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Global justice

October 23, 2000

The Li Peng lawsuit & universal jurisdiction over violations of rights

 

 

A growing number of courageous victims, activists and lawyers have launched a series of lawsuits that are pressing courts to uphold international human rights standards. The case against Li Peng filed in US District Court is a recent addition to this campaign for international justice. Drawing on materials from the Center for Constitutional Rights and Human Rights Watch, Human Rights in China explains the background behind this suit and examines other avenues for holding human rights abusers accountable for their crimes.

 

 

 

 

 


 

 

On August 31, 2000, Li Peng, the former Chinese Premier and current chairman of the National People's Congress - was served with notice of a civil lawsuit filed by victims of human rights violations committed during the 1989 Tiananmen protests. Li Peng, who declared martial law on May 20, 1989, not only failed to halt the massacre of unarmed civilians by the People's Liberation Army and the People's Armed Police on June 3 and after, but also congratulated troops for successfully enforcing his martial law order.

Plaintiffs in the case include Zhou Fengsuo, Liu Gang, Xiong Yan, and Wang Dan - four of the 21 students on the "Most Wanted" list put out in June 1989 by the Ministry of Public Security, which is under direct authority of the State Council headed at the time by Li Peng. Following their capture by police, all four individuals were imprisoned for their role in the Tiananmen demonstrations. Another plaintiff in the case, Zhang Liming, lost his sister who was shot and killed by Chinese troops on the night of June 3.

Human Rights in China (HRIC) initiated the lawsuit against Li Peng after the Chinese government rejected repeated appeals by June Fourth victims for an examination of the Beijing bloodshed. Over the last decade, June Fourth victims and relatives, led by Ding Zilin and the Tiananmen Mothers, have compiled a list of 155 known dead and 65 wounded. They have also collected 27 testimonies that describe how individuals were killed or injured during the 1989 massacre. Last year, this group formally called upon China's Supreme People's Procuratorate to initiate a criminal investigation into the massacre and to prosecute all responsible parties. To date there has been no response to this request.

 

 

 

 

 

 

PROCESS AND PROGRESS

 

Seeking meaningful alternatives, HRIC decided to file a civil lawsuit in the United States. In addition to collecting evidence that establishes Li Peng's responsibility in the 1989 violations, HRIC found the plaintiffs in the case and approached the Center for Constitutional Rights (CCR) to act as lead counsel.

In the Li Peng lawsuit "service of process," or notice to a defendant that legal proceedings have been initiated against him, was carried out in accordance with a court order issued by Judge Casey of the US District Court for the Southern District of New York. The order, which allowed for alternative means to serving Li Peng personally, stated:

 

 

 

Service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant Li Peng during his stay in New York. Said employee is to forthwith provide said defendant with the said copy of the summons and complaint during defendant's stay in New York.

On the morning of August 31, 2000, a process server delivered the relevant legal documents to Robert Eckert, a member of the US State Department security detail guarding Li Peng at the Waldorf Astoria Towers. Li Peng was staying at the Waldorf Astoria while in New York to attend an Inter-Parliamentary Union Conference. Accordingly, Li Peng was duly summoned and legally required to file an answer to the complaint within 20 days. He did not do so.

On October 13, 2000, Judge William H. Pauley III, who is presiding over the case, convened a pretrial conference to discuss a range of issues including settlement and trial. Bill Goodman, the legal director of CCR, presented arguments for the plaintiffs. No representative for Li Peng was present. However, Assistant US Attorney David Jones appeared at the proceedings to represent the US State Department's position. The State Department challenged the service of process in the Li Peng case and argued that its Security Detail was not responsible for serving process upon those whom it protects. The US Attorney's Office further claimed that neither the State Department nor Eckert were aware of the court order instructing them to deliver the papers to Li Peng. This claim directly contradicts statements by the process server and several witnesses who maintain that the court order was presented to Eckert and that he agreed to accept the papers only after seeing and reading the order.

Citing the gravity of the case, Judge Pauley decided to permit additional submissions on the issue of service from both sides, including a deposition of Eckert by the plaintiffs' counsel. The extended deadline for such supplementary information is January 16, 2001, with response to the new discovery documents due January 24. Judge Pauley concluded the pretrial conference by stating that the hurdles regarding service must be cleared before there is any further scheduling for the case.

