2 votes

Major News: Former Communist Chinese Supreme Leader indicted for Genocide

"Chinese authorities have failed to investigate the the case..."

"The committee accuses the former president of ordering forced deportations, mass sterilisation campaigns and torture of dissidents."

http://www.ibtimes.co.uk/articles/513252/20131011/china-pres...

Very encouraging news indeed imo.



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Shehuizhuyi fazhi li’nian
jiaoyu

社会主义法治理念教育

“Education in the concept of
socialist rule of law"

donvino

surprised DP votes this down

I think I will post only Chinese atrocities against humanity here till it sinks in.

donvino

When a court of competent jurisdiction tries the case with the

defendant allowed to be present for all proceedings, have access to counsel, and be allowed to question his accusers, and the court have the legal authority to impose sentence and carry it out, let me know.

Until then, this is nothing more than a gang of pontificating Joe Shmoe's "trying" someone for an alleged crime in their garage.

I swear, you sound like the average yank liberal who's more concerned with "intent" rather than results.

Some people just can't separate the general topic they post about from the specifics others are criticizing.

Your down votes are all about the shoddy and pathetic specifics.

BTW

China ratified the UN Convention on Torture in 1988

". The Crime of Genocide Under Spanish Law
The Audiencia began its discussion of the substantive issues of jurisdiction with the crime of genocide. It noted preliminarily that "international treaties prevail over domestic law," 112 citing to both the Spanish Constitution 113 and the Vienna Convention on the Law of Treaties. 114 With this principle in mind, [End Page 957] the Audiencia concluded that Article 6 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 115 ratified by Spain in 1968, did not prevent the courts from trying crimes of genocide committed outside of the territorial jurisdiction of Spain. Article 6 states: "Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction. . . ." 116 The Audiencia concluded that "article 6 of the Con-vention does not exclude the existence of judicial organs with jurisdiction distinct from the territory of the offence or of an international tribunal." 117 In short, it found no specific limitation or exclusion of the possibility of a State Party's legal system providing for jurisdiction for acts of genocide committed outside of the national territory.
The court concluded that
Article 6 . . . imposes [the principle of] subsidiarity on actions by jurisdictions other than those which its precepts define, in such a way that . . . a State should abstain from exercising jurisdiction over facts giving rise to genocide which have been judged by the courts of the country in which they occur or by an international criminal court. 118
Stated another way, the court found that the superiority of international treaties over domestic law required that Article 6 be interpreted as a bar to the invocation of domestic jurisdiction only when another State had prosecuted genocide committed within its own territory or when such an adjudication had been completed by an international tribunal.
The prosecutor next argued that the crime of genocide, as defined in Spanish law, can only be committed against a national, ethnic, racial, or [End Page 958] religious group and that the repression carried out in Chile and Argentina had political motivations. The Audiencia, therefore, proceeded to analyze the evolution of the substantive definitions of genocide in Spanish law over the relevant time frame, from 1973 to 1990.
Following ratification of the Genocide Convention in 1968, Spain first codified genocide as a crime in 1973. 119 Genocide, included in the Spanish Criminal Code as a "crime against the rights of peoples," was committed when the defendant had the intent to destroy a "national ethnic, social or religious group." 120 There are two significant departures from the Genocide Convention's definition of destruction of a "national, ethnical, racial or religious group." 121 First, there is no comma between "national" and "ethnic," and second, the term "social" is used instead of the term "racial." Spanish law, then, explicitly departed from the Convention's definition only five years after its ratification. In 1983, the Criminal Code was partially amended, and the word "racial" replaced "social" in the code, though the comma between "national" and "ethnic" was still not added. The most recent amendment to the Code, in 1995, brought the definition into conformity with the Genocide Convention. 122 The Audiencia, then, could draw from several different constructions for its own interpretation of national law on genocide.
The court chose to ground its analysis in the concept of "national group." Rather than give direct significance to the term "social group," as that term was used in the earliest codification, the Audiencia used the term "social" as a means of giving context and meaning to nationality. The term "national group," the Audiencia concluded, was mediated by the word "social," meaning that genocide had to be interpreted through a broader notion of "social conception and understanding" to avoid a potentially crabbed or narrow legal reading of the genocide definition. 123
That social understanding of the concept of genocide derives from actions that predate the Convention, asserted the court, in such expressions of outrage by the world community as the U.N. General Assembly's Resolution 96 of 1946, which recognized genocide as a jus cogens crime and supported punishment of those who commit genocide against a group for "religious, racial, political or any other grounds." 124 The judges further [End Page 959] noted that genocide is a crime against humanity because it "carries out actions seeking to exterminate a human group," as noted in the terms of the Statute of the Nuremberg Tribunal, where crimes against humanity are defined as "assassinations [or] extermination . . . committed against a civilian population . . . for political, racial or religious motives." 125 Finally, the tribunal noted that the Preamble of the Genocide Convention itself expresses the recognition that, throughout history, genocide has inflicted great losses on humanity and that international cooperation is needed to free humanity of its scourge. 126
The term "national group," the court concluded, "cannot mean 'a group formed by people who belong to the same nation,' but instead, simply, a national human group, a differentiated human group, characterized by something, integrated into a larger collectivity." 127 Any more restrictive understanding of the term would prevent genocide from being applied to such "odious" practices as the killing of all people with AIDS, or all old people, or all foreigners, or even the systematic elimination of the powerful. 128 The Audiencia concluded:
The persecuted and harassed group was composed of those citizens who did not fit the type preestablished by the promoters of the repression as necessary for the new order to be established in the country. The group was composed of [End Page 960] citizens contrary to the regime, but also of citizens indifferent to the regime. The repression did not try to change the attitude of the group with respect to the new political system, but wanted to destroy the group, through detentions, tortures, disappearances, deaths and intimidation of the members of a clearly defined group--identifiable--for the repressors. It was not an action of chance, indis-criminate. According to the report of the National Commission on Truth and Reconciliation, created by the democratic Government of Chile in 1990, between the 11th of September of 1973 and the 10th of March of 1990, the number of deaths in the country caused by agents of the State went up to 1,068, and the number of disappeared was 957. 129
D. The Crime of Terrorism Under Spanish Law
The Spanish Criminal Code defines terrorists as those who commit any of a series of violent offenses against persons or property while "acting in the service of, or collaborating with, armed bands, organizations or groups [End Page 961] whose objective is to subvert constitutional order or to gravely alter public peace." 130 General Pinochet is also charged with the closely related offense of "Illicit Association," which makes membership in an armed group, organization, or "terrorist group" punishable if the group has, as its objective, the commission of a crime or, after the group is formed, promotes the commission of a crime. 131
As to the question of jurisdiction for terrorism, the Audiencia Nacional's ruling relied largely on its legal reasoning with regard to genocide, in that both offenses are found on the list of crimes for which universal jurisdiction exists under Article 23.4 of the Organic Law. Although the prosecutor argued that the "constitutional order" in the Code refers to the Spanish constitution, the judges quickly disposed of that argument by noting the existence of universal jurisdiction and concluded that the code refers to "the juridical or social order of the country where the crime of terrorism is committed, or which is directly affected as the target of the attack." 132
As for the crime of Illicit Association, the Audiencia noted that the group organized by Pinochet was characterized by secrecy--"it was parallel to the institutional organization in which the defendants worked, but not to be confused with it"--and it shared the characteristics of all illegal armed bands: "structure (stable organization), ends (production of insecurity, disturbance or fear in a group or in the general population), and teleology (understood as a rejection of the rule of law by the dominant juridical order in the country at the time)." 133
Here, some reference to prior jurisdictional rulings is helpful. In the trial court, Judge Garzón had rejected a similar attack on his jurisdiction in the Argentine case. His reasoning is also applicable to the Chilean case. The prosecutor had argued to Judge Garzón that the offenses could not have been committed by an "armed band, organization or group" because the Argentine state and its armed forces cannot be considered as such. Judge Garzón responded that the State of Argentina had not been charged with the crime of terrorism, but the highest military authorities of the State were charged with [End Page 962] personal responsibility. Those authorities had used illicit groups within the armed forces to form paramilitary and terrorist organizations that undertook systematic terrorist actions under direct orders from the highest in command. 134
To summarize, then, Augusto Pinochet would be guilty of terrorism if he "acts in the service of" or "collaborates with" a paramilitary organization acting outside of the law, when that organization seeks to either "subvert the constitutional order" of any of the countries in which it operates or "gravely alters the public peace" by committing any of a broad group of serious crimes of violence. He would be guilty of terrorism if he carried out crimes of violence with the criminal intent of a terrorist, even if he is not a member of any terrorist group. He would also be guilty of the crime of Illicit Association if he is proven to be a member of any terrorist organization, whatever his specific acts may or may not have been. 135"

