In conjunction with the appeal being taken in this case to the U.S. Court of Appeals for the Seventh Circuit in Chicago, the World Organization Against Torture USA will be filing an amicus (friend of the court) brief in support of the right of victims of torture in China to file Alien Tort Claims Act and Torture Victims Protection Act claims in U.S. courts against Jiang Zemin and other high-level officials of the People's Republic of China seeking money damages for the acts of torture and genocide committed against them. The World Organization Against Torture USA is the U.S. affiliate of a worldwide network of more than 200 human rights groups, and last year won a major case before the U.S. Court of Appeals for the Seventh Circuit based on the finding that female genital mutilation is a form of torture that must be taken into account in a deportation proceeding. (Nwaokolo v. Ashcroft, 314 F.3d 303).

The amicus brief takes the position that Federal District Court Judge Kennelly should not have dismissed the complaint against Defendant Jiang based on the fact that he served as head of state of the People's Republic of China during part of the period that these violations and abuses took place. It points out that a former head of state does not deserve the same level of protection against law suits filed in this country as is given to sitting heads of state, and that Defendant Jiang had left his office of head of state on March 15, 2003, so that he should have been considered liable for acts of torture and genocide committed after that date, even if he is deemed immune from lawsuits for actions taken during his head of state status.

The brief also notes that Judge Kennelly made a fundamental error when he allowed the U.S. Department of State to determine whether head of state immunity applies to Defendant Jiang. The State Department certainly has the authority to inform the court as to whether a defendant holds head of state status for the period in question.   But it is up to the Court, not the political branches of the government who are heavily influenced by political and foreign policy considerations, to decide whether application of head of state immunity protections are justified by the circumstances of the case. In the present case, there is no dispute that former President Jiang was the principle architect of the campaign of persecution against Falun Gong practitioners that has resulted, by the U.S. Department of State's own estimates, in death by torture of hundreds of Falun Gong practitioners in police custody, and the arbitrary arrest, torture and long-term detention of many thousands more. There is a long line of cases holding that the most serious forms of human rights abuses, such as torture and genocide, can not be considered officially approved or justified under any circumstances, and therefore can not be covered by head of state or any other form of official immunity. The brief calls for the case to be remanded back to the U.S. District Court for trial on the merits of the claims presented under the two Congressional statutes authorizing these types of civil damage award lawsuits in U.S. courts.

This is an important case not only because of the issues of torture and genocide in China that it raises, but also because it relates to the campaign that the Bush Administration has been waging to close off U.S. courts to human rights cases involving abuses committed abroad for political and foreign policy reasons. (See front page articles on this issue in recent editions of the Washington Post and New York Times.)

For further details contact Morton Sklar, Executive Director of WOAT USA at (202) 296-5702, [email protected]