The Chinese government has made no legal response in the proceedings. However, it has publicly voiced its opposition. Vice-Secretary of the National People's Congress Standing Committee L□Congmin has said, "We absolutely have no need to pay them any attention; we should scorn them." Chinese Foreign Ministry spokesman Sun Yuxi characterized the lawsuit as "a political farce fabricated by a handful of anti-China elements in the US out of despicable political motives." Sun reiterated these sentiments at a September 26 press briefing, and they remain the government’s official position on the case.

If Li Peng fails to respond in court, the plaintiffs will file for a default judgment, claiming that the defendant has defaulted based on the absence of responsive papers. If a default judgment is granted by the court, the defendant's legal liability for the charges will be established. At that point, the plaintiffs would request a jury trial to determine the amount of monetary compensation. Even in the absence of any monetary award, a jury trial would initiate a number of positive events. It would facilitate an examination of the 1989 massacre by an independent court, allow the Tiananmen victims to testify about their suffering, affirm that a wrong was committed against them and establish that the law does not countenance human rights abuses. In this regard, the Li Peng lawsuit can play a crucial role in reaffirming the legitimacy of law and justice. The lawsuit also helps focus important attention on the human rights abuses in China, and contributes to the long-term goal of creating a world where human rights abusers no longer enjoy impunity.

 

THE SUIT'S LEGAL BASIS

 

The Li Peng lawsuit is based on two federal statutes: the Torture Victims Protection Act (TVPA) and the Alien Tort Claims Act (ATCA). Both statutes allow cases to be brought in US federal court for grave violations of international law, no matter where they were committed.

Enacted in 1789, the Alien Tort Claims Act was drafted to address violations of the "law of nations," which in the late 18th century concerned piracy, diplomacy and slave-trading. After remaining unused for nearly 200 years, the ATCA was unearthed by lawyers at the CCR and has since been used in cases involving serious human rights abuses. The human rights abuse must constitute a gross violation of international law recognized by US courts. Such abuses include genocide, summary execution, torture, disappearance, arbitrary detention and cruel, inhuman or degrading treatment.

A lawsuit based upon the ATCA must be filed by the victim, a close family member or the legal representative of a deceased victim. Plaintiffs can demand money damages to compensate for death, physical injuries, emotional trauma, lost income and related expenses like medical care and property damage. They can also seek punitive damages, designed to punish the violator and prevent such violations from occurring in the future. If plaintiffs risk government reprisal in the form of threats to themselves or family members for taking up a suit, it is possible to file the case anonymously.

The human rights abuse in question must be committed, ordered or condoned by a government official. Sometimes, the defendant may be an organization, such as a paramilitary death squad, or a business corporation. Additionally, legal procedure requires that the defendant be physically present in the United States, at least temporarily, in order to be served with legal papers.

In certain circumstances, defendants may enjoy immunity from legal proceedings. If the defendant is a foreign official in the United States for a diplomatic purpose, s/he may have "diplomatic immunity." Current leaders enjoy "head of state immunity," which provides absolute protection from liability in US courts. However, suits against former heads of state, like former Philippine dictator Ferdinand Marcos, have been accepted by US courts. An individual may be sued if s/he personally committed the human rights violations against the victim or the victim's relatives, or if s/he had command or supervisory responsibility over the violation. Thus, if the defendant knew or should have known the abuses were occurring and failed to prevent or punish the perpetrators, s/he can be held liable.

 

 

 

 

ORIGINS OF SUCH SUITS

 

The first time the ATCA was used by victims of human rights violations was in the 1980 case of Filártiga v. Peña-Irala. In this case, the Paraguayan family of 17-year-old Joel Filártiga , who was tortured to death by police officer Americo Norberto Peña-Irala, successfully sued the perpetrator who was found living in Brooklyn, New York. In this landmark decision, the court decreed, "the torturer has become like the pirate and slave trader before him hostis humanis generis, an enemy of all mankind."

