(Clearwisdom.net) For Part One: http://www.clearwisdom.net/html/articles/2010/4/4/115879.html
Background
On Dec. 12th 2005, during the visit of Luo Gan, former Secretary of Political and Legal Affairs of the Central Committee of the Communist Party of the People's Republic of China, Coordinator of the Office for the Control of Falun Gong (6/10 Office), to Argentina, the Association of Falun Dafa in Argentina filed a lawsuit against Luo Gan for torture and genocide of Falun Gong practitioners in China. The case was accepted by the judge of Federal Criminal Court No. 9, Dr. Octavio Aráoz de Lamadrid.
After more than 4 years of investigation, including a trip to New York to interview refugee victims, and taking testimony from different victims who came to Argentina to testify, the judge reached the conclusion that, as from the year 1999, upon the request of the then president of the People's Republic of China, JIANG ZEMIN, a fully organized and systematically developed plan was put into motion to persecute Falun Gong and its practitioners. The purpose was to force the practitioners to give up their spiritual belief through torture and murder, thus eradicating Falun Gong.
On the 17th of December 2009, Judge Araóz de Lamadrid ruled that there was sufficient evidence for him to declare them as suspects of the crimes described as crimes against humanity regarding the persecution of Falun Gong practitioners in China.
He ruled that they should be brought forward to declare during preliminary interrogation. Due to the seriousness of the crimes involved, he issued a capture order to bring these two to Argentina for questioning. The capture order was to be carried out by the Interpol Dept of the Argentine Federal Police. After they are bought to Argentina, they will be placed in solitary confinement. The judge based his ruling on the principle of universal jurisdiction.
Since the onset of the lawsuit, the Chinese government has been coercing the Argentina government to block the case. On the 21st of December 2009, the judge resigned due to internal political pressure from the Argentina government. He said in an interview that he preferred to step down than to give in and do things which he will regret later.
In March 2010, Judge de Lamadrid attended the 13th Session of the UN Human Rights Council to bring the case to the international community. On March 17, he made a speech at the Forum on Human Rights in China organized by the United Nations Association of San Diego.
In his presentation, Dr. Aráoz de Lamadrid explained the universal right of access to justice, saying that, "Any victim of a crime described as AGAINST HUMANITY has the right to present his appeal for justice in a court of any country (under the conditions indicated) and to demand an investigation and possibly a penalty for the perpetrators of these crimes".
He also urged that, "...the urgent recognition, promotion and protection of all human rights imposes on States the need for maximum efforts in all areas to achieve this objective and to refrain from putting political or economic interests as the priority.
He stressed that the development of economic relations with China "must be accompanied by an effective political dialogue, and demands that respect for human rights be an integral part of the new framework of agreement which is currently being negotiated with China.
The following is Part Two of Judge Octavio Aráoz de Lamadrid's speech:
V) Development
1) Taking up again the proposed issues, I should point out that the first raised issue regarding the possibility to prosecute a person who has diplomatic immunity and/or jurisdiction immunity, is not so difficult to answer as it seems to be initially.
There are two reasons:
a) The first one is that the Vienna Convention on Diplomatic Relations (United Nations, 18 April 1961) determines that any person entitled to those privileges will enjoy them from the moment he enters the territory of the receiving State to take possession of his office and ceases when the privileged person leaves the country. It is valid to conclude that if the individual of a sovereign state does not enter the country (Argentina, in my case) to take possession of a diplomatic office, the protection does not reach him and besides it is clear, that while he is in a foreign country, he is not entitled to any protection from an arrest warrant and extradition (if this is materialized, the entry into the country would not be to take a position, but to be prosecuted, which is a different matter).
b) With regard to jurisdiction immunity, following the practice before the 1963 Vienna Convention on Consular Relations, it was established that a diplomatic official cannot be detained except in the case of a serious crime, and always by judicial decision. Genocide seems to be a crime sufficiently serious enough so that this immunity, resulting in these cases, lacks virtuality.
We can point to an additional argument, summarized, in order to give a generic answer, and, therefore, traverse all the questions: when we are dealing with the complaint of a multiplicity of acts (homicide, torture, torment, enforced disappearances, etc.), committed in a systematic manner by the apparatus of a sovereign state (any state), which constitutes, undeniably, clear and flagrant violation of human rights and due to their scale, volume and severity, they must be considered as CRIMES AGAINST HUMANITY. We must be aware that not only internal legislations of all countries around the world are receptive to these type of crimes, but, also, due to their gravity and importance, the entire international community is interested in their prosecution and punishment (see also Universal Declaration of Human Rights, signed on 10/12/1948; Convention on the Prevention and Punishment of the Crime of Genocide, signed on 19.12.1948, the Convention against Torture and Other Cruel, Inhuman or Degrading signed on 10.12.1984, and the Rome Statute which created the International Criminal Court), and, therefore, the "barriers" imposed by the local laws (or even some old international conventions) must give way to the need to investigate and punish such crimes.
