Justice Lost in China, Found in Argentina

By Epoch Times Staff
Epoch Times Staff
Epoch Times Staff
January 21, 2010 Updated: October 1, 2015

EU Parliament members support the indictment of five CCP officials for genocide and torture aimed at Falun Gong practitioners in China. (NTD News)
EU Parliament members support the indictment of five CCP officials for genocide and torture aimed at Falun Gong practitioners in China. (NTD News)
On Dec. 17, 2009, Judge Octavio Aráoz de Lamadrid made a landmark decision to issue arrest warrants for two high-ranking current and former Chinese officials in connection with their roles in the persecution of the Falun Gong spiritual practice in China. The ruling set a historic legal precedent for Argentina through its reliance on principles of extraterritoriality to prosecute foreign defendants for crimes against humanity.

The two accused were Jiang Zemin, former leader of the Chinese Communist Party, and Luo Gan, former head of the 610 Office, an extrajudicial agency set up to lead and coordinate the campaign against Falun Gong. They are required to appear for oral questioning and declaration. It will then be decided whether a trial will take place.

Judge Octavio Araoz de Lamadrid of Court No. 9 of the Federal Criminal Court of Argentina resigned shortly after the ruling. In his words, it was because of political pressure related to a separate case concerning a lawsuit against the government brought by one of the biggest media groups in Argentina. He continues his career as a criminal lawyer. He was interviewed by Ignacio Piaggio, a reporter from New Tang Dynasty Television, in his office in downtown Buenos Aires on Jan. 7. He spoke candidly about the genocide case and related issues. A shortened version of the interview is below.


Q) Tell us where you were born, where you grew up, and something about yourself.

A) I was born here in Buenos Aires, in the Capital; I grew up in Martinez outside of the city. I went to state schools, both grade and high school. I studied in the Catholic University of Argentina. I am married, 40 years old and have three children, two boys 11, 7 and one baby girl of 7 months.

All my brothers are lawyers, my father is a lawyer, he was an economic criminal judge for 15 years and my grandfather was president of the Court under the governments of [Presidents] Frondizi, Guido, and Illia.

Q) How did you come to study law? Was it a personal decision, or was it something influenced by your family?

A) [The decision to study law] came naturally; it was a natural inclination of the family. We all opted for the legal profession. As a child, I always wanted to be a judge. I dreamt as a child to become a judge and I prepared for this many years, always with this goal in my mind.

Q) What do you like to do in your spare time?

A) When I could, I play tennis; I like to play guitar, bass, meet with friends. I will try to play football again, now that I have more time. I loved playing football, but there came a time I could not do it due to the working hours.

Q) Did you play in a team..?

A) No, no, with friends. But I often let them wait for me in vain, and there came a time when I stopped going.

Q) You are a fan of which football team?

A) River Plate

Q) Going back to about you wanting to be a judge … you always had an inclination for defending human rights or for some particular branch of law?

A) My inclination has always been criminal law, probably inspired by my father. But I cannot say that as a child that I thought about human rights. No, that would be too much to say. Yes, I like law, I like criminal laws. I always had the inclination for justice. Then, in the course of study and practice you begin to become more interested in certain subjects, for example, human rights.

When I was studying for a year in Spain, I began to get involved more in the subject of criminal law doctrines, which is based a lot – all of the development of the doctrine – in the recognition of the person and how an efficient criminal justice system which protects and guards all the rights of the people can be achieved and, this perspective inclined me toward this subject.

Q) Now going into it a bit more in this case … Many feel, and, also around the world, that you have demonstrated great courage to apply these principles of international concern. What did you think about this issue when you accepted the complaint?

A) I tried to be very technical on the subject of the complaint. It is clear that accepting a complaint against a foreign country, there is a significant international relevance and can cause problems with the national government. So I tried to be very strict respecting the treaties that Argentina has signed. I went back into the Argentina doctrine till Jimenez Azua and ancient authors which recognized the possibility that Argentina prosecutes crimes committed abroad that violate international law.

I tried to be very technical, to avoid wounding anything that is sensitive. It is clear that federal trials have a very important political aspect for two reasons: on one side, if you make a complaint against a public official, you have to be very sure and be very clear if you're going to proceed, and why you are doing it. Because to proceed against an active public official affects the government, and one must be responsible to think that when you have the exercise of power, what will you do? We should not involve the national government beyond what is strictly necessary.

That responsibility made me do it very technically to reach the conclusion that the complaint must be accepted, and that we cannot evade this responsibility. And so it was done this way. This did not require any special courage from me.

Q) It concerns a world power like China, did this not generate any difficulty?

