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.
Q) How does it feel to be the first judge who made such a ruling?
A) Yes, pride, but I repeat what I said before: I do not think that judges have to show this as something special. They should not. It is normal that a judge does this because it is his duty. Judges do not have to issue a ruling because this is going to be better for his ego or it will have more or less press exposure. In fact, I refused to do interviews for years and I have refused this for years, because a judge never gives an interview. This should not be anything special for a judge. It has to be done because that is his job. Apart from this, due to all the greeting cards and gratitude that was given to me, yes, it gives me certain joy to have done something very little, because the truth is that what I did was very little, but when I see that many people take it as a breath of air, as something that is good for them, this makes me happy, yes.
Q) It has been 10 years, why do you think only now a judge has taken this step?
A) Yes, this is really something. Why in ten years, with all the complaints that were filed, the lawsuits that were presented in so many countries, did they never move forward? I am surprised. The only answer would be that this is an action taken against the “Asian giant,” the country with which all the countries in the world have very strong economic interests. It is the only answer I can think of, because, looking at it objectively, it makes no sense that these lawsuits have been delayed so long in being accepted.
It surprised me a lot; in fact very much that Spain took so long to open the case to prosecution. When I studied in Spain, I knew, more or less some members of the Spanish judicial system, and they have a much more recognitions and much more independence than the Argentine judicial members. And the Spanish justice has advanced against cases of crimes against humanity in Guatemala, Iraq, but it costs them so much to progress in this; this really surprised me. I do not know the reasons, but I was surprised.
What struck me about Spain is that they did not apply the principle of universal justice, and they already have it already in their laws. The Constitutional Court, which opened the case to prosecution now, used the principle of universal justice; they did the same as I did and this is hardly surprising. Although it is surprising that they have not done this in the earlier stages.
In the Spanish Supreme Court, which rejected the demand, there are people of great ability, which I am not even near to the height of their heels. Why did they reject the case? Certainly not because they are unfamiliar with the principle of universal justice; I don’t know why.
Q) The Argentine government has championed for human rights. How should the Argentine government react to the declarations of the Chinese regime?
A) The government should support what the justice did. They should say nothing. The Argentine government has nothing to comment on with respect to this matter. They must respect the judicial system, and maintain its position on human rights, and should request that China, via diplomatic channels, provide evidence, and that the persons accused present themselves. I do not think that this will happen; it’s difficult.
Q) What did you know about the spiritual culture and the human rights situation in China before this case?
A) Nothing, I must say, very little. What everybody knows is that it is a communist regime, and like all communist regimes, it is oppressive and limits all freedoms. On the religious issue, I only knew that there is the religion of the Party, but I did not know anything at all about other religions in China, I had no idea.
Q) Has that changed in the course of your work?
A) Yes, yes, and it has been very surprising. I am very surprised by something we Westerners find difficult to understand: how the practitioners give everything for their spiritual belief, everything, and everything. We have not been able to understand this. We cannot see this because our Western mind does not have anything like this. The level of dedication they show, the degree of sacrifice, only so that they can practice their belief peacefully, is something that moves you, it’s something we do not experience ourselves. In our culture, this does not exist, we don’t have this. The closest thing which you can compare, and it is even ridiculous, is the love we have for football, or an emotion we have when we are in a fight over political ideologies. But this is more than that, it is much more than that, it is a teaching so complete that it is very difficult for us to see, and this caught my attention.
Q) Several Chinese dissidents within China have dared to praise the cases of Argentina and Spain, despite the danger of being repressed. This could be a sign of the degree of importance for the Chinese, at least for the few who so far have been able to learn about this, by breaking through the information blockade imposed by the regime. What impact could you imagine your ruling will have for the future of China?
A) Let’s see, in order not to make predictions. You have the declarations of the spokesperson of the Foreign Ministry (in China), which are important. It means that the arrest warrant affected China, really, much more than I thought, because we are talking about the arrest of a former president and former important official. They are not even acting officials, i.e., the Chinese government could have ignored the matter without important comments. That a present spokesperson expresses the displeasure of the Chinese government is a sign that it is something that pains the Chinese government, this is something that would not have happened if it had not affected them.
