Geneva, Switzerland: Speech Given by Argentina's Judge Octavio Aráoz de Lamadrid at a UN Forum on Human Rights in China, Part 3

For Part 1: http://www.clearwisdom.net/html/articles/2010/4/4/115879.html

For Part 2: http://www.clearwisdom.net/html/articles/2010/4/5/115903.html

(Clearwisdom.net)

On Dec. 12^th 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 17^th 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 21^st 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 13^th 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 Three of Judge Octavio Aráoz de Lamadrid's speech:

VI) The reality / What has been Determined:

In order to realize the importance and topicality of this issue, to avoid falling into merely theoretical or abstract speculations, and not lose the necessary contact with reality, I would like to quote a few phrases of the Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment, Manfred Nowak.  He was sent during 20th November to 2^nd December 2005 by the Human Rights Commission which welcomes us here today, to the People's Republic of China. In his report dated March 10, 2006 Manfred Nowak stated, among other points, that "... (acts of torture and other forms of ill-treatment) Though on the decline, particularly in urban areas, the Special Rapporteur believes that torture remains widespread in China. He welcomes the willingness of the Government to acknowledge the pervasiveness of torture in the criminal justice system and the various efforts undertaken in recent years at the central and provincial levels to combat torture and ill-treatment. In the opinion of the Special Rapporteur, these measures have contributed to a steady decline of torture practices over recent years. (...)Many factors contribute to the continuing practice of torture in China. They include rules of evidence that create incentives for interrogators to obtain confessions through torture, the excessive length of time that criminal suspects are held in police custody without judicial control, the absence of a legal culture based on the presumption of innocence (including the absence of an effective right to remain silent), and restricted rights and access of defense counsel. The situation is aggravated by the lack of self-generating and/or self-sustaining social and political institutions including: a free and investigatory press, citizen-based independent human rights monitoring organizations, independent commissions visiting places of detention, and independent, fair and accessible courts and prosecutors. (...)While the basic conditions in the detention facilities seem to be generally satisfactory, the Special Rapporteur was struck by the strictness of prison discipline and a palpable level of fear and self-censorship when talking to detainees.(...)The criminal justice system and its strong focus on admission of culpability, confessions and re-education is particularly disturbing in relation to political crimes and the administrative detention system of "Re-education through Labour". The combination of deprivation of liberty as a sanction for the peaceful exercise of freedom of expression, assembly and religion, with measures of re-education through coercion, humiliation and punishment aimed at admission of guilt and altering the personality of detainees up to the point of breaking their will, constitutes a form of inhuman or degrading treatment or punishment, which is incompatible with the core values of any democratic society based upon a culture of human rights. "

In the course of the investigation that I led lasting nearly four (4) years, each issue reported by the Special Rapporteur Mr. Manfred Nowak was corroborated.

Actually, thanks to the courageous collaboration of many witnesses (whose personal details I will omit, on one hand, to preserve their physical integrity, and, on the other hand, because they are data of a criminal investigation), I was able to determine that the persecution, the illegal detentions, the tortures and physical and psychological punishments which FALUN GONG practitioners experienced, just because they are practitioners, are not isolated events or the results of a good or bad mood of the police officer on duty. It is a systematic and gradual persecution: according to the number of times that a practitioner is detained, the greater the time of confinement and the greater intensity of punishment received (for the "reoffender"!!).

In implementing this program, the Central Government, the provincial and even municipal governments are all involved. When the Central Government finds that the number of practitioners in Beijing, originating from a particular province, exceeds a number X, the governor of that province is made responsible, and the same applies to the mayors at the municipal level.

