By Terri Marsh | May 14, 2013
Falun Gong practitioners dressed in white carry pictures of adherents of the spiritual discipline killed in China during the persecution launched by former Communist Party head Jiang Zemin, in Washington, D.C. on July 17, 2009. A recent decision by an Argentine court holds open the possibility that a 2009 ruling by an Argentine court to arrest Jiang Zemin for human rights violations, which had been overturned on appeal, may be reinstated. (TIM SLOAN/AFP/Getty Images)
It’s a ruling being seen as a limited but important victory for global human rights law. The Argentine National Court of Criminal Cassation, Chamber III, announced on April 17, 2013, its decision to reopen a case against Chinese Communist Party authorities for genocide and other violations against adherents of the Falun Gong spiritual group.
The case made worldwide headlines in 2009 when Argentine Federal Criminal Court Judge Octavio de Lamadrid, finding evidence of thousands of cases of severe human rights violations against Falun Gong adherents, ordered the arrest of former Chinese Communist Party head Jiang Zemin and internal security chief Luo Gan.
That landmark ruling came after the case had been in investigative proceedings for four years since being filed with a Federal Court in Buenos Aires in 2005 under Argentine legal provisions for universal jurisdiction.
However, the jubilation of the Falun Gong community and many global human rights advocates was cut short by an Appellate Court decision in 2011, which would dismiss the case on technical grounds.
That ruling, which was seen by many as politically motivated, coincided with the sudden dismissal of Judge Lamadrid from office—and also with a series of friendly visits between Argentine and Chinese political leaders.
Since then, the case had been on hold and in danger of dismissal. The plaintiffs made a near-final appeal to the Cassation Court in an effort to save their case.
Finally, though, in its April ruling, the Cassation Court found that the Appeals Court had incorrectly ruled that the case should be dismissed based on the principle of “ne bis in idem” (no two cases on the same issue). This principle has long been in place in continental legal systems, paralleling the “double jeopardy” guarantee in common law countries.
In essence, the principle holds that two identical matters cannot be brought forth independently against the same defendants. Because a similar case based on human rights violations against Falun Gong adherents had already been brought in Spain, the Court of Appeals ruled that the principle applied.
Not so, according to Cassation Court Judge Liliana Catucci, on a three-judge panel with the supporting vote of Judge Eduardo Riggi and the dissenting vote of Judge Mariano Borinsky. Judge Catucci ruled that the Appeals Court had sought to apply the constitutional guarantee of ne bis in idem without properly subjecting it to a factual inquiry.
In her majority opinion, the judge wrote, “The mere invocation of a guarantee is not sufficient to decide an investigation, nor to paralyze one.”
Proper application of ne bis in idem would require showing that the two cases, the one in Argentina and the matter in Spain, shared the “three identities classically elaborated of a judicial matter: party, object, and cause of action, which must coexist for full identity [of two legal processes].”
The Appeals Court had failed to show these “three identities,” and so Judge Catucci sent the case back down for a full factual determination.
While at no point in her decision did Judge Catucci mention the politically volatile history of the case or the severe punishment inflicted on the now-disrobed Judge de Lamadrid, she did importantly note, “It is obligatory when faced with facts of the nature of those expounded here, to put maximum effort into their determination, a commitment stated and repeated by the Supreme Court in its doctrinal precedents.”
Reversing Disruption
This ruling moves in the direction of reversing the obvious disruption of the judicial process by Argentine authorities when Judge Lamadrid was personally targeted and his ruling slated for dismissal.
Both Judge Lamadrid and the petitioners before the Cassation Court had cited Supreme Court precedents clearly showing that Argentine law allows human rights cases like the present one to be determined under universal jurisdiction.
But for the present, the scope of coming decisions in this legal proceeding will still focus on the issue of ne bis in idem. The lower court will have to heed the Cassation Court ruling and make a full showing of facts indicating that the Argentine and Spanish cases are either identical or sufficiently different to coexist.
The very concept of applying ne bis in idem to two universal jurisdiction cases is also being looked at skeptically by legal experts—it’s unknown for the principle to be used to block global human rights litigation.
International tribunals have even explicitly ruled that the principle should not hold across two countries’ legal systems.
Thus, for instance, the U.N. Human Rights Committee decision in A.P. v. Italy (1987) stated, “The principle only prohibits retrials after an acquittal by the same jurisdiction.” Not internationally and not prior to a case’s final disposition.
The Spanish case has similarly faced domestic political pressure following official court investigation into Chinese Communist Party human rights abuses against Falun Gong adherents. Nonetheless, that matter, like the Argentine case, remains active and is currently awaiting resolution.
Any judge making a final ruling on either case would have to be highly objective and resistant to political pressure in order to issue a ruling calling Chinese authorities to account for human rights violations. Like the cases’ subject matter, these extralegal challenges are distinct in each country but nonetheless bear a resemblance.
Yet the official criminal investigation process itself—initiated in two countries that have each experienced their own brutal dictatorships but emerged to become world leaders in human rights law—has shown that the principles underlying universal jurisdiction will not stay dormant for long. Justice will eventually prevail.
Terri Marsh is executive director of the Human Rights Law Foundation (hrlf.net).
Terri Marsh is executive director of the Human Rights Law Foundation (hrlf.net).