Following the Filártiga case, a series of ATCA suits have emerged: in the Suarez-Mason cases an Argentine general was ordered to pay almost $90 million for murder, torture and disappearance; in the Marcos cases thousands of victims who suffered human rights abuses during his regime were awarded over $770 million in compensatory damages and $1.2 billion in punitive damages; in Paul v. Avril (1994) six Haitians sued the former dictator of Haiti for torture, winning a $41 million judgment; and in Abebe-Jiri v. Negewo (1993) three women tortured in Ethiopia sued their torturer after recognizing him in an Atlanta hotel, winning a $1.5 million judgment, which was ultimately upheld by the US Supreme Court. Most recently, two cases were filed against Radovan Karadzic, the former Bosnian Serb leader, for his role in the early 1990s campaign of rape, torture and genocide in Bosnia-Herzegovina. In August 2000, victims in the case of Kadic v. Karadzic were awarded $745 million in damages. One month later, victims in Doe v. Karadzic were awarded $4.5 billion in damages.

Most of the defendants in these lawsuits have fled the United States, and the collection of monetary damages has been difficult, if not impossible. The cases against Ferdinand Marcos are among the few that have seen some success in claiming judgments, simply because the Marcos estate holds assets in the United States. After a federal court in Hawaii issued its judgment totaling almost $2 billion in damages, the plaintiffs settled with the Marcos estate and the Philippine government for $161 million. However, payment has been blocked by a judge in the Philippines. Despite such setbacks, plaintiffs in these cases consider a judgment upholding their charges against the accused to be a major victory for justice and a vindication of their struggles. At the very least, such decisions prevent human rights abusers from traveling to the United States with impunity. Finally, these ground-breaking cases advance innovative interpretations of the law and consequently are vital in shaping and strengthening mechanisms that could hold human rights violators accountable for their crimes.

 

 

 

 

 

 

UNIVERSAL JURISDICTION

 

The Li Peng lawsuit is part of a global movement to seek accountability for human rights violations based on universal jurisdiction -- the principle that all nations may prosecute crimes of grave international concern, no matter where the acts were committed, and regardless of the nationality of the perpetrators or their victims.

The subject matter for universal jurisdiction generally includes the most serious of international crimes. Some international treaties, like the UN Convention Against Torture and the Geneva Conventions, specifically outline certain crimes that are covered by universal jurisdiction. Additionally, customary international law specifies that genocide and crimes against humanity are crimes actionable under the principle of universal jurisdiction.

Prosecution based on universal jurisdiction, however, is dependent on the laws of the prosecuting state. In francophone Africa, Egypt and other countries that share the civil law tradition, treaties, and in some cases, customary international law, are automatically part of national law, without the enactment of implementing legislation. In the same vein, many Latin American and European countries have laws that refer generally to treaties ratified by the state, which in principle, makes the relevant crimes punishable in domestic courts, regardless of the accused's nationality or where the crime was committed This model is followed in Austria, Bolivia, Brazil, Costa Rica, Cyprus, the Czech Republic, Denmark, Ecuador, El Salvador, Ethiopia, France, Georgia, Germany, Guatemala, Honduras, Paraguay, Peru, Russia, Spain, Sri Lanka, Switzerland, and Uruguay, among others.

In many other countries, treaties must be incorporated into domestic law before they become operable. For example, the United Kingdom promulgated the Criminal Justice Act to implement the Convention Against Torture, which gave Britain the authority to arrest General Augusto Pinochet in 1998 for crimes committed in Chile during his dictatorship from 1973-1990. Australia, Canada, Belgium, France, Malta, the Netherlands, New Zealand, and the United States, among others, have similar laws regarding torture. However, states often ratify treaties without adopting the necessary implementing legislation.

Some countries like Belgium, Costa Rica, Germany, Nicaragua, and Spain specifically grant their courts competence to try cases of genocide committed abroad. A few countries have laws specifically permitting the prosecution of crimes against humanity abroad. These include Belgium, France, Israel, and Venezuela. Some Scandinavian countries, like Norway and Sweden, criminalize all felonies committed abroad, as long as the offender is in the prosecuting state. Generally, the need for the defendant to be in the prosecuting state is dependent on the particular laws of each country, the purpose of the prosecution and the possibility of an eventual extradition.

The agent of prosecution in universal jurisdiction cases varies from state to state. In countries that share the Anglo-American common law tradition, only a public prosecutor can initiate a criminal investigation, and the prosecutor has wide discretion in deciding whether or not to prosecute. However, in many civil law countries, the victim has the right to file a complaint directly before an investigating judge, who must open an investigation. In some cases, the victim or a relative becomes a party in the criminal proceedings and may receive compensatory damages.

