Expert Commentary
The expert commentaries included on this website are important because as Ronald Dworkin aptly notes, a “judge needs a constitutional philosophy [or interpretative approach] to decide what the law is.” In other words, both the body of law and a constitutional or interpretative approach are essential to the effective practice of human rights law.
The commentaries included on the link below are but a part of an ongoing exploration of the practice of international law and of the interpretative approaches and philosophies that enable us to best meet the particular challenges we face as legal practitioners and, perhaps also, as judges.
Civil Disobedience’s Higher Law
Throughout history, tyrannical rulers and their ruling elites have engaged in egregious conduct recognized under commonly shared global values as shocking to the collective conscience of the world community, embodied in the norms of jus cogens.1 In the most salient historic cases of “atrocity crimes” or “crimes against conscience,” violence, propaganda, and the law have served as potent social mechanisms to facilitate regime-sponsored abuse. Hitler, the Hutu, and Slobodan Milosevic, for example, perpetrated atrocity crimes against targeted populations through dehumanization and objectification.
The Chinese Communist Party adopted Stalin’s prescription of violence, deceit, and law as the pillars on which the Party must rely to secure and maintain its power. Propaganda plays an essential role in conditioning Chinese minds to uncritically accept the Party as the sole authority for values and information. Mao directed that a campaign of killing and terror be executed every five to seven years against a selected group to intimidate China’s citizens into nonresistance. These campaigns included deceitful propaganda to demonize the victims as subhuman, socially dangerous threats to the security and stability of the Chinese Communist State. The propaganda also promoted and permitted the violent acts 2, as did the passage of laws justifying and legitimizing the otherwise unlawful arrest of members of selected groups or others who appeared to threaten the hegemony of hardline party rulers and their ruling elite.
Equally salient are the stories of men and women who have risked safety and liberty to speak out and expose the lies and deceit that undergird atrocity crimes, to defend members of marginalized groups, and in exceptional circumstances to sidestep the laws of the ruling regime. The Freedom Riders, the Abolitionists, and the supporters of Mahatma Ghandi, Dr. Martin Luther King, Jr., and Aung San Suu Kyi deliberately challenged “crimes against conscience” by relying on higher jus cogens norms that are binding on all nations and persons.
China – and Asia more broadly – produced men and women willing to sacrifice their liberty, their careers, and their well-being to challenge the perpetuation of atrocity crimes in their native lands, including the “atrocity crime” laws permitting these crimes. Such men and women include Gao Zhisheng and other Weiquan movement lawyers and activists in China.3 Despite the risk of being subjected to unlawful arrest and detention, Gao and his colleagues have exposed the lies and deceit promulgated by hardline members of the Chinese Communist Party. They have challenged the Party’s use of legal sanctions to facilitate atrocity crimes, sanctions that rely especially on vague and overbroad state security laws to silence and punish any apparent challenge the hegemony of the Communist Party state.4
Equally noteworthy are the many independent minded journalists, courageous Tibetans and Falun Gong practitioners in China, Tibet, and Taiwan who have exposed the lies and deceit that undergird and permit the indiscriminate murder, torture, and rape of persons targeted for persecution or eradication in China. While some have sent information abroad to ensure that foreign government and their leaders understand the unconscionable nature of the crimes and the toll of suffering the Party’s atrocities have inflicted upon them, others have exposed the Party’s lies and deceit to the Chinese people. Some, in an effort to prevent the occurrence of atrocity crimes in China, have even used signal-interrupting devices to broadcast material on the CCP-controlled television system to expose the lies and deceit that undergird atrocity crimes, defend members of marginalized group and, like Aung San Suu Kyi and her counterparts in history, challenge these crimes based on a higher law.
According to recent reports from China, dissidents including Chen Guangcheng, Teng Biao, Hu Jia, and Gao Zhizheng have been investigated and imprisoned for their civil and human rights advocacy. The arrest and detention of these dissents, based on allegations of endangering the national security of China, are further examples of how Chinese authorities use vague and overbroad laws to punish members of persecuted groups for their religious beliefs or acts of conscience. Members of persecuted group in China are subjected to sham trials and lengthy prison terms. 5 And when these acts are committed abroad, China lacks jurisdiction to prosecute. China might recall its own invocation of sovereign immunity principles to deter foreign courts and countries from investigating or litigating alleged crimes carried out by Chinese authorities.
Because the Chinese authorities operate in secret and do not afford due process, it is impossible to know which claims are based in fact. If the reports are credible, these dissidents are among the courageous few who have deliberately challenged the perpetration of “crimes against conscience” in China based on higher jus cogensnorms that prohibit atrocity crimes and which are binding on all nations and persons.
1 A jus cogens norm, also known as a “peremptory norm” of international law, “is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See Vienna Convention on the Law of Treaties [hereinafter Vienna Convention] May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679. The non-contingent nature of jus cogens norms is especially well exemplified by the principles underpinning the judgments of the Nuremberg tribunals following World War II. As Steven Fogelson observes in “The Nuremberg Legacy: An Unfulfilled Promise,” 63 S. CAL. L. Rev. 833, “[t]he legitimacy of the Nuremberg prosecutions rested not on the consent of the Axis Powers and individual defendants, but on the nature of the acts they committed: acts that the laws of all civilized nations define as criminal.” The doctrine of jus cogens is not predicated on the domestic or foreign policies of nations. These internationally recognized norms of conduct are peremptory to any treaty or agreement in contravention of them, and are the foundation of our legal and public order.