http://www.umass.edu/legal/Benavides/Fall2005/397G/Readings%...

I think the downvotes are due to ignorance and people who are indifferent to Chinese high crimes.

Repent or Perish

ps. Good to see the Chinese upset about this. If this was not important they would not care.

donvino

I read clearly that the Treaty allows for either courts of

territorial jurisdiction or competent courts of international character.

This court is neither. They made the rest up out of thin air.

I'm not indifferent to these crimes.

I don't consider this to be a legitimate trial.

THAT is ALL I am saying.

The notion of trying another nation's leader in absentia, with

such a flimsy legal nexus is quite absurd.

This is only marginally better than a ragtag group of armchair wannabe lawyers doing the same thing.

There's no way to enforce any court verdict, so the entire exercise is pointless.

September 2007

"The first warning is that someone at the Judicial Bureau will give you a simple phone call to 'have a chat.'"

W.Z., a Shanhai Lawyer

http://www.hrw.org/sites/default/files/reports/china0408webw...

donvino

yeah

Genocide is absurd?

donvino

You completely missed the point. Big time.

Go read my comment again.

BTW

Chinese Forces opened fire on a crowd of demonstrators in military occupied Tibet and killed 3 and wounded dozens last week.

Tibet has been under communist Chinese occupation since 1950.

donvino