Speech Given by Argentina's Judge Octavio Aráoz de Lamadrid at Geneva UN Forum on Human Rights in China, Part 1

This is the first of a three part series presenting the full text of the speech given by Argentina's Judge Octavio Aráoz de Lamadrid at UN Forum on Human Rights in China. The speech was presented in Geneva, Switzerland in March 2010

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.

Here is Part One of Judge Octavio Aráoz de Lamadrid's speech:

CONFERENCE OF Dr. Octavio Aráoz de Lamadrid (Argentina)

UNITED NATIONS HUMAN RIGHTS COUNCIL

Universal right of access to justice (Articles 8, 10 and consistent of the Universal Declaration of Human Rights adopted and proclaimed by Resolution 217 A-III- of the General Assembly of the United Nations, 10th of December 1948).

A Presentation by Dr. Octavio Araoz de Lamadrid (Argentina)

At the 13th Session of the Human Rights Council, Geneva, Switzerland (1st to 26th of March, 2010)

Firstly, I would like to clarify that this paper is NOT, under any circumstance, a declaration in favour of a religious group, but rather a technical study on a current problem, supplemented with some information from my personal experiences.

It is also neither a political argument nor a critique with an ideological content. Although my assessments originate from a real case with two nations as protagonists, they can be applied to any country worldwide. Human rights are for everyone, anywhere in the world.

II) Personal Presentation

My name is Octavio Aráoz de Lamadrid. I was born in Argentina 40 years ago. I have been a criminal lawyer for over 15 years. I did my undergraduate studies at the Catholic University of Argentina and my graduate work at the same institute. I specialized in Criminal Law at the Austral University of Argentina and completed a Master of Criminal Law and Criminal Science at the Universities of Barcelona and Pompeu Fabra in Spain.

I served for over 20 years in the judicial system of my country, 12 of them as an official of the National Chamber of Criminal Appeals in Cassation (court of appeal with territorial jurisdiction in the whole country).

On September 5th 2005, I was elected by the Judicial Council of the Nation to become a federal judge in charge of one of the 12 federal courts with jurisdiction in the federal capital of the Republic (government headquarters), a position I held until my resignation, which occurred on December 29 last year (2009).

As a federal judge, I had the opportunity to intervene in different processes where the recognition of fundamental rights, particularly the right to identification (suppression or replacement of identity and appropriation of newborns) was at stake, but all of them were occurrences dated many years ago during the military dictatorship which ruled the country between 1976 and 1983.

This phenomenon of processing trials for situations that happened, in an average of 30 years ago, is the result of the evolution of the legal doctrine of the Supreme Court of Argentina. This occurred in late 1995, when a crime was qualified as a crime of genocide ".....the fact that they had killed seventy-five Jews who were not prisoners of war, not acquitted, convicted or at the disposition of the German military court, or available to the German police, among a group of three hundred and thirty-five killed..." due to the massacre occurred on March 24, 1944 during the Second World War in the Ardeatine Caves on the outskirts of Rome, Italy. Also as genocide was recognized as a crime against humanity, therefore it can never lose validity, as stated in the principles of the law of the people (ius cogens) of International Law, thus making possible the extradition of Nazi war criminal and Captain of the SS, Erich Priebke to face trial in Italy (he was convicted). (CSJN Failure of 02.11.1995 on the file "Priebke, Erich s / extradition request", No. 16.063/94)

This decision, along with others from the past, which dedicate in the inapplicability of all norms of internal laws that prevent or hinder the trials for human rights violations (for example amnesty rules and expiration dates), have enabled the investigation, prosecution and conviction, as I said before, of many authors of such type of crimes for events occurred 30 years ago.

Nevertheless, the opportunity for a court of law, at least in my country, to intervene in current events, events that are occurring presently, is either usual or common. I refer, of course, to the domestic or local courts, not international tribunals.

In fact, it is unusual that the judicial power, being a power essentially "historical" because it resolves or acts in relation to events that have already occurred, intervenes in trials of human rights violations produced recently and also tries to prevent that such violations continue in the future.

In my particular case, on December 13th 2005, I received in the Federal Court which I presided, a formal complaint, presented by Ms. Liwei Fu of Chinese descent, who resides in Argentina and is the president of the of the local FALUN DAFA Association, against Mr. 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), an agency created by the president at that time, JIANG ZEMIN with the specific purpose to control and eradicate the practice of Falun Gong.

The plaintiff asked for the detention of Mr. LUO GAN, according to article 6, point 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (resolution 39/46 dated December 10th of 1984)

The plaintiff explained in an explicit manner the characteristics and the spiritual and religious principles of the practice of FALUN GONG or FALUN DAFA, as well as the growth or popularity of this practice since 1992 and the large number of practitioners (estimated at 100 million individuals). Also described in detail and documented were the variety of acts of persecution, arrests without warrants, torture, unlawful deprivation of liberty, forced relocation and promotion of hatred among the Chinese people toward the practice of this religious discipline.

There were also descriptions of the various effects resulting from a systematic persecution such as threats, expropriation of property and illegal forced imprisonment (without any legal protection) in labor camps under a slave system, in mental hospitals and prisons, and the execution of physical torture (ingestion of acids, burns of all kinds, pulling out of fingernails, electric shocks, repeated or gang rape, forced abortion, etc..) and psychological torture (for ex, through techniques of "brainwashing", subjecting the victims for many hours daily of "reeducation" videos or depriving them of sleep for days), disappearances, cremation, etc.. ..

