas chambers. A large scale of destruction of its members’ physical well being using the vicious means of torture that cause lingering complications leading to death is “killing” in the context of genocide.
As for what the Convention defines as “causing serious bodily or mental harm to members of the group,” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part of the group” is precisely what we have witnessed in what the PRC has done to Falun Gong thus far.
According to Article 3, a person or a sovereign that has committed the crime of genocide does not have to have its action qualified for all of the enumerated elements. One of those enumerated is sufficient. Punishable acts include the following:
Conspiracy to commit genocide;
Direct and public incitement to commit genocide;
Attempt to commit genocide;
Complicity in genocide.
Article 4 of the Convention places the “constitutionally made ruler” (dictator or head of state) in the same position as that of an ordinary individual:
“Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” A defendant or potential defendant of the Genocidal Crimes, in whatever official positions he/she is in a sovereign state, regardless whether such a sovereign state is a member state to the Convention, is subject to punishment of any competent tribunals, domestic or international.
The Genocide Convention is binding upon both member states and non-member states in respect to its measures of prevention and punishment. Convenience of domestic constitution, law or legal environment cannot be used as an excuse to evade the application of the Convention in term of its binding force. The Convention clearly declares that the legal mechanism in prevention and punishment of genocide is a “jus congen”, i.e. a preemptive legal norm prevailing any other laws and rules if both are in conflict. The judicial practice is that the international community, from time to time, organises special tribunals to adjudicate the crimes of genocide such as in the case of Cambodia and Rwanda, etc. During the decades since the formation of the international Genocide penal system, little progress had been seen in deterring genocidal crimes through establishing a permanent international trial court in punishing crimes of genocide. This frustrating situation has been changed since the establishment of the permanent International Criminal Court in Hague, Netherlands pursuant to Rome Statute. According to Rome Statute which came into force in July 2002, that permanent international court of criminal justice exercises its mandatory, not optional, jurisdiction over the following three causes of actions: War Crime; Crimes against Humanity; and Genocide.
Sovereign immunity is not an element of the law of Rome Statute. Whether or not the concerned party is related to a member state to Rome Statute is disregarded. The jurisdiction is mandatory. Though the Court’s partiality and legal authority are yet to be tested when it is confronting a specified criminal defendant from a world power, the text of the Rome Statute does not leave any loopholes for those who break the jus congen, regardless of the wrongdoer’s official position or national affiliation.
Genocide is a crime distinguishable from all other crimes as long as the motivation behind it is accountable. Towards the end of the World War II, when the shocking horror of the extermination and concentration camps targeting the Jews became known to the public, British Prime Minister Winston Churchill stated that the world was faced with “a crime that has no name.” History was of little use in finding a recognised word to fit the nature of the crime that Nazi Germany engaged in during that time.
The narrow interpretation of genocide has the tendency to restrict it to specific types of mass murder specifically targeting an ethnic group of people. Such a narrow interpretation, traceable back to the original form of genocide widely witnessed by the public in WWII, is inconsistent with the language adopted by the Convention which added broad-based crimes targeting a specific “group of people”, and not necessarily a group of people distinguishable by race or ethnicity. However, the misinterpretation of the general term “genocide” and the specific term of “genocide” under the Convention has a long trail.
Raphael Lemkin believed that the expression ‘mass murder’ being used at the time to describe what had happened in Nazi occupied territories was an inadequate description of the totalitarian form of the mass murder phenomenon. The term “mass murder” was inadequate to describe the totalitarian form of killing and systematic destruction because it failed to account for the evil motive behind the crime, which arose solely from “racial, national or religious” considerations and had nothing to do with the process of war. War crimes had been defined earlier in the Geneva Convention, but the crime of genocide required a separate definition as this was “not only a crime against the rules of war, but a crime against humanity itself”, affecting not just the individual or nation in question, but humanity as a whole. Raphael Lemkin was the first person to put forward the theory that genocide is not a war crime and that the immorality of a crime of genocide should not be confused with the amorality of war, which may not be justified, but from time to time is forgiven.
In man’s fight against crimes of homicide, it implies the natural right of an individual to co-exist with his/her fellow species. In the same light, in the case of genocide as a crime, the principle that any national, racial or religious group has a natural right to exist is self-evident. Attempts to eliminate such groups violate the natural right to their self-preservation within the civilised international community.
Alain Finkielkraut, a French philosopher, pointed out the distinguishable nature of the crime of genocide: It is quite a different thing to be regarded as an enemy than as a particular species of vermin to be systematically wiped out. Genocide is a crime on a different scale than that of all other crimes against humanity, and implies an intention to exterminate the chosen group. Genocide is therefore the gravest of the crimes against humanity.
Genocide is a conspiracy aimed at the total destruction of a group and thus requires a concerted plan of action, usually carried out by those who are in positions which enable them to carry out such a conspiracy. Furthermore, commission of genocide may not only be seen in actions, but it can also be found, and is therefore, convictable, in mere “speech”. The instigators and initiators of genocide can initially be cool-minded theorists who turn out to be barbarous actors. The distinguishable specificity of genocide does not arise merely from the extent or scale of the killings, nor their savagery or resulting infamy, but solely from the intention and motives of the actors, or “speakers”, or planners: the destruction of a targeted group of human beings.
It may be noticeable that the uniqueness of the Genocide Convention should not allow too large of a margin for a spectrum of inclusions while deluding its distinguishable features. Many UN member states, particularly those from the developing world, have attempted to go further to include such notions as cultural or economic genocide while others have attempted to add political motivations.
During UN debates on genocide, a French representative remarked, “Even if crimes of genocide were committed for racial or religious reasons in the past, it is clear that the motivation for such crimes in the future will be mainly political. Ironically, and probably not without ulterior motives, the Soviet delegate gave the real reason for the exclusion of politically-defined groups arguing that their inclusion would be contrary to the ‘scientific’ definition of genocide and would reduce the effectiveness of the Convention if it could then be applied to any political crime whatsoever.” In such a case, the truth might be on the side of the delegates of the former USSR.
An extremely misleading phenomenon is that the word genocide was easily and narrowly coined in the company of the Nazi regime. In fact, such heinous crimes can be found in all forms of totalitarian regimes aside from that led by Adolf Hitler. Alain Finkielkraut puts it, “Satan became incarnate in the person of Hitler who represented nothing less than an allegory for the devil.” Fascism became the supreme enemy of mankind during WWII, but that is no longer the situation today, as genocidal crimes committed by another form of totalitarian regime has been either ignored or the international community has pretended to ignore.
In case of Falun Gong, the evidence presented is that the targeted killing and deliberate infliction on the physical and mental well-being of Falun Gong practitioners are not only being systematically committed, but are clearly motivated for “religious” specificity. We also see the solid evidence of a carefully planned conspiracy, dictated by the supreme authority “constitutionally made responsible for” the acts, and coordinated in concert by the so-called super-governmental authority of the “6.10” office under the Politburo of the Chinese Communist Party. The supreme directive regarding Falun Gong has been disclosed as “Destruction of their physical beings on the flesh level, defaming their reputation on a political level, and exhaustion of their economical ability for survival.”
When we are faced with the accusations of genocidal crimes targeting Falun Gong being committed by the PRC under the flag of Chinese Communist Party, a fascism equivalent to totalitarian kleptocracy, the legal definition to ascertain such an international crime should be based upon the context of the Convention itself, not just treatises by a few interpreting or misinterpreting jurists.
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