2) The second question, which is the axis of this presentation and I would like to emphasize it more, requires a more careful development; I am referring to the principle of universal justice.
1) In the case which was presented to my knowledge, it required (and still requires) that the Argentine Justice guarantees the universal right to access of justice to a religious group which is the victim (in its country of origin and persecuted by the State itself) of persecution, harassment, torture, murder and other crimes, which together are qualified as crimes against humanity. Although the People's Republic of China signed the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, it did not sign the Rome Statute which created the International Criminal Court, and, therefore, is NOT subject to its jurisdiction (I will make a brief reflection on this issue at the end).
The question, therefore, is whether it is possible to try senior Chinese government officials for crimes committed in the territory of China in Argentina (the discussion is valid for any nation) and by Argentine laws. In the criminal law, this is stated as "extra-territoriality of the criminal law" and involves defining the geographical scope where the local criminal law can be applied. "Where" can we take the crimes committed to trial with our laws?
The universal right to access to justice must therefore blend, amalgamate with the various criteria which currently exist concerning the principle of territoriality (it is unnecessary to go into details here), so that the rules do not oppose each other, but rather harmonize with each other.
An old maxim teaches us that there is nothing worse than interpretative technique which implies clear and evident alteration of the unmistakable meaning of the words of law (I include here of course the international treaties and conventions).
Indeed, the primary source of interpretation of law is its writing, but the judicial mission does not end with this, because the judges, as servants of the law carrying out justice, cannot do without the intention of the international legislator and the spirit that abridges the goal of the norm; so that their conclusions, when one studies the international standards or principles, must harmonize and not conflict with internal judicial rules, the fundamental principles and guarantees of the human being.
Ultimately, the Judges, while seeking the meaning of judicial regulations, must see that "the criminal law, which is abstract and generic by nature, must come into agreement with the specifics and the variables of the particular case" (Vincenzo Manzini). They should avoid putting their rulings into conflicts, destroying some for others, and should adopt, as the truth, the one which conciliates them, and leave all of them with value and effectiveness.
It is, therefore, impossible to refuse to carry out an investigation of the characteristics expressed on the pretext of a generic incompatibility of internal rules with international principles. For the judge, this is equivalent to an evasion of his responsibilities as a magistrate, and for the state which he represents, a repudiation of his commitments to the international community.
However, in spite of the topicality of the subject (the fact that we are debating it today demonstrates this), we must recognize that this stance is neither original nor innovative. In this regard, many people, and many years ago, have expressed the same.
Already in 1945, the Spanish teacher, Luis Jimenez de Azua, taught that the principle of "territoriality" of the criminal law (as the basis for punitive validity in the scope) must be complemented - according to the case - with the principle of "nationality", the principle of "protection" (or of "defense") and "...with the principle of the interests of the community ("universal") and regardless where the crime is committed, those offenses which threaten the general interests of the States and of humanity are penalized. Therefore, criminals acting against mankind ('hostes generis human'), wherever they are apprehended, and international crimes are punished..." (see "Lessons of Criminal Law", work compiled and edited by Editorial Pedagógica Iberoamericana, Mexico, 1995, pp. 106).
In present time, the forerunner of finalism, Hans Welzel, also considered that "...For acts of foreigners in other countries, German criminal law (internal) applies only exceptionally (...) according to the principle of global law, for the protection of cultural interests of all States (...) the criminal law (internal) govern these acts regardless of where they have been committed or against which State or citizen they were directed...". (see "Criminal Law. General Part", Editor R. Depalma, Buenos Aires, 1956, pp. 32/33).
In 1970, Werner Goldschmidt (Berlin 1910-Buenos Aires 1987) explained that (see Private International Law, seventh edition, Depalma, Buenos Aires, 1990, pp. 527/533), " ...With respect to international crimes, the cosmopolitan principle is justified, as long as an authentic international jurisdiction is not yet established. In fact, there are crimes that are directed against the international community, such as piracy, trafficking, drug trafficking, genocide, etc. It would be correct to try them in international courts. But while such courts do not function yet in a normal and stable manner (we note here that China has not adhered to the Rome Statute which created the International Criminal Court), the splitting of functions should be adhered to: the courts of each country oversee the functions of the international courts which do not yet exist ..." Today we are also incorporating and being responsible for those cases which the competence of the ICC cannot cover.
