Charges Of Genocide

Spiritual group's claim against Chinese reporter pending in Conn. court

Connecticut Law Tribune/February 13, 2012

Back in the 1990s, Zhao Zhizhen, the former head of a local television station in China, prepared a news report that would ultimately upset many people. The topic was the Falun Gong, a spiritual movement with ties to Buddhism and other religions.

Followers said the reporter held them in a not-so-positive light. In fact, the faithful maintained that Zhao called them demons and said their beliefs were a threat to society. They blame him, in large part, for a backlash that has included the Chinese government's banning of the Falun Gong and orturing and killing many followers.

And so the Falun Gong filed suit. Not in China, but right here in Connecticut.

The federal lawsuit claims the reporter is responsible for genocide in "aiding and abetting and conspiring to commit torture, crimes against humanity, and arbitrary arrest and detention," said attorney Terri Marsh, of the Human Rights Law Foundation in Washington, D.C., which is representing the Falun Gong.

Marsh filed the lawsuit under the centuries-old Alien Tort Claims Act, which enables international crimes against humanity to be litigated in the United States in certain circumstances.

Zhao's lawyer, Bruce S. Rosen, of McCusker, Anselmi, Rosen, & Carvelli in New Jersey, said the plaintiffs are attempting "to use U.S. law to hold Mr. Zhao liable for purported opinions he expressed in China that are generally available and completely legal in this country."

This week marks yet another chapter in the long-running case, with Rosen filing additional documentation in the U.S. District Court in New Haven to support his pending motion to dismiss the lawsuit.

Rosen explained that his client visited the United States in 2004 to attend his daughter's graduation from Yale University. He answered a knock on the door one morning where he was staying and, standing there in his bathrobe, was photographed and served with a lawsuit for genocide under the Alien Tort Claims Act.

"[Zhao] could've just left. He could've defaulted," said Rosen. "But he comes to the United States every few years. His daughter lives here and he didn't want to give anything up to the Falun Gong."

Rosen said the Falun Gong has routinely served notice for similar claims against Chinese government officials who are visiting the U.S. but that those actions have always been ignored by the officials. Sometimes, he said, the U.S. State Department intervenes, making it known to the judge that this is not the way they want U.S. and Chinese government relations handled.

"They've filed 17 or 18 of these lawsuits and this is the only one where someone actually answered," said Rosen.

Compassion Or Cult?

Falun Gong is a spiritual practice along the lines of Buddhism and Taoism involving yoga-like exercises and breathing techniques as well as philosophies designed around truthfulness, compassion and forbearance. It's a more recent phenomenon, introduced in 1992.

Critics like Zhao, however, simply describe it as a cult. It's been banned in China since 1999. Falun Gong's leader, Li Hongzhi, has lived in New York since 1998.

By the mid-1990s, Falun Gong had a huge following that included by Chinese military leaders who liked the exercises, Rosen said.

Around that same time, reporter Zhao received a letter urging him to look into Li, the founder. Zhao spoke with people who knew Li as a boy and young man, and came away with the opinion that he was a "charlatan," Rosen said.

Zhao's story, though, was initially shelved by the television station.

A few years later when the government became upset with Falun Gong followers after 10,000 members protested at a government complex in Beijing, Rosen said the government banned the practice and aired Zhao's footage.

"He's basically saying this is a cult and they give up their lives to follow their spiritual leader," said Rosen, who portrays his client as a respected journalist who specialized in science issues.

Meanwhile, attorney Marsh and her clients view it differently, claiming that the TV broadcast incited the torture of the Falun Gong in China. Marsh stated in court documents that its members were subjected to "regular beatings, electrocution with electric batons, sleep deprivation, sustained exposure to extreme cold, and forced viewings of [Zhao's] anti-Falun Gong propaganda, resulting in extreme emotional and mental harm."

"Defendant's propaganda efforts were specifically calculated to create a climate of hatred and violence necessary to bringing about the eradication of the belief in and practice of Falun Gong, including through the torture of its practitioners," said Marsh.

Marsh states in court documents that Zhao used the word "douzheng" in his report, which she says is a call to "eradicate" Falun Gong members in China. "The interpretation of key Chinese terms used in the context of persecutory campaigns in China is significant," Marsh said in an e-mail interview.

Though it's not clear exactly how many people were tortured and killed for being followers of the Falun Gong in China, The New York Times reported in 2009 that at least 2,000 lives have been lost.

Slow Moving

Since the lawsuit was filed nearly eight years ago, very little has happened since.

Rosen said a previous attempt at getting the case dismissed simply led to an opportunity for the plaintiffs to re-plead their claim in an attempt to provide a clearer link between what Zhao said on his broadcast and the violence that's occurred.

Rosen said his defense includes First Amendment claims. He said for the plaintiffs to prove their claim under the Alien Tort Claims Act, "you have to put people in imminent danger. That's why in the United States you can say just about anything without having a criminal consequence to it, and so they're saying what he's doing is hate speech."

"Nowhere does he say we need to kill these people now, torture these people now," continued Rosen. "Basically they're saying, 'you said all these things that created a hateful atmosphere,' that he used code words for kill or persecute."

Marsh said the First Amendment defense shouldn't work.

"Speech that actually aids and abets criminal conduct is not protected under U.S. law," said Marsh. "Speech that instigates and calls for mass campaigns of torture is not protected under international law or the law of the U.S."

Mark W. Janis, who teaches international law at the University of Connecticut School of Law and also serves as director of international programs, said the lawsuit was a plausible use of the Alien Tort Claims Act. But, like Rosen, he was quick to note: "We don't have the same sort of restrictions on hateful speech that other countries do when you're bringing that claim here."

Janis said for the plaintiffs to prevail in a U.S. court, they would have to somehow prove that speech "was directly linked to some sort of genocidal action."

"It would be really hard to demonstrate that if this guy is a journalist as opposed to a government official," said Janis, noting there's "a big divide" between a speech by a government official that leads to an atrocity, and a TV report by a private citizen.

"I don't think they're crazy for having brought the suit but would be rather surprised if they prevailed," said Janis.

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