Law Professor Argues that Jiang Zemin Should Not Have the Privilege of "Head of State Immunity"
The law is as level as water;
The law is as even as a scale;
The law does not flatter power;
The law does not allow privilege.
Jiang Zemin has committed huge crimes as a result of his attempts to suppress Falun Gong. Is Jiang Zemin entitled to immunity as a former head of state? Let's analyze this question based on international and Chinese laws.
I. Viewed from the perspective of international law
1. According to international codes, people who have committed certain crimes are not entitled to immunity:
People who have committed genocide and crimes against humanity are not entitled to "head of state immunity."
It is regulated in the Rome Statute of International Criminal Court that genocide and crimes against humanity are the most serious crimes that the international community has a stake in.
Article 6 states that, "genocide" is defined as any of the following acts committed with the 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;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
Jiang has violated the first four rules.
Article 7 further defines "crimes against humanity" to mean any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population:
- Deportation or forcible transfer of population;
- Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
- Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
- Enforced disappearance of persons;
- The crime of apartheid;
- Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
The Rome Statute specifically defines "persecution" as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of a State or a political organization followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons with the intention of removing them from the protection of the law for a prolonged period of time.
At least ten of the above mentioned rules apply to Jiang Zemin.
In fact, among the description of crimes listed above, Jiang has seriously violated not just some of the rules but most of the rules, in persecuting Falun Gong,
The Rome Statute also infers that people who have committed the above-mentioned crimes shall be individually responsible and liable for punishment in accordance with this Statute. In Article 25, it regulates that a person shall be criminally responsible and liable for punishment within the jurisdiction of the Court if that person:
- Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
- Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
- For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
- In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
- Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
- Be made in the knowledge of the intention of the group to commit the crime;
- In respect to the crime of genocide, directly and publicly incites others to commit genocide;
Jiang Zemin has committed such crimes as an individual and jointly with others in persecuting Falun Gong practitioners. He issues orders, instructs, lures and coerces others to carry out his policies of suppressing innocent Falun Gong practitioners. Therefore, he should definitely be criminally responsible and liable for punishment for these crimes which is also in accordance with international law.
The Rome Statute regulates that people who commit the crime of genocide and crimes against humanity are not entitled to immunities. It is clearly indicated in Article 27 entitled, "Irrelevance of Official Capacity" that,
This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
According to this article, Jiang Zemin is totally unqualified for immunity.
It is stated in Article 30 "Mental Element" that,
- Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
- For the purposes of this article, a person has intent where:
i) In relation to conduct, that person means to engage in the conduct;
ii) In relation to a consequence, that person either intends to cause that consequence or is aware that it will occur in the ordinary course of events.
For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
It is very obvious that Jiang Zemin "deliberately" and "knowingly" commits crimes in the process of suppression.
2. People who have committed crimes of serious human rights violation are not entitled to immunities:
In order to effectively prevent the increase of human rights violations, an efficient global legal system has been established so that every person including a head of state should be criminally responsible and liable for punishment for the crimes they committed that seriously violate human rights.
It is regulated in Article 9 of the Universal Declaration of Human Rights that, "No one shall be subjected to arbitrary arrest, detention or exile." And in Article 10 that, "Everyone is entitled to full equality and a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him."
The above articles indicate two meanings:
(a) Everybody equally enjoys the right of being tried fairly and openly at an independent and impartial court to determine guilt or innocence.
Jiang Zemin issued orders to arbitrarily arrest innocent people and impose charges on them without any fair and open trial at an independent and impartial court. This is against the articles of Universal Declaration of Human Rights.
(b) If criminally charged with violation against human rights, every person, including heads of state should be tried fairly and openly at an independent and impartial court so that the criminal accusation is handled legally. From this point of view, it is unfair and against the spirit of the Universal Declaration of Human Rights to give head of state immunity to Jiang Zemin, who has violated a majority of the articles of the Universal Declaration of Human Rights.
II. From the perspective of Chinese law
1. It is pointed out in the Preamble of the Constitution that "This Constitution affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the state in legal form; it is the fundamental law of the state and has supreme legal authority. The people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation."
It is regulated in Article 5 of the Constitution that, "The state upholds the uniformity and dignity of the socialist legal system. No law or administrative or local rules and regulations shall contravene the Constitution. All state organs, the armed forces, all political parties and public organizations, and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be looked into. No organization or individual may enjoy the privilege of being above the Constitution and the law."
We can see clearly from this article that Jiang Zemin violated the Constitution and the law. It is illegal to suppress Falun Gong, and such violation should be investigated. According to the Constitution, no state organ, no armed forces, no political parties or public organizations, no individual including Jiang Zemin, the General Party Secretary, state chairman and military chairman may enjoy the privilege of being above the Constitution and the law. Any person who is against the Constitution and the law by persecuting innocents who practice an exercise should be brought to justice and should not enjoy immunity because of a former State position.
2. It is regulated in Article 6 of the Criminal Procedure Law of the People's Republic of China that, "The people's courts, the people's procuratorates and the public security organs must rely on the masses, base themselves on facts and take the law as the criterion. The law applies equally to all citizens and no privilege whatsoever is permissible before the law."
The "all citizens" mentioned here includes Jiang Zemin and alike, who was once head of state. As long as he is sued for criminal crimes, courts have the right to handle it fairly based on the law. He should not be entitled to privileges beyond the law. Otherwise, the regulation that, "The law applies equally to all citizens and no privilege whatsoever is permissible before the law" would be sabotaged.
III. As Viewed from the nature, characteristic, principles, functions and effect of the law
The nature of the law lies in the fact that it represents the will and interest of the broad masses of people. Jiang Zemin acts against the will and interest of people, kills numerous practitioners in his country and persecutes several hundred million people.. Using "head of state immunity" as a shield of impunity actually deprives the law of its nature.
The function of the law lies in its upholding justice over injustice, protecting the good and restraining the bad, keeping social stability and guaranteeing that people can live and work in peace and contentment. In order to safeguard the dignity of the law and have the law function correctly, it is impossible to provide Jiang Zemin with immunity.
From the correct functioning of the law, through judicious trial at court, guilt or innocence should be very clear. Thus, the law plays a positive role in maintaining society. .
The law is as level as water; the law is as even as a scale. Everyone is equal in front of the law. Everyone should abide by the law and be protected equally under the law. Those who violate the law should be sentenced and punished by the law. The law does not flatter power. The law and privileges are two social phenomena that are as incompatible as fire and water. From the principles and characteristics of the law, Jiang Zemin should not be exempted.