With time, if there are more detention requests, I believe that there could be a change. How long it will take, it is impossible to know, but a change must be forced. For this, there is justice. It is like a little key. Little by little, it adds up. Yes, this must have an important effect. Now, as to what will be the effect, we do not know.
Q) The spokesperson said that they will continue to treat Falun Gong practitioners with Chinese laws. Do you have any comments on this?
A) China has never disavowed that they banned the religion, which is the first big mistake. If they want to persecute practitioners of a religion and prohibit it by law, they are showing the entire world that they are carrying out a religious persecution, which is prohibited by all the conventions signed by all countries around the world, including China. China did not sign the Rome Statute, if she would have signed it, she would be, without doubt, before the International Criminal Court. They have in writing the exact crime: prohibition of a religion. This is inconceivable in any part of the world.
Q) Is it possible for the case to go to the International Criminal Court, although China is not a member?
A) International criminal law, which is the subject we are talking about, foresaw the creation of these international courts. What do the international courts and the Rome Statute do? They generate a criminal code for the whole world, a prosecuting code for the whole world and a court (the ICC). However, if the country does not submit voluntarily to the jurisdiction of this court, there is no way to bring the country to the court. However, it could be a possibility that the development of international law makes it possible to prosecute a country in the international court. Not yet today, but to me, this is a possibility. International law has demonstrated a degree of development and progress far richer and more important than what was expected from the beginning. This takes time.
Q) When the persecution stops and it is recognized, what is the function of this court? Nothing can be done, because China is not a member?
A) In this case, the international criminal court could try Luo Gao and the former Chinese president but cannot condemn the country. The United Nations could do this.
Q) So Jiang Zemin and Luo Gan can be tried?
A) But they must be under the jurisdiction of the international court, and as China is not under the jurisdiction of the international court, thus I made room for the complaint and, for this reason; Spain also made room for the lawsuit. As the international Court cannot give room to this complaint, the principle of universal jurisdiction arises; any other country can accept it [the complaint]. The most important is that the victims of the crimes cannot remain without access to justice. The complaint against the country, against China, this lies with the United Nations. But that the United Nations could condemn China …..today this is impossible.
Q) What do you foresee for the Chinese communist regime?
A) One possibility: like what happened to Russia. The Communist governments burn themselves out, this has been demonstrated. You can say that China is managing better than Russia, but this is happening to Cuba, and this will happen to China; how long until this happens? I don’t know.
Q) What should be the position of the international community and the public opinion in general?
A) To me, the international community seems to be giving importance to the subject; the countries that are not doing this are those which we mentioned earlier concerning economic interest with China. But the international community is interested. Three years ago an article appeared in a French magazine, which was published by Clarin [Argentina’s largest newspaper], about the trips made to China for organ transplants. There were no repercussions at the national level, but at the level of the international community, yes. The international community in Canada is permanently concerned, in the United States the community is concerned, the government tries always to maintain on the side, but who made a gesture? Bush…. when there was a manifestation of a representative of Falun Gong, a woman was arrested, a journalist and Bush said to free her.
It was not something out of the world, but it was a gesture, it was a gesture of the president of the most important country in the world; the community is interested, but I repeat, at nation level, it is more difficult.
Q) Is it a coincidence that Spain and Argentina could come this far in this case and not other countries?
A) No, it is not a coincidence. Looking for a connection, Argentina and Spain have the same identities; besides the same language, we have in general the same religion, and if this is the factor of influence or not, I don’t know. Our judicial systems are very similar, our laws are similar. Yes, these could be the factors, these could be the factors.
Q) Is it important for Argentina to take this step?
A) Argentina is getting renowned for human rights; we hope that this is maintained. Spain is also a country which always had a calling in the subject of human rights. If you want different concepts, Spain looks more outward. Spain goes out to recognize human rights crimes committed outside of Spain.
Q) Victims of the crimes you ruled against think you represent a ray of hope. Do you have any comments on that?