Witnesses have told me circumstantial and coherent details concerning the nature of the arrests and suffering which they have endured. Some of them are:

a) Forced labor in detention centers (generally without remuneration of any kind). The detainee must meet an objective of productivity; they worked from 4 or 5 am, at times 11 or 12 at night or even more hours if the goal was not reached. Some tasks are: assemble plastic flowers; packing of chopsticks used for eating Chinese food, cleaning toilets in the prison for men (this work is reserved for women) with hands and using extremely abrasive products; assemble cardboard boxes, and -in great numbers- work the land in agriculture tasks without any tools, using only their hands.

b) Torture:

-Stand in the sun during high temperatures for many hours without water or food;

-remain for several days without sleep, being subjected to senseless interrogations;

-remain on their knees with hands tied behind their backs for hours, until they faint;

-remain upright with a leg lifted up and hands handcuffed under the same leg; metal locks are put on the feet to increase weight;

-injections of unknown contents/ drugs;

-indiscriminate use of electric prods;

-hands of victims are tied in the back and they are then hung by their wrists, which after a length of time causes the loss of strength and sensation in their hands;

-sitting on the floor with their hands embracing their feet; they must remain for long hours in this fixed position and are beaten if they move;

-the monitoring is implemented by the prison service and by prisoners sentenced for serious crimes, who are free to beat practitioners; there is also an economic incentive (1100 renminbi approx.) for those who succeed in making a practitioner renounce his faith;

-forced introduction of food by nasal-gastric tubes (which due to the violence they often end up in the lungs), for those who realize hunger strike as protest (a recurring method of protest used by practitioners);

-beat with thick wires body areas previously bruised by other blows, until bleeding;

-prick whole body with communally used needles;

-immersion of the victim's face in a bucket of water several times during the entire night;

-placing the individual on high platforms where they are grabbed by the hair, let loose and, while staggering, others prick his or her body with long needles;

-with hand and foot tied, a hot sauce (a kind of Japanese wasabi or mustard) is introduced through the mouth, nose, and eyes during the entire night,

-victims are forced to drink water from dirty toilets, while others are urinating and, at the same time, kicked and beaten;

-in places where it is very hot, victims are tied up between two rolled up mattresses; as the victim sweats a lot under this condition, plenty of water and food are given in order to produce bodily functions (to urinate and to defecate) while strapped inside the mattresses;

-beat people in the calves with iron rods (those bruises take up to 3 months to heal);

-the police step on the toes of victims with winter boots and beat their heels with the boots;

-in very cold areas, in order to keep them from sleeping, they are doused with cold water;

-many detention centers have no beds to sleep on, there is only a cement platform, 2m by 15m, and all of them have to sleep lying on their side in alternating position (head of one to the feet of another);

-feet are pricked with electric needles;

c) All Kinds of Threats: for example, the management of a women's detention center threatened to leave the female practitioners to be raped and infected with venereal disease.

d) Brainwashing: "re-education" through labor is a euphemism that conceals forced labor, and during very long sessions practitioners are forced to stay awake with their eyes open to watch video projections where they are "instructed" about their "mistake" for practicing their religion and they are induced to renounce their belief. They are not allowed to sleep, are prohibited from any type of communication, must look downwards at the ground all day in front of other detainees, they are not allowed to bathe. Other methods include isolating the victim completely, prohibiting them from speaking with their families. Talking and writing are also forbidden; they are injected with unknown substances and forced to ingest unknown drugs, they must realize strenuous physical exercise, forced to go through medical checkups, to run in the snow at nights without rest or food, not allow to drink fluids for two days at times, are forbidden to go to the toilet for long periods, only allowed to sleep two to three hours per day; constant insults and electroshock treatments in mental institutions are carried out in order that they lose clarity and memory.

e) Detentions: arrests are made without any reason, directly and in police stations, without judicial intervention and without any possibility of defense. The "administrative" arrests and convictions, not judicial, can last up to 3 years.

A witness reported that his first wife, detained for 3 years for practicing FALUN GONG, died in the detention center. This was notified by the staff of the 610 Office. The witness and the relatives were threatened and abused before they were allowed to see the body which had numerous injuries all over (collapsed skull, burns, teeth missing etc.). The death certificate stated "suicide". Other similar stories reported that the bodies of the victims were completely emptied of inner organs.

In a few cases, practitioners claimed to have received a judicial sentence (always between 3 and 8 years in prison, there are cases of over 14 years); they invariably reported that during the trial they were not heard, could not present evidence, witnesses, nor were witnesses examined. The defense attorney, the few private lawyers who dared to defend FALUN GONG practitioners, could only ask for a lighter sentence. The rest of the detainees had legal aid lawyers, but they did not intervene. As a mere formality, they were only allowed to appeal to shorten the length of the sentence (which actually never happens).

f) Organ Transplantation: The complaints in this area are numerous, the suspicion is very strong, especially due to the physical examinations and blood tests that are made on the practitioners and the references to "disappearances" in detention centers, but (as it is logical to understand) there are no witnesses or conclusive evidences. However, there are some really some truly indicative research (see in this connection the work of the Canadian attorney, a Human Rights specialist, Dr David Matas, and research by the journalist Philip Bruno for the publications "Le Monde" of France and "Clarin" of Argentina.)

