September 19, 2014
The High Price of Diplomacy With China
Posted on Apr 23, 2008
Bo’s Alleged Role
The plaintiffs in the Bo case—three of whom are referred to by pseudonyms for fear of retaliation against relatives still in China—contend that as governor, Bo maintained strict control over the persecution of Falun Gong. The complaint alleges that he fired and prosecuted other government officials who refused to execute his Falun Gong policies, which, according to China experts, are often carried out by provincial officials.
“There has been a lot of evidence pointing to the provincial government as overseeing these abuses,” said one State Department Asia policy officer who spoke on condition of anonymity because she was not authorized to speak publicly about sensitive diplomatic matters.
The plaintiff named is 47-year-old Falun Gong member Li Weixum. She claimed she was beaten with a steel pipe and hung by handcuffs around her wrists until she bled. Another member, arrested with Li, said her head and face were covered with plastic wrap until she fainted. The action was repeated when she regained consciousness.
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The Falun Gong has filed more than 50 human rights lawsuits around the world, seeking damages from Chinese government agencies and officials. Only a handful of suits has been successful. Last fall, an Australian court ruled in favor of Falun Gong members in a torture claim filed against Bo Xilai.
Human rights groups, such as Human Rights USA—the group that is representing the Bo case plaintiffs in U.S. courts—are increasingly pursuing alleged human rights abusers in civil arenas, using laws like the Torture Victim Protection Act and the Alien Tort Statute, a controversial law enacted in 1789.
“The [Alien Tort Statute] became an effort by human rights activists to incorporate all sorts of ideas from international law into the law of the U.S.,” said Richard A. Samp, chief counsel at the Washington Legal Foundation, a public-interest law firm and free-enterprise think tank. “Ninety-nine percent of [the cases] I think are frivolous.”
But foreign officials have begun to accept U.S. jurisdiction in such cases. In 2006, the ruler and deputy ruler of Dubai hired the law firm DLA Piper when they were accused of trafficking boys to be used as camel jockeys in the United Arab Emirates. The case—filed in federal court in Florida—was eventually dismissed. A similar suit is ongoing in Kentucky.
In another case, the then-prime minister of Cambodia hired an American law firm to defend against allegations of human rights abuses in a lawsuit filed in New York.
A ‘Special’ Immunity
The Bo suit in the end may not hinge on foreign policy implications, but on whether Bo is immune from litigation filed in U.S. courts. He was served with the civil complaint while visiting the U.S. on official government business, as part of the U.S.-China Joint Commission on Commerce and Trade in 2004.
Heads of state and diplomats are by law immune from most criminal and civil complaints, but international laws are less clear when it comes to lower-level government officials like cabinet members.
In a similar case in 2004, a federal judge in the Northern District of California ruled that two Chinese officials—the then-mayor of Beijing and the then-deputy governor of Liaoning province—were not immune from torture suits. The judge, Edward M. Chen, issued a default judgment in favor of the plaintiffs, practitioners of Falun Gong, but did not award any damages. The former Beijing mayor, Liu Qi, is now president of the Beijing Organizing Committee for the 2008 Olympics.
In the Bo case, the Justice Department is claiming Bo cannot be sued because of what it calls “special missions immunity,” part of a treaty the U.S. has never signed. But the Bush administration says such immunity is legitimate under customary international law, and that the president can decide when to invoke the rule. “Such a determination has been made in this case with respect to Minister Bo,” according to legal filings. “The United States must be able to host foreign officials without the prospect that they may be served with process in a civil suit.” The government also claims it “could expose U.S. officials visiting other countries to suits arising from their performance of official U.S. government functions.”
Human rights groups, however, argue that the U.S. government is reinforcing human rights abuses by maintaining positive relationships with alleged torturers.
“High-level officials from foreign governments who are committing human rights abuses should be very fearful of entering this country, or any other country,” said Morton Sklar, executive director of Human Rights USA.
Judge Leon has been deliberating over the Bo case since last June, and by law it is his choice whether to defer to the views of the Bush administration and dismiss the suit. A spokeswoman for Judge Leon would not say when he plans to make a decision.
The State Department’s legal advisory office would not comment on the record for this article, instead pointing to its arguments already filed in court.
China experts say it is unlikely Bo will ever be questioned in the affair.
“I don’t think any Chinese government official would even spend time in hiring lawyers, or coming to America to give a deposition or show up in court,” said Siva Yam, president of the U.S.-China Chamber of Commerce. “If they do, they will lower their status.”
James Sandler is a reporter at the Center for Investigative Reporting. Previously, Sandler was part of the New York Times team awarded the 2004 Pulitzer Prize for Public Service. Shahien Nasiripour, an intern at CIR, contributed reporting for this story. CIR is a nonprofit, nonpartisan news organization dedicated to investigative journalism since 1977.
Read a related report linking the head organizer of the Beijing Olympics to torture.
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