Violations of International Criminal Law in the Suppression of Falun Gong

Journal of Political Risk, Vol. 10, No. 7, July 2022

Caylan Ford

ABSTRACT

In July 1999, the Communist Party of China launched a nationwide campaign to eliminate Falun Gong, a spiritual practice believed to have as many as 70 million adherents. Since that time, hundreds of thousands—if not millions—of Falun Gong practitioners have been detained without due process in prisons, reeducation-through-labour camps, detention centers, and “black jails.” Torture and other high-pressure methods are used to force adherents to renounce their beliefs, sometimes resulting in deaths, while official sources and state-run media agencies depict the group as evil and openly call for its “complete eradication.”

In response to the suppression campaign, Falun Gong adherents outside China have sought to invoke the concept of universal jurisdiction to bring charges against senior Chinese leaders alleging torture, genocide, and crimes against humanity. This essay assesses the claims of genocide committed against the Falun Gong by making reference to the Convention on the Prevention and Punishment of the Crime of Genocide, and jurisprudence of international criminal tribunals for Rwanda and the former Yugoslavia. It argues that while some aspects of the Falun Gong case are unique—such as the potential ambiguity of the group’s religious identity—the suppression of Falun Gong would likely satisfy the convention definition of genocide.

INTRODUCTION

In January 2021, the U.S. Department of State issued a statement designating China’s treatment of the Uyghur minority in Northwest China a “genocide.”[1] The Chinese Communist Party’s repression of the Uyghurs was not new, but beginning in 2017 it arched toward a new level of intensity, with reports of mass surveillance, forced sterilizations and sexual violence against Uyghur women, strict prohibitions on religious and ethno-cultural practices, and the mass detention of as many as one in twelve Uyghurs in forced labour camps, where some are reportedly tortured and subject to coercive reeducation.

The mass imprisonment, torture, forced labour, and coercive reeducation of Uyghurs almost certainly qualifies as “causing serious bodily or mental harm,” which is one of the acts enumerated in the 1948 Genocide Convention (“the convention”). The use of measures to prevent births within the group is also among the acts described in the convention, and this has occurred as well; in some locales as many as 15 – 34% of Uyghur women of childbearing age were reportedly scheduled for forced sterilization.[2]The greatest challenge in arriving at the genocide designation in this case lies in establishing the intent behind these actions. To qualify as a genocide under the convention, these acts must carried out with the specific intent “to destroy, in whole or in part, a national, ethnical, racial or religious group.” The intent to destroy can be credibly inferred from the Chinese Communist Party’s actions in Xinjiang, but the architects of Beijing’s policies in Xinjiang have not publicly state that this is their objective. Rather, they frame their actions as part of an effort to root out “extremism,” or to make loyal subjects of the recalcitrant Uyghur population.

Whatever the answer to the genocide question in Xinjiang, the gravity of the charge undoubtedly helped galvanize sympathy and support for the Uyghur people. It is therefore noteworthy that is no equivalent public discussion has occurred in relation to another potential genocide in the People’s Republic of China: the 23-year-long persecution against the Falun Gong religious discipline.

The persecution against Falun Gong is of a staggering scale, intensity, and duration, affecting tens of millions of citizens across every province of China. The crimes involved include, but are not limited to, extrajudicial killing, mass imprisonment, forced labour, and torture, with at least several hundreds of thousand victims. Moreover, the genocidal intent underlying the persecution can be much more directly established than in the case of Xinjiang[3]: the Chinese Communist Party, and its media organs, have repeatedly and publicly stated their goal as the “complete eradication” of Falun Gong, and established an extra-legal security agency for that express purpose. Yet, in over two decades, there have been almost no serious attempts among scholars or legal analysists to determine whether these crimes qualify as a genocide. This paper represents a preliminary attempt to answer this question, assessing the party-state’s persecution in light of the 1948 Genocide Convention and subsequent jurisprudence.

The first section provides an overview of the facts of the anti-Falun Gong campaign. It briefly describes the origins of the persecution; the policies, plans, and organizational structures put in place for its execution; and details a number of the abuses meted out against Falun Gong adherents.