A) What it generated is institutional responsibility. The judiciary power is part of the three powers of the State, so when you make a certain decision as a judge and it has an impact on other powers, you have to be very careful in what you are doing. Once you are certain and you are prudent and that technically you are convinced about what you're doing, I don’t think you need any special courage to carry it out. Some say that they went to a judge who has a special courage… but you know what? If you do not assume the responsibility of the job, knowing that there will be difficult moments, you are not a judge.

To tell you the truth, at that time no one pressured me. There was a call from the Foreign Ministry and nothing else at that time. They informed me that Luo Gan had diplomatic status, but nothing more. I did not consider it as a pressure or anything else. They informed me of that, okay, no problem. The one who decides is I, and I decide according to my convictions and to my spirit.

Afterwards, two years ago the Foreign Ministry called again because Taiana [Foreign Minister of Argentina] was visiting China and he wanted to know if we had made any decision against China. At that moment not yet; I had not yet travelled to United States [to obtain testimonies]. These were the two contacts we had.

Q) What are the reasons the claim was accepted and later the prosecution of the accused was ordered?

A) First was to accept the complaint. The complaint was accepted, basically, under the principle of universal justice, under which all civilized countries, including China—because she signed those treaties—are responsible for giving any citizen of the world access to justice and to be able to go to a court and claim his or her rights. The complaint was accepted, basically because: to give the victims of a crime—which, by its nature, affects the entire international community—a court where they can enforce and claim their rights. As China does not do this, therefore, international jurisdiction is generated.

Any country that arrests the accused can put them on trial. In our case, we had the conditions to arrest him, we were in Argentina [in reference to Luo Gan’s visit to Argentina in December 2005 when the complaint was filed], and therefore, the complaint was accepted. However, later, well, due to processing procedures, he already left Argentina, so the possibility of arresting him did not become a reality. The final resolution in this case is not an indictment. Technically it is a summons for oral questioning and declaration. An investigation was made, it was considered that sufficient evidences have been accumulated to suspect that a person committed a crime and who also is the perpetrator, so he is summoned to oral questioning and declaration. Since the person is not in the country, after a summons, the order for international capture is issued, requesting any country in the world to arrest him and be sent to Argentina to be tried.

Q) What role did moral issues play?

A) I always tried not to mix the judicial functions, in order not to lose objectivity and not let the crimes which you are investigating affect you. But this is inevitable when you start to make contact with victims, and when you begin to come into contact with the reports; the UN the reports are very convincing. Dr. Alejandro Cowes [lawyer of the plaintiff] knows how many times we have asked for neutral information, which is why the United Nations was ideal for me to enable me to maintain neutrality in order to assess whether what I am gathering in the file is what the victims are providing and nothing else, or there is someone independent and neutral, who also reinforces what the victims declare. That happened with the UN reports.

Q) Is there any report or declaration that attracted your particular attention?

A) Yes, a lot. Testimonies about how they were deprived of sleep, how they had to work the earth with bare hands. I always remembered that they were made to assemble throw-away chopsticks for export worldwide, and the torture, the magnitude of the torture! And what I always tried to look for, as I gathered the declarations, is the method. They fine-tuned a very clear method. They [persecutors] have a very clear procedure. After taking, I forgot how many declarations, forty or fifty, more or less, the method of the Chinese government on how to proceed with the practitioners became very clear. When they detect them [Falun Gong practitioners], there is first is a medium- short detention of a few days, with beatings and confinement; these vary depending on who is the first to carry it out, but basically the first stage consists of a few days of confinement and telling them that they have to stop practicing Falun Gong. If they continued with the practice and were arrested again, then the confinement is much longer, there is never a judicial intervention, and the confinement is longer. Then comes brainwashing, with beatings, torture, convincing them not to practice. They are released again. If they were arrested again, they then go through a form of , let’s say, a fake trial, then they are transferred to detention centers; in some cases they do this, not always; we have documents of some sentences , and they are sentenced for 3, 4 years, and then they disappear.

How the arrests were made in Beijing when there were large demonstrations, how the policemen from all the provinces of China went about to identify their people made an impression on me. Before they [the practitioners visiting Beijing] were registered under the system in Beijing, they were arrested, put on trains, buses or different means of transportation, and taken to their provinces. Because the central government punishes those governors who have a lot of people going to protests in Beijing, to avoid that, they kidnap them beforehand and take them to the provinces and torture them there, to maintain good relations with the central government.

All this structure, all this organization is what most surprised me. This means, we are talking about something that happens far away us, which we did not see, which we cannot touch, but there are a whole lot of people who are subject to torture, and so many things are happening to them. When you can see that behind it there’s a system, it is very shocking.