In fact, all this kind of "deployment" by the authorities of the People's Republic of China is to make the practitioners renounce their spiritual belief, for which they must write a document written in their own handwriting, as often as necessary until the officials are convinced of the "rehabilitation" of the practitioner. I know of many cases where this method produced results.

And following these concrete references, it should be noted that, for several years, the European Parliament has been warning about the conduct of the authorities of the PRC, especially of its system of justice, illegal detentions, and for the widespread of torture in its legal system, in short, by the total lack of respect for fundamental human rights for which it has repeatedly undertaken to respect.

On 21 January 2010, this Parliament issued a new resolution condemning human rights violations in China, emphasizing the case of Liu Xiaobao, lawyer and scholar of Chinese origin, a prominent human rights defender and persecuted by the Chinese Communist Party. In this resolution, we see can see reflected, among other things, the "practices" just mentioned.

-that only a few days ago, a Chinese official acknowledged, for the first time, that Gao Zhiseng, a Christian human rights activist and candidate for the Nobel Peace Prize, has disappeared,

-that in December 2009, other cases of human rights violations were registered in China, such as harassment to members of the Human Rights Forum of Guizhou to stop them from carrying out the planned activities to celebrate the Human Rights Day, and the beating and mistreatment inflicted, during his detention, upon Choghuai Qi, a reporter from Shandong and former head of the office of Fazhi Morning Post,

-that, before 1^st of October, the country's 60th anniversary, the Chinese authorities intensified surveillance, harassment and imprisonment of activists to avoid that issues related to human rights are raised. According to Amnesty International, in this occasion, several hundred activists and dissidents were submitted to various types of surveillance or house arrests,

-that on 13 January 2010, Google announced its intention to stop cooperating with Internet censorship in China,

-that the results of the EU-China human rights dialogue established in 2000 are so far insignificant,

-expresses solidarity with the initiatives for democratic reforms and protection of human rights,

-strongly condemns the judicial harassment;

-urges the PRC to guarantee respect for human rights and fundamental freedoms and calls for the ratification of The International Covenant on Civil and Political Rights;

-regrets that China, in the universal periodic review process in 2009, has rejected all recommendations made by Member States of the United Nations related to the freedom of expression and freedom of association, the independence of the judiciary power, the guarantees of the legal profession, the protection of human rights defenders, the rights of ethnic minorities, the abolition of the death penalty, the abolition of the reeducation through labor, the prohibition of torture, the freedom of the media and effective remedies against discrimination;

-stresses that the Chinese government published its first National Action Plan on Human Rights (2009-2010) in April 2009, which was aimed to improve protection of the rights of citizens, provides a safeguard against arbitrary detention, prohibits the extraction of confessions by torture and ensures fair and open trials;

-stresses that human rights in China remains an issue that causes serious concern,

-considers 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;

With all this, I think I have been sufficiently instructive on the matter.

VII) Conclusions:

Turning now to the final chapter of this presentation, two questions we raised before still need to be answered and which will reinforce the idea and objective of these talks to promote recognition and protection of human rights.

We ask how is it possible to investigate crimes committed in another country when there is no possibility to request information from that country, since the crimes are committed or directed by the government itself.

The answer is international cooperation and solidarity with the victims who ask to be heard and attend to their appeals for justice.

Cooperation between nations, between their governments, particularly the judiciary powers; also between administrative officials, without bureaucratic impediments that hinder the sharing of information and other actions in different jurisdictions (interviews, inspections, etc.).

The judicial systems always impose constraints to meet these objectives, but with goodwill and readiness, there should not be any major inconvenience.