The Spanish case against Pinochet was filed using the "popular action," a procedural device that permits Spanish citizens to file private criminal actions in certain situations of public interest, regardless of whether they suffered an injury. Recently, some Latin American countries like Guatemala and Costa Rica have allowed victims to act as "adjunct prosecutors," formulating charges, appealing decisions and providing evidence. For certain crimes, NGOs, and associations have been recognized as "adjunct prosecutors" if they have a direct interest in the case.

Recent cases brought forward on the basis of universal jurisdiction include the February 2000 indictment of former Chadian dictator Hissène Habréin a Senegalese court on torture charges; the July 1999 arrest of a Mauritanian colonel, Ely Ould Dah, who was studying at a military school in France, for torture; suits in Belgium, France, and Switzerland prosecuting individuals for crimes including genocide, crimes against humanity, torture and war crimes arising from the violence in Rwanda; and suits in Germany, Denmark and the Netherlands prosecuting individuals for crimes including genocide, murder, and war crimes arising from the conflict in the former Yugoslavia.

In March 2000, Britain found Pinochet mentally unfit to stand trial and allowed him to return to Chile - ultimately circumventing Spain's efforts to prosecute him. But Pinochet's arrest in London and the rejection of his claim to immunity by Britain's highest court represented a milestone in the international fight against impunity. The case acted as a catalyst, encouraging victims to file suits against Pinochet in Chile. In August 2000, the Chilean Supreme Court lifted Pinochet's immunity for life. On December 1, 2000, Pinochet was indicted by a Chilean judge for homicide and kidnapping committed in the immediate aftermath of the 1973 coup. The Appeals Court subsequently dropped the charges; however, the issue was appealed and was under review before the Supreme Court in late December.

 

 

 

 

 

 

OTHER AVENUES TOWARDS JUSTICE

 

Alternatives to criminal prosecution in a foreign country include civil damage suits like those available in the United States under the ATCA and the TVPA, and the deportation of human rights violators to the country of their nationality, as is commonly practiced in Canada. If the violation occurred within the Americas, it may be possible to raise it before the Inter-American Commission on Human Rights of the Organization of American States. Similarly, the European Human Rights Commission can address abuses in Europe.

International Criminal Tribunals, which have been created by the United Nations Security Council for the former Yugoslavia and Rwanda, have also offered a means for victims of gross human rights abuses to obtain justice. These ad-hoc tribunals have jurisdiction over genocide, war crimes and crimes against humanity committed in those countries during specific time periods. In August 2000, the United Nations agreed with Sierra Leone to establish an "international-style" court similar to that proposed for Cambodia. The subject matter jurisdiction for both proposed courts includes crimes against humanity and violations of international humanitarian law. Still, in other places such as East Timor, the extraordinary political consensus required to create such tribunals has been impossible to muster.

The approval in July 1998 of the Statute for a permanent International Criminal Court (ICC) is among the most significant events in the global fight against impunity. When 60 states ratify the statute, the ICC will have jurisdiction over future cases of genocide, war crimes and crimes against humanity when national courts are unable or unwilling to prosecute. Cases can be referred to the court by the Security Council or state parties. In addition, the ICC's prosecutor will have the power to initiate a case based on reliable information, including from victims and NGOs. It should be noted, however, that the ICC can only address crimes committed after its statute goes into effect, and even then it will only be able to handle a limited number of cases. Furthermore, in the absence of a Security Council referral, either the state where the crimes were committed or the state of the violator must be a party to the statute or consent to jurisdiction for an ICC case to proceed. Given these limitations of the ICC, bringing foreign prosecutions based on universal jurisdiction will remain important.

As cases like the Li Peng lawsuit continue to emerge, mechanisms upholding accountability will be widened and reinforced. More victims of human rights abuses will then be further galvanized to seek justice, and the universality of human rights will be further reaffirmed.

REFERENCES

 

 

 

 

  • On ATCA suits, see The Center for Constitutional Rights, An Activist's Guide: Bringing International Human Rights Claims in United States Courts, 1997.
  • On other avenues for international justice, see Human Rights Watch, The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad, March 2000.