CHICAGO: Attorneys for Falun Gong practitioners filed an appeal Monday in the U.S. Supreme Court in a civil lawsuit against former Chinese dictator Jiang Zemin. He is charged with torture, crimes against humanity, and genocide in connection with the persecution of Falun Gong he initiated in July 1999. This case raises fundamental legal issues in U.S. law and in the relationship of U.S. law to international law.

Jiang Sued in Chicago

Jiang Zemin was served with this lawsuit, through his bodyguards, on October 22, 2002, during a visit to Chicago. At the time, Jiang was China's paramount leader, serving simultaneously as the General Secretary of the Chinese Communist Party, the President of the government of China, and the head of China's armed forces. Jiang was succeeded by Hu Jintao as President on March 15, 2003, making Jiang a former head of state.

Neither Jiang Zemin nor any counsel for him has appeared in court to answer the Falun Gong practitioners' suit. In proceedings before the U.S. District Court for the Northern District of Illinois, the U.S. Department of Justice in the guise of a friend of the court requested the dismissal of this case, arguing that heads of state and former heads of state are immune from prosecution.

In September 2003 the District Court dismissed the suit, and the plaintiffs appealed to the 7th Circuit Court of Appeals in Chicago. That court heard oral arguments in May 2004, and then upheld the District Court's dismissal of the case in a decision in September 2004.

Jus Cogens Violations Have a Special Status

The Falun Gong practitioners are asking the Supreme Court to return the case to the District Court in which it began and to ask the District Court to rule on the defendant's responsibility for the acts he is alleged to have perpetrated against Falun Gong.

At issue in the appeal is whether former heads of state such as Jiang Zemin are entitled to claim head-of-state immunity, the protection offered by international law to heads of state against suits brought against them. The brief argues that whether former heads of state are entitled to immunity in some instances, they are not entitled to immunity for actions that are beyond their official authority (ultra vires) or that violate jus cogens standards of international law.

The key argument regards the status of the crimes Jiang is charged with. According to U.S. legal precedents and international law, torture, crimes against humanity and genocide are regarded as violations of jus cogens norms. Such norms are considered to be the foundation for the most basic rules of law, and for civilization itself. Violation of these norms is therefore thought to be qualitatively different than other kinds of criminal conduct.

The Falun Gong brief cites many Circuit Court decisions from other than the 7th Circuit in Chicago that have denied immunity to former heads of state and former officials for such violations. One case cited describes violations of jus cogens as different by virtue of the "depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce." The underlying justification for revoking immunity for officials who violate jus cogens norms of international law is that a sovereign state cannot defend these acts as official, legitimate functions of the state.

According to the Falun Gong brief, "the Seventh Circuit's decision stands alone among the circuits in holding that acts of torture and other jus cogens violations of a former head of state or foreign official can be considered protected and immune acts. The decision is unprecedented. Left undisturbed it will undermine the legislative intent of important congressional legislation."

Sometime in the next few months the Supreme Court will decide whether to hear this case.