The Second Principle: The legitimacy argument

Immunity as a privilege invoked by sovereign nations and their leaders is also based upon the "World Public Order," which comprises not only rules and norms of international law, but also moral values and principles. It is a system which, like all systems, requires something outside and beyond them for legitimacy. (3) The doctrine of inalienable rights serves this function in the United States. Jus Cogens serve the same function in the community of Man. That an assault upon or elimination of the "legitimates" of any system disrupts and destroys in time the system itself is ipso facto self-evident. Therefore any assault on the prohibitions against slavery, genocide, crimes against humanity, as assault upon the world order, cannot be endured by the community of man (see below universal jurisdiction). Those guilty of such acts are the enemy of all, and cannot invoke privileges or benefits therein.

Corollary: Universal Jurisdiction

and based on the above noted obligations erga omnes, all states are obliged to ensure that all other (states and persons) do not violate these norms. As the International Court of Justice notes, violations of these norms constitute violations of obligations owed to all ("obligations erga omnes"). The Barcelona Traction, Light & Power Co. (Belgium v. Spain) 1970 I.C. J. 3, 32; (4) also see, Restatement third, supra, § 702 cmt. o. See also id at § 404.

While US lawsuits against Jiang and other officials are based on the Alien Tort Claim Act and Torture Victim Protection Act, most of our other legal cases are based on the doctrine of universal jurisdiction. It has been tempered considerably by such territorial requirements as a) injury occurred in prosecuting state, b) defendants reside in or visited prosecuting state; c) plaintiffs are citizens of prosecuting state. Lawsuits in China especially may invoke this doctrine, as an alternative basis for jurisdiction.

Third Principle: Immunity is NOT Impunity

This is a principle articulated in international and U.S. law. What follows is based on international law.

It is increasingly clear that, whatever the rule may be for current heads of state, former heads of state no longer have complete immunity from civil and criminal process. The ICJ decision recognized that immunity would not apply to a foreign minister "in respect of acts committed prior or subsequent to his or her period office, as well as in respect of acts committed during that period of office in a private capacity."(para. 61) This follows from the procedural nature of the immunity granted, which cannot apply once the person involved ceases to carry out the functions that require immunity. Immunity will continue to protect those official acts carried out during the person's term in office. The issue then becomes whether the kinds of acts at issue in our cases constitute official acts, for which immunity would continue to apply, or private acts, for which no such immunity would exist. They do not.

Serious human rights abuses committed by a head of state (and other high ranking officials) cannot be official acts and are therefore private or individual acts not entitled to immunity.

These acts constitute not only violations of human rights treaties, but such serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform.(5) This view is shared by all courts that have directly considered the issue. In their decision of March 24, 1999, the British House of Lords decided, 6-1, that ex-Chilean President Pinochet did not have immunity for acts of torture committed while he was in office. Acts of torture could not be official acts because torture is a violation of international law. As Lord Hutton put it: The alleged acts of torture by Senator Pinochet were carried out under colour of his position as head of state, but they cannot be regarded as functions of a head of state under international law when international law expressly prohibits torture as a measure which a state can employ in any circumstances whatsoever and has made it an international crime. (p. 638)

Most recently, the United States Supreme Court in Republic of Austria v Altmann, 124 S.Ct. 2240, supported the above stated principle by citing many cases available relevant to our "Jiang" case, Ex-King Farouk of Egypt v Christiain Dior, 84 Clunet 717, 24 I.L.R. 228, 229 (CA Paris 1957), Ex parte Pinochet Ugarte, 1 App. Cas. 147, 201-202 (1999), Nixon v Fitzgerald, 457 U.S. 731.

Notes:

(3) See Gödel on systems of mathematics, Plato on the world of ideas, Sausure on linguistics.

(4) The International Court of Justice (ICJ) has the status of customary international law and may be cited as support in lawsuits against Jiang and his cohorts.

(5) This is eminently clear in US case law. In an early case affirming the extradition of Marcos Perez Jimenez to Venezuela, its former head of state, the Fifth Circuit held that the acts were done in violation of his position and not in pursuance of it. They are as far from being an act of state as rape which appellant concedes would not be an "Act of State."

Jimenez v. Aristeguieta, 311 F.2d 547, 558 (5th Cir. 1962), cert. denied, 373 U.S. 914 (1963).