In my case which can serve as an example, I had the opportunity to travel to the United States to receive personally the statements of several refugees residing in that country. I did it in the Argentine Consulate, but the help and cooperation of the American Embassy officials in Argentina, the FBI and the Justice Department were excellent. The only criticism I have regards the fact that it would have been important to have the support of a legal medical service that could certify the injuries and sequels resulting from tortures, which some of the victims exhibited. Although, in some cases, they can be seen at a glance, legally, it is important that they are certified by a medical professional from an official source.

In other occasions (and for other cases), I have conducted video conferences with Spain, which are very simple and require very few formalities.

As one can see, there are many ways to cooperate, but they always depend on the goodwill of the parties involved, which is not always easy to achieve. We saw the references made by the European Parliament on the attitude of the PRC on this issue.

And to this, I add an event that happened recently in Argentina.

On December 17^th 2009, as Judge in charge of the investigation, I ordered the investigatory questioning of Mr. LUO GAN and Jiang Zemin and issued the relevant international arrest warrants for extradition. To do this, I summarized the nearly 4 years of investigation, and assessed the collected evidence in a resolution of about 200 pages.

On December 29^th the same year, I resigned my position as Judge.

On January 8 [this year], before the trip the President of my country intended on the 20^th of that month to this Asian giant, the Embassy of the People's Republic of China in Argentina sent a note to the Chancellor (also to the Hon. Federal Court of Appeals, the immediate superior of the Court under my charge) intimidating the Government of Argentina to intervene directly with the judiciary and to force judges to CLOSE every case that was opened in Argentina against the Chinese government,

On January 11^th 2010, the judge who was temporarily in charge of the court, in just five lines, lifted the arrest warrant. And only 7 days ago the file was closed by another judge...

In any case, the President did not make the trip.

I will not comment any further on this matter, except to mention what I said concerning the necessity that the governments should not superimpose their economic or political interests over the safeguarding of fundamental human rights.

I would only like to add that as one cannot judge the well being of a nation without considering its people, one also cannot speak about the general welfare of nations, if one of them is ill. It is necessary that the "world authority" ("Pacem in Terris" Encyclical Letter of Pope John XXIII, of 11 April 1963), which the United Nations Organization represents, intensifies its efforts to ensure that human rights are universally accepted, observed and kept intact.

The mission of this global authority, reflected in the Preamble of the Universal Declaration of Human Rights, is the recognition and effective observance of all rights and all freedoms recognized in the Declaration, and for this, it should examine and resolve problems related to the universal common good in the economic, social, political, cultural and religious nature, as these problems, due to their magnitude and gravity,  present superior difficulties that cannot be resolved satisfactorily by national governments individually.

The United Nations, in the subject mentioned here, should strengthen the ties of cooperation and coordination among the nations to ensure effective achievement of the objectives proposed, in particular, eradicate all human rights violations.

The last question we raised is on the effectiveness of a criminal process implemented by the local judicial authority of a country (in my case, Argentina) against the authorities of a sovereign republic (China).  This depends exclusively on international cooperation and an unanimous decision to pursue human rights violations.

It is necessary that the accused officials can be arrested in any country, and these countries must understand that diplomatic immunity is not absolute, that it has the limits which were already discussed. Then, with the help of Interpol, the accused should be extradited to the requesting country and be brought to trial there by applying Argentine laws and penalties (we have already made reference to this aspect).

However, it would be much more effective if these processes can always be implemented by the International Criminal Court, which is the one with the authority and powers necessary for this.

However, as in the case mentioned, the competence of this body is proscribed because the PRC has not ratified the Rome Statute.

It is clear that it would be necessary to reform the Statute in order to achieve the objective, but let's not lose sight of what Article 14 provides

"A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed, requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged within the commission of such crimes...".

And Article 15 authorizes the Prosecutor to initiate an investigation.

Based on these rules and the principles expressed throughout this presentation, I believe it may be useful to review the policy framework of the International Criminal Court, in the sense to enable its competence for cases such as the one referred here, where systematic violations of human rights by a Sovereign Government that has not ratified the Statute are reported.

What a local court can do cannot compare with the efficiency and force of a trial in this Court.

I hope, with this, to have made a small contribution on this issue which is so delicate but also so important.

I thank you for your kind attention.

Octavio Aráoz de Lamadrid

Geneva, 17th of March, 2010