2 The propaganda operates as the mechanism without which the mass killing and violent assaults could not occur. As Peter Zvagulis notes in “Special to the Epoch Times,” July 7, 2005, in Yugoslavia against the Bosnians, in Rwanda against the Tutsi minority and, more recently, in China against Falun Gong, not only is the message always the same (destroy them or they will destroy you) but the name of the mass crime that follows is genocide or ethnic cleansing. As, Joseph Goebbels noted in his 1934 Nuremberg Rally speech (available athttp://www.calvin.edu/academic/cas/gpa/goeb59.htm, “[Germany] could only eliminate the Jewish danger in [their] culture only because the people [perceived it as such] as a result of [Nazi] propaganda.” This stratagem is also well illustrated by CCP instructions displayed on its China Anti Cult Association (CACA) website such as: “I say that we first define it as the terrorist. Then any measures are perfectly justified.” (Excerpted from Xinhua Net, a major CCP mouthpiece. See http://www.anticult.org/article.htm1?id=5431.)
3 For example, Liu Wei, Tang Jitian, Zhang Kai, Li Chunfu, Cheng Hai, Wang Yonghang, Teng Biao and Xu Zhiyong.
4 See Amnesty International, “China Urged to Free Human Rights Activist Jailed After Unfair Trial,” February 9, 2010 (“[Tan Zuoren’s] arrest, unfair trial and now the guilty verdict are further disturbing examples of how the Chinese authorities use vague and overbroad laws to silence and punish dissenting voices.”), available at http://www.amnesty.org/en/news-and-updates/news/china-urged-free-human-rights-activist-jailed-after-unfair-trial-20100209; Human Rights Watch/Asia and Human Rights in China, China, “’Leaking State Secrets’: The Case of Gao Yu,” July 1995 (finding that “state security” laws and regulations have allowed Chinese authorities “virtually unlimited latitude to suppress information” and have “often been used against individuals who have been involved in some form of dissident activity.”), available at www.hrichina.org/sites/default/files/oldsite/PDFs/Reports/HRIC-HRW_Gao-Yu-1995.pdf.
5 See Affidavit of Yongfeng Peng, Chinese legal expert, submitted to the Supreme Court of South Wales in support of plaintiffs in Jie Lin Li et al v. Zhou Yongkang, Case No. 2008/00288056 (stating, among other things, that it is “impossible” for Falun Gong practitioners “to receive any legal remedy or protection of law in China,” that the “legal system in China is completely under the control of the Chinese Communist Party,” that the Chinese Communist Party uses the legal system “to require courts to support the prosecution of persons alleged…to be members of the Falun Gong religion,” and that the All China Lawyer’s Association has “issued notices and guidelines to ensure that all lawyers in China support the CCP’s political agenda regarding Falun Gong believers in China”). This affidavit is available upon request.
Thoughts and Provocations on Human Rights and the Rule of Law
Perry Link, China’s Modern Authoritarianism: the Communist Party’s Ultimate Goal is to Stay in Power; Not to Liberalize, Wall Street Journal, May 25, 2009
“The Party’s top priority remains what it has always been: the maintenance of absolute political power. Economic growth has not sparked democratic change, as one-party rule persists. Through a sophisticated adaptation of its system — including leveraging the market to maintain political control — China’s Communist Party has modernized its authoritarianism to fit the times.”
Ronald Dworkin, Taking Rights Seriously in Beijing, 49 New York Review of Books, No. 14, Sept. 26, 2002
“[I]n my view, the human rights commonly recognized in Western democracies rest on two fundamental principles: first, that the fate of every living human being is equally important, and, second, that nevertheless one person has special responsibility for the success of each life—the person whose life it is.
The first principle, I said, forbids sacrificing some people for the sake of others or for the sake of the community as a whole, as any government does that arrests and tortures political opponents to intimidate others, or as the Chinese government has done in concentrating investment and wealth in its commercially important coastal cities to the neglect of the rural population which has not been allowed to share in China’s recent prosperity.
The second principle requires that government respect the rights that individuals need to direct their lives: the right, among others, to practice any religion freely, to speak their minds on matters of political and moral consequence, and to choose political positions and associates for themselves. China violates that second principle because it jails political dissidents, forbids any political activity outside the Communist Party, and persecutes the Falun Gong, a religious movement with no political aims but with a remarkable ability to organize mass meetings and demonstrations in defense of its religious practices.”
Ronald Dworkin, Justice Sotomayor: The Unjust Hearings, 56 New York Review of Books, No. 14, Sept. 24, 2009,
“Fidelity ot the law … cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.”
“[T]he authors of the abstract clauses [of the U.S. Constitution] almost certainly intended to say what their words naturally mean: they meant to forbid any law that denies equal status to all citizens, which is very different from forbidding any law they themselves thought denies equal status.”
“We share traditions, problems, and challenges with many other nations with similar cultures, and the fact that almost all of them have concluded that certain indvidual rights are of fundamental importance provides a reason, though of course not necessarily a decisive one, for us to suppose that it is of fundamental importance for us too. We should always carefully reexamine our own moral convictions when we find that no one else shares them.”
Andrea Bianchi, Serious Violations of Human Rights and Foreign States’ Accountability Before Municipal Courts, in Man’s Inhumanity to Man, 149-182 (2003)
“If sovereignty is regarded as a normative concept, the content of which is determined by international law rules, then it is hard to accept that conduct which runs counter to the very foundation of the system can be shielded from scrutiny by the rules of the same legal system.”
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