Immunity (Head-of-State)

• Author: International Law Group

Shortly before his visit to Chicago in October 2002, several practitioners of the Chinese spiritual movement Falun Gong (FG) filed a civil action in an Illinois federal court against the former President of China, Jiang Zemin, and the Falun Gong Control Office (FGCO). The complaint alleged torture, genocide and other human rights violations under the Alien Tort Claims Act, 28 U.S.C. Section 1350.

The FGCO is an office set up in 1999 within the Chinese Communist Party allegedly to suppress the FG. Founded in 1992 by former Chinese soldier, Li Hongzhi, the FG movement claims that it promotes a peaceful philosophy combining Buddhist teachings, meditation and martial arts.

The Chinese Government, however, considers the FG a subversive cult. In July 1999, President Jiang issued an edict outlawing FG. This edict was followed by mass arrests, allegedly farcical trials, torture, forced labor, "re-education," and the killing of members. Plaintiffs then moved ex parte for leave to serve Jiang in Chicago, in his own right and as agent for the FGCO. The district court granted the motion, and plaintiffs delivered the summons and complaint to a U.S. Secret Service officer stationed at Jiang's hotel. Neither Jiang nor the FGCO answered the suit.

After plaintiffs moved for a default, the U.S. government intervened pursuant to 28 U.S.C. Section 517 to vacate the service or, in the alternative, to assert Jiang's head-of-state immunity. The district court then dismissed the action (1) against Jiang based on head-of-state immunity, and (2) against the FGCO for lack of personal jurisdiction. Plaintiffs filed the present appeal. The U.S. Court of Appeals for the Seventh Circuit affirms.

The plaintiffs first argued that a head of state is not immune for violations of jus cogens norms of international law. The Court, however, is not persuaded. "The obligation of the Judicial Branch is clear - a determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff."

"Our deference to the Executive Branch is motivated by the caution we believe appropriate of the Judicial Branch when the conduct of...