The subsequent section deals with the mental element of genocide: the specific intent to eliminate an ethnical, racial, national or religious group in whole or in part. An extensive record of official speeches, policy documents, and editorials in the state-run press—accompanied by a pattern of widespread and systemic human rights violations—serve as proof that senior Communist Party leaders intended to eliminate Falun Gong in whole or substantial part. This section also addresses the nature of Falun Gong as a protected religious group for purposes of the convention.

Section three addresses the physical acts enumerated in the genocide convention, including (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; and (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Drawing on the relevant case law, this paper conclude that the atrocities committed against Falun Gong adherents in China are acts of genocide, committed with intent to destroy the group in whole or in substantial part.

FACTS OF THE PERSECUTION OF FALUN GONG

In July of 1999, the Chinese Communist Party launched a nationwide campaign to eliminate the Falun Gong religious practice. In the nearly two decades since, human rights monitors estimate that hundreds of thousands—and perhaps millions—of Falun Gong adherents have been detained without due process in prisons, reeducation-through-labour camps, black jails or psychiatric facilities.[4] Local authorities face intense pressure to forcibly convert Falun Gong adherents, leading to the widespread use torture in custody. Several thousand deaths have been reported by overseas sources. Moreover, as discussed below, a growing body of evidence indicates that large numbers of Falun Gong victims—likely numbering in the tens of thousands of people—have been killed to supply a lucrative trade in human organs.

The campaign against Falun Gong was unprecedented in contemporary China, representing the most significant instance of religious persecution since at least the Cultural Revolution of 1966-1976. An expansive number of crimes have likely been committed—including crimes against humanity and acts of genocide. And since the campaign has relied on mass mobilization of the citizenry, large numbers of Chinese nationals are potentially implicated in the commission, ordering, aiding and abetting, or incitement of the crimes. While it is beyond the scope of this paper to provide a complete summary of the alleged violations, this section aims to provide a general view of the origins, structure, and key features of the suppression campaign.

Background

Falun Gong is a religious practice involving meditation and a moral philosophy based on the tenets of ‘truth, compassion, and tolerance.’ It was first popularized in China in 1992, though its teacher Li Hongzhi suggests that Falun Gong’s practice methods and essential philosophy had been transmitted privately through a multi-generational lineage of masters and disciples.[5]Identifying as a practice of the Buddhist school, Falun Gong grew quickly in the 1990s, and was initially buoyed by support from government agencies that viewed it as a means of improving public health and morality. By 1999, government sources estimated that Falun Gong had attracted up to 70 million adherents.[6] Included among them were retirees, students, farmers and factory workers, but also intellectuals, judges, senior bureaucrats, and high-ranking Communist Party officials. In a state that does not tolerate independent civil society groups—let alone religiously oriented ones—this popularity came at a cost.

By the mid- to late 1990s, senior Chinese officials had become strongly divided on the Falun Gong question. Some argued that the group was peaceful, non-political, and should therefore be left alone. Others, particularly in the central security and propaganda agencies, viewed Falun Gong as a potential threat on account of its theistic beliefs, the number and demographic composition of its followers, its organizational capacity, and the fact that it had resisted co-optation and control by the state. These leaders aimed to curtail Falun Gong’s growth. Moreover, they actively looked for a pretext to crack down on the group.[7]

On the evening of the April demonstration, Communist Party Chairman Jiang Zemin wrote that Communist ideology must “defeat” Falun Gong.[9] In the weeks that followed, Jiang issued no fewer than 13 written policy directives calling for a crackdown.[10] The party leadership then devised an extensive plan for eliminating Falun Gong, which would unite the entire apparatus of the party-state.[11] On July 7, 1999, Jiang ordered the creation of a “Central Leading Group to Deal with the Falun Gong Problem.” This group was helmed by a member of the Politburo Standing Committee, and its deputies were drawn from the highest echelons of the Propaganda and Security Ministries.[12] Jiang described the group’s mandate as follows:

Upon its establishment, the [Central Leading Group] on Falun Gong shall take immediate actions to organize resources, track down the Falun Gong organizational structure throughout China, formulate a crackdown strategy, and be fully mobilized to break and wipe out Falun Gong. We shall not wage a war without preparations….The heads of Communist Party and of government at all levels in all regions must take responsibility and in accordance with the CCCCP’s requirements, implement this task in their own localities.[13]