Quoting only two world-famous contemporary authors, Günter Stratenwerth (see "Criminal Law. General Part I. The Offense," FJD editor, Buenos Aires, 1999, pp. 44) and Santiago Mir Puig (see "Criminal Law. General Part", 5th. Edition Tecfoto, Barcelona, 1998, pp. 23), who in their countries actually recognize the validity of the "universal" principle as the means (internationally and indisputably established) to expand -mandatorily- the scope of the application of criminal law, when the acts denounced relate to crimes considered harmful to "the common interests of the entire State" or "disapproved generally by all States". Among them, listed in the first place, is "genocide" (a clear example of the application of this principle is the sentencing in Spain of a former oppressor, Adolfo Scilingo, to 640 years of imprisonment, and also in Spain a sentence of up to 17,010 years of confinement to Ricardo Miguel Cavallo, who was extradited to that country from Mexico - in both cases for events occurred during the last military dictatorship in Argentina).
This so-called "universal principle, global or cosmopolitan", therefore, applies in cases of so-called crimes against the law of nations (delicta iuris gentium) and referred to by the current "International Criminal Law" being those crimes which are defined and accepted by the international community (though conventions), and the community of nations as a whole is interested in the repression of those crimes. They have the particularity that they can be punished by any State that captures the offender, regardless where the crime was committed.
In the particular circumstances of this case, the definition of these crimes, which have been accepted by the international community, requires the application of the criminal law from any State to acts committed outside its territory, and precisely the " universal principal, global or cosmopolitan" covers these situations (it should be clarified that there are two manifestations of this principle: a) absolute; whereby the State's criminal law has an absolute extraterritorial effectiveness and applies to any crime, regardless where it is committed, the nationality of the author, the character or the judicial patrimonies which it attacks; and b) moderate; according to which the extraterritorial application of criminal law is justified only when the crime threatens patrimonies which can be considered as belonging to humanity and the State stops the author of these crimes).
However, it is opportune to make some additional details concerning the basis of the "universal principle" to avoid confusion with others that also regulate the application of criminal law in this area (for ex. supplementary principle) and that, likewise, advocates also the application of the national law and jurisdiction to acts committed abroad by foreigners in order to prevent its scandalous impunity.
The substantial difference (William J. Fierro, "The criminal law and international law", 2nd edition. TEA, Buenos Aires, 1997, pp. 374/378) "...resides in the source where the crimes included in the universal principle are produced, and no other than the international community or a transcendent part of it defines, through multilateral conventions, the offenses which are components of crimes against the law of nations (delicta iuris Pentium), which constitute the content of the universal principle (...), the principle is exercised by all states putting their resources and means in the defensive struggle against those criminal attacks, and the judge of the state who apprehends them is competent to punish them ('iudex deprehensionis') and will apply the corresponding penalties on behalf of the international community (provided they do not opt for the extradition of the accused, whenever this is requested by a country).
The difficulties which the battle against such crimes is facing, as in the case of crimes against humanity (genocide), are its magnitude and nature which are repulsive to the most elementary sense of ethics. The nations of the world cannot remain impassive before such already proven atrocities. There is a need to reach consensus and unify efforts to try to eradicate these aberrant behaviors from the face of the earth.
And to all this, an absolutely practical argument must be added, which, in my view, ends any kind of reluctance to apply this principle of universal justice, whose first consequence is to ensure the universal right of access to justice.
It is public and common knowledge, that, with the exception of the Rome Statute (International Criminal Court), none of the international conventions that categorizes infraction against iuris gentium, establishes penalty of any kind. The system chosen to regulate them consists in that the offenders are prosecuted and punished according to the internal laws of the country after being captured or the offenders are delivered by extradition. It remains clear then, that the "universal principle" does not create an unlimited jurisdiction, but that this "universal competence" is duly limited, circumscribed to only certain offenses which have been defined by the international community. Even when a given local criminal code (internal) does not mention anything about the inclusion of the universal principle, the laws of that country can still accept it through special laws or simply ratify the relevant conventions and, this way, incorporate it in the internal written law with full force and effect.
2. Now that the principle of "universal justice" is defined, it is still necessary to make some considerations concerning Universal Right of Access to Justice "in itself".
And the first thing to point out is that the States do NOT grant these fundamental rights, but they should be the ones to establish and provide appropriate conditions for their completion. This way, the State sanctions itself by the realization of fundamental rights which is the natural right of the individual and which are independent from the State (Enrique Bacigalupo Zapater "Constitutional Principles of Criminal Law", 1999).