The facts that were reported (enough to initiate the lawsuit) included reports from Amnesty International, the United Nations Human Rights Commission of 2001, and the Annual Report of International Religious Freedom from the State Department of the United States, also from 2001 (which confirmed the deaths of over 200 practitioners as a result of torture inflicted during their arrest and detention).

Finally it was asserted that "... According to the data used by the Coalition to Investigate the Persecution of Falun Gong, founded on January 20th 2003 in the United States, and which is also unofficially used by the Chinese Government itself, the death toll due to horrific torture could go up to nearly 50,000 persons ... ".

As to the applicable law, describing the facts as crimes of genocide and torture, the plaintiff presented an analysis of the international legislations such as the Universal Declaration of Human Rights from the UN General Assembly on December 11th, 1946, the Convention for the Prevention and Punishment of Genocide of December 9th, 1948, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10th 1984, and as well as the Chinese law.

Considering that China would not prosecute those responsible for violations of legal rights recognized by the international legislations, the plaintiff considered the possibility to prosecute through the International Criminal Court, however, according to the principle of retroactivity, the crimes fall outside the scope of the International Criminal Court, because they have been produced prior to July 2002, and also China has not accepted its jurisdiction. Also another consideration was the possibility to present the complaint before the Security Council of the United Nations, but this would not lead to any result due to the veto power of the People's Republic of China in that organization.

Ultimately the plaintiff concluded "... that if universal jurisdiction is not admitted, we would be faced by what the international community seeks to avoid and has avoided at all times, which is impunity.".

It is worth recalling here, that while the People's Republic of China was one of the participating Member States on the deliberations and even on the final drafting of the Statute of the ICC, it never approved or ratified the content. That is why under the wording of the treaty, China is outside the jurisdiction of that organization.

III) The Approach to the Subject / The Guiding Hypothesis:

Furthermore, due to the bureaucracy of the procedure within the internal federal law, the arrest of Mr. LUO GAN could not be realized in the territory of Argentina.

The case raised a number of issues of great importance and significance, both for domestic law and international law, namely:

1. Is it possible to prosecute persons who enjoy diplomatic immunity or immunity from jurisdiction for crimes against humanity?

2. Is it possible and valid to use the universal right of access to justice to initiate in Argentina (or any other country) an investigation for acts committed by a Sovereign State apparatus (in this case China ) within its own territory?

3. How is it possible to investigate offenses committed in another country when there is not any possibility to request information from that same country?

4. What is the effectiveness of that process?

The generic answer to these questions is enclosed in the Item 3 of the Program of this 13th Session of the Human Rights Council, which brought us here today: 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. Otherwise, the rights and guarantees recognized universally by all human beings are simply transformed into mere statements, devoid of content and effectiveness: SS. Pope John XXIII said: "... when dealing with this subject, when it has to do with human dignity in general and, in particular, the life of an individual, to which nothing can outdo, it must be placed in the first place..." (Encyclical Letter "Mater et Magistra, 15 May 1961).

IV) Freedom of Belief:

Without disregarding the generic statement above, and it being particularly present in reality, I intend to give a concrete answer to each of the questions raised.

But first it is necessary to make it clear that to carry out the investigation, I abstracted myself, isolated myself and ignored completely any consideration concerning the "content" of FALUN GONG.

I voluntarily omitted any reference to the belief, practice or the philosophy of the movement. And this is the way any judge should act, who must intervene in a process of this kind. In order to evaluate if the prosecution is fair or not, I should not assess nor express whether or not I share the postulates of FALUN GONG, or whether they seem to me to be better or worse than others.

Everyone has the right to choose and practice their religion freely and not suffer from interferences from the powers of the State.

Bearing this fundamental postulate in mind, and it has been determined sufficiently that the practice of FALUN GONG does not show any evidence of any violent activity or conflict with the most elementary rules of coexistence or is contrary to the dignity of the human being, the judicial investigation should be directed at the evidences of the persecution and the crimes reported and, as I stated before, not at any reference or assessment of the religious practice.

The peaceful nature of FALUN GONG, which is worth mentioning, is easy to establish when, firstly, one comes into contact or observes their habitual practices and, secondly, when one becomes aware that the Government of the People's Republic of China bases its decision to ban and persecute practitioners of this discipline with merely an abstract affirmation and without any explanation that it has to do with a "heretical cult" (i.e. it is "sacrilegious", which errs in the subject of "faith"). In this regard, it is highly illustrative to read Article 1 of the Chinese Constitution (04/12/1982) which states that "The People's Republic of China is a socialist state under the people's democratic dictatorship ... The socialist system is the basic system of the Republic ... ". From this, one can deduce that the "religion" of the state, as defined in the preamble of that document is the "socialist ideology of Marx and Lenin" and, therefore, in relation to this, FALUN GONG is considered a heresy.

This is absolutely unacceptable as the justification of a state policy.

For which reason, as I said, I set aside any consideration about FALUN GONG itself and concentrated on giving answers to the aforementioned questions.

... to be continued