A) I understand. I repeat that I am very happy to have given them a very small ray of hope; what I did is a very little step. I hope it has some effects; I hope that this will make China recognize that they are in a wrong and become more pluralistic and open, so hopefully this is generated. I don’t think what I did has that much value that it will cause the Chinese Communist Party to do this; however, I would be very happy if it would be like this. And for the practitioners, I share their permanent pain which they suffer from the persecution; when one reads the files with the testimonies and when one takes the declarations and imagines living through this in China, it is impossible to describe. The things which happened to the practitioners with whom I spoke with are unbelievable; they are unbelievable and impossible to understand in the 21st century. I cannot send them a specific message, because the spiritual belief they have contains much more substance than a message I could give them; if what I did, gave them a value of hope, then I am happy because of this.
Q) The Canadian lawyer, David Matas, said that when he first came to this case, he had an obligation to investigate it. Later he found that this was something very big, something real, and something clicked. Did this happen to you?
A) Look, I put everything in two stages when I accepted the case and when I requested the capture [of Luo Gan and Jiang Zemin]. I wanted to be very technical, I could work with the testimonies of the plaintiff, of the first witnesses who came, and in regards to the reason to travel to the United States, I always said that, what we had up till then were declarations from witnesses of witnesses, or what someone said to someone. Judicially this does not have any value; it is something to begin with, beginning with whom they saw and what happened to someone, but we needed the declarations of direct victims, therefore, we travelled to the United States, and there we got in contact with 10 victims from different cities and different provinces [of China]. We already had several reports from the United Nations.
It was not that I clicked at a specific moment; I always looked at this from the perspective of a judge who looks for objective elements for the case. The first report of the United Nations told about a commissioner of the United Nations who travelled to China and sought to have an interview with a family of the lawyer who was persecuted. He arranged the interview, which was not in the program which the CCP had set up for him. He went and met with this lady, but the police went to stop him, detained him and brought him to the airport. The report was two pages long and it was a surprise to me that the United Nations did not do anything. This is objective data of a very clear signal that a person who is not a practitioner suffered the CCP’s policy. They arrested a commission of the United Nations, they detained him illegally, they did not torture him, but they caught him and put him in the airport. This is what I always looked for in the case and not because it was repeated to me a great number of times; I looked for objective elements, direct victims, and when you can obtain independent information, this is what has great value, and this is what was gathered during these years to finalize the capture requests.
Q) Now Argentina has reached this step, the case in Spain is advancing, maybe more will come, how do you think they can collaborate with each other?
A) Basically share information; the plaintiff remembers perfectly that from the moment the case began, it is about gathering information, gather documents, gather objective information that allow us and Argentina to record everything that happened and what is happening; this can be shared with Spain. The communication of information is very easy with Spain, if one desires, it is very easy, and this can help. To have a case of determined facts which serves as tools for other cases is what I believe will happen.
That is, we should continue to build cases in this style all around the world, therefore, it will not be one capture order, and instead it will be 50 international capture orders. For example the international community, the nations, international justice in different countries should advance little by little closing the circle. Interpol is pretty concerned, as they called two or three times to know how this order of capture is to be carried out. Interpol places importance on this; Interpol said: we are focusing on two ex representatives of the Chinese government. The Foreign Ministry communicated with the Interpol, but Interpol must obey the order of capture and is doing it; the ruling has been sent to Interpol, all data is being communicated. I think that the Chinese government must have learned about this from the Interpol, it is most probably that they learned everything from there.
Q) When Spain issues the arrest order, it will be the second country; there are several orders of capture for the same persons in different countries, therefore, is there a necessity of a higher authority or a development of international laws due to these cases?
A) Hopefully, hopefully ... but no, no ... I don’t know if this will happen or not. What could probably happen is that as the arrest orders start to sum up, it would be a convincing factor for the international community that this is real, and that the knowledge that China is violating human rights is going to be known more universally.
That is, as this happens, there will be more capture orders and whose turn it is to emit the third one, if there is a desire to do this, there will be less problems. There will be also less difficulties for the fifth, less for the tenth, and this will go on adding up, and those arrest orders already issued will serve as precedents for more capture orders to come.
I want to remind you of the significance of the accumulation of this country, that country, another country recognizing that this is a crime and also looking for these people. Then why shouldn’t another country do the same too? I think this is what will happen most likely, before a higher authority or international authorities can unify. But if this would occur, it would be much more important, much better, however international law has its years of evolution; no, no, it is not too quick, it requires a lot, and the international law has too much, too much, i.e. too much political interference, I don’t know, maybe in 10 years, the CCP will collapse; or less, in five years, or less, in two years?