From this perspective, the individual's fundamental rights limit the principle of authority of the State and also function besides as a source of obligations for the State itself.
The universal right of access to justice is a fundamental human right, essential in any current democratic and republican system. Its importance and prominence rest in the fact that when human rights are violated or ignored, the right to access justice is the only ideal tool to remedy that situation.
Some authors trace the origin of the current right of access to justice in the free legal assistance (see Haydeé Birgin and Beatriz Kohen, "Access to Justice as a Guarantee of Equality", 2006). Already in 1495 under the reign of Henry VII, the English parliament passed a special law which guaranteed the right to free legal aid, and court costs in civil proceedings are exempted for poverty-stricken people before the Common Law Courts. In the end of the eighteenth century, along with the American and French revolutions, legal assistance began to be considered a political right associated with the ideas of equality and justice.
In generic terms, therefore, the right of access to justice seeks to ensure the access of individuals to courts which administrate justice to appeal for their rights. It also implies further advice or assistance from a qualified independent lawyer, the right to an effective remedy, the incorporation of fair trial standards such as the presumption of innocence, of the non-retroactivity of the law, of legality, and so on. To ensure its ultimate goal, the observance of certain principles are necessary, such as: continuity, (the administration of justice cannot be suspended for any reason, not even in exceptional situations), adaptation (the State must incorporate the changes, reforms and innovations to its laws, such as practical and administrative mechanisms necessary to ensure its effectiveness), speed (which implies that legal deadlines are met on time), free of charge (at least for people without means), equality before the law, by which all persons, without any distinction, must be able to have access to the justice system.
In this sense, if we understood that the administration of justice "...is the principal method which reflects the state's obligation to provide channels and systems for everyone to settle their legal disputes or elucidate their aspirations, and that when someone turns to justice, it is the exercise of a right. An abstention of the interested to do so due to reasons of the system or of his own reasoning is equivalent to a problem of access, to the extent that, due to the inexistency of favorable conditions for him to do so, this could mean a refusal of justice (Thompson, 1999:25)." (Haydeé Birgin and Beatriz Kohen, "Access to Justice as a Guarantee of Equality", 2006).
But it is very important to understand and emphasize that access to justice is a genuine human right and not simply a provision of service, proposed by many people, otherwise this could mean a commercialization of the same, and those in need are considered as a client or user and not as an individual with rights.
The universal right of access to justice can be understood or described then as a real and effective possibility ensuring that everyone, without any distinction or restriction, can have access (it must be guaranteed) to any ordinary or extraordinary courts, and that a local or international court can understand the case and resolves (or try to) the conflict where other fundamental rights of human beings are at stake.
The Universal Declaration of Human Rights (1948) is devoted to all of the points listed. See especially Articles 7, 8, 10 and 11.
In summary, according to my view, there can be no doubt concerning the right to apply criminal law (Argentina in this case), to an act committed abroad and by foreigners, when it can be classified as a crime against humanity and when its author is caught, if fortunately, in the country (or when we had the conditions to do this, as in this case). I see no other way to consider that a case, as described, can be removed from the knowledge and trial by the local courts, when international jurisdictions seem to be impeded to act.
This is the way to guarantee and give full validity to the UNIVERSAL RIGHT OF ACCESS TO JUSTICE. Any victim of a crime described as AGAINST HUMANITY has the right to present his appeal for justice in a court of any country (under the conditions indicated) and to demand an investigation and possibly a penalty for the perpetrators of these crimes. Nations around the world have the obligation to accept these complaints and to make an effort in their resolution, setting aside, as I said already, any interest (political or economic) that can hinder these investigations, which, ultimately, involve the recognition and full validity of the rights and fundamental guarantees of the human being.
Man demands, by natural right, due respect to his person, good social reputation, the possibility to seek the truth by cultivating freely the philosophy or religion that best fits his culture and idiosyncrasies, and, within the boundaries of the civilized moral order and the common good, can express and disseminate views and pursue any profession. And by natural right he is entitled to a legitimate defense of his rights: effective advocacy, equal for all and governed by objective rules of the justice.
This is, therefore, the importance and the hierarchical positioning which, within the fundamental human rights of man, entitles him to the right (universal) of access to justice.
The right of access to justice is, theoretically, defined this way. The answer to questions No. 3 and 4 will be brief, and I shall leave it for the final comments of this presentation.
I intend now to provide a brief practical perspective of this topic from personal experiences.
(To be continued)