However, that China opens up to a democratic system, and let’s say, decides to subject the crimes attributed to the communist regime to the international community; yes, I think, this could happen.
Q) In this case, this lawsuit is going to break the ice. Will it be possible that China, with an open government sometime in the future, decide to accept the judgment of the crime committed under communist rule?
A) Yes, yes, this is what happened to Argentina, this is what Argentina did. Argentina was closed off with a dictatorship for several years and afterwards, little by little, because it was also not from one day to another, the possibility opened for the trying of the crimes committed at that time.
Argentina focused on the issue of human rights to punish the crimes which the military committed during the dictatorship. The specific effect of the crimes against humanity is to break the barriers which impede a crime from being tried.
Q) As a father, have you thought about that you leaving a legacy of principles for your children?
A) Yes, yes. When I think about what I will leave my children, although they are still very little, it is this lawsuit, it is a legacy about how one must comport in life, and they will understand the reason why I left the court and my resignation. I believe, in time, my children will see it as something important.
It was difficult for me to leave the court, because I loved what I did ... but the legacy, in effect, are two or three things more which have value if you are a human being, an internal important value, and, yes, they helped me, they helped me very much. I prefer to go; I have to leave or resign this way, in order not to give in or have to do a lot of things, things which I will regret doing, just to remain in the office.
Q) Do you have any other thoughts about the wider issues associated with this case?
A) One day I was thinking about this case and about what I said about the practitioners. Guess which example is for me the closest, in order to explain what the attitude I see in the practitioners? What we know about the first Christians is that those who persecuted them gathered them together in underground caves and crucified them, but they continued to persist in their religion until even a Roman emperor became a Christian.
That attitude is what I see today in the practitioners of Falun Gong, yes this… Could this be influencing the case? Yes, it could be. I’m not a practitioner of Falun Gong, have not read, and I told them I only want to know the minimum that is to know to keep me independent, but there is a very important resemblance, very , very important.
Q) Had you any fear in the course of investigating the case?
A) No, I have to say that in these four years, no one ever pressured me from the Chinese Embassy, the national government, never told me anything, except those two or three telephone calls with the Foreign Ministry, and nothing anymore, never. And the national government knew this , because I told them, I cleared it with the national government, I said, careful, there is this case, I am going to start the process, I am going ahead and this may bring some conflict to Argentina. This was in the federal justice, who has a lot of relation with the government, and it is right that I told them, I did not overlook this. I did this and I informed them: Look, this is an important issue, and, moreover, it is an important issue from the standpoint of human rights and for Argentina to continue to position herself as a country which guarantees human rights. But they did not pay attention to me; I could not believe this.
This case was well executed, it was done in an orderly way. We always took care to do things well objectively, to leave everything documented. The quantity of information and documentation that we prepared to go to the United States during the trip and afterwards, was so much that it was difficult to find someone to document it all. Everything is documented and that gives me a great peace of mind, knowing that things are done well, and that there is nothing about which you can say: No, that was badly done, that was forgotten. There is nothing which we can feel that we were wrong or that we were treading wrongly; we always were very sure, a little slow last year, but always sure.
Q) Did you know that universities are using your ruling as a study reference?
A) Many postgraduates use the ruling [from 2006] to study the principles of universal justice, because it is the only one about this subject. I feel embarrassed to tell the students that it was my ruling, or talk about it.
Q) Someone commented that you are very young to be a judge. How was your career?
A) Yes, in other countries, one starts this career later. I began my career 19 years old in the criminal court. I was there for 4 and half years more or less, and in 1993 I went to the Chamber of Criminal Appeals in Cassation.
Q) You were studying at the same time?
A) Yes, in 1994, I received my degree as lawyer, I continued to work in the Chamber until 2000 when I went to Spain. In returned in 2001and continued in the Chamber until 2005 when I went to the court.
Q) You went to Spain for study or work?
A) Yes, I went for postgraduate in criminal law.
Q) Where?
A) In Barcelona, a very beautiful place.