The Party’s anti-Falun Gong policies are implemented by an extra-legal body colloquially known as the “610 Office,” named for the date of its creation on June 10 1999. The office was charged with overseeing the “complete disintegration” of Falun Gong, and had commanding control to direct the country’s judiciary, media, and police.[14] In addition to the central 610 Office, every province, prefecture, county, township and village in the country was ordered to establish their own 610 Office to carry out orders from the centre, which instructs them on how to propagandize against, monitor, detain, and forcibly convert Falun Gong adherents.[15] Promotions within government were tied directly to an officials performance in the anti-Falun Gong campaign, and Falun Gong adherents were purged from the ranks of the party and the bureaucracy.[16]

The suppression campaign

On 20 July 1999, security forces raided the homes of thousands of Falun Gong adherents nationwide and transported them to detention facilities. Two days later, China’s Ministry of Civil Affairs declared “Falun Gong organizations” to be illegal.[17] The Ministry of Public Security then issued a circular forbidding citizens from displaying Falun Gong messages or insignia, distributing Falun Gong books, assembling for the purpose of practicing Falun Gong, and protesting or otherwise resisting the ban.[18]

Within a week, two million Falun Gong books had been seized and destroyed.[19] Schools, work units, and neighbourhood committees were mobilized against Falun Gong adherents, pressuring them to denounce the practice.[20] Mass signature drives were common: local   authorities would boast of having secured 100,000 signatures or more from citizens in their area denouncing Falun Gong. In schools and workplaces, every pupil and employee was made to sign a statement attacking the group. If the targeted persons refused, they risked expulsion, loss of employment or wages, or were sent to reeducation centers. Communist Party members and government employees were compelled, on a recurring basis, to attend study sessions to criticize Falun Gong, and school children were similarly made to “struggle” against the group. Access to jobs, education, and housing became conditional on a person’s attitude toward Falun Gong—a requirement that persisted into recent years.[21] As a result, untold numbers of adherents have been forced into destitution, unable to fully partake in the social or economic life of their community.

During the first several years of the campaign, the country’s state-run press was saturated with anti-Falun Gong invective in what has been described as a “massive propaganda campaign.”[22] Daniel Wright and Joseph Fewsmith observed that “For several months after Falun Gong was outlawed… China Central Television’s thirty-minute evening news program aired practically nothing but anti-Falun Gong rhetoric in which academics, former followers, and ordinary citizens spoke about how the cult cheats its followers, separates families, damages health, and hurts social stability. The government operation has been a study in all-out demonization.”[23] In the first month of the campaign alone, the People’s Daily published over 300 articles attacking the practice. Falun Gong was presented as an existential threat to the party, the country, and the people, and was variously depicted as vermin or a cancer. The following statement from the state-run Xinhua News Agency is representative:

“The masses have bitterly hated this poisonous tumour in society for a long time. Consistent with public opinion, the Party and the government resolutely took a series of major measures and led the people of the whole country to carry out a determined struggle against the Falun Gong evil cult, and have achieved major victories….if we fail to take firm action against the Falun Gong evil cult and allow it to develop, the people, the families and the nation will no longer be able to enjoy peace.”[24]

Similar rhetoric pervades the education system. A widely distributed school textbook depicted the words “Falun Gong” literally dripping in blood; in some images, Falun Gong was personified as the grim reaper, leading children to their demise. The book’s introduction reads in part:

“The struggle against deviant religions is the same as other political struggles: it should be a mass struggle…When the masses are awakened, when they are mobilized, when they hate the [Falun Gong] cult to the bones, when they rise up and attack it, the cult will truly become a rat crossing the street. It will have no market, nowhere to hide itself, and only then will it be drowned out in the great sea of mass struggle.[25]” 

The suppression of Falun Gong aimed at the “complete eradication” (彻底铲除) of the group. This language has been reiterated frequently in government and party documents, in the state-run press, and in the speeches and statements of the political leadership. During a rare Communist Party Central Work Conference in February 2001, for example, each of the seven members of the Politburo Standing Committee were required to “testify in turn to the need to eradicate” Falun Gong.[26] According to the New York Times, the leadership “made it clear that they hope to crush the defiant Falun Gong movement altogether.”[27]  Xinhua News, the official mouthpiece of the Communist Party, declared “[T]o eradicate the Falun Gong cult will help create a harmonious and stable environment for the country’s socialist construction and benefit both the country and the people.”[28]  Another article proclaimed: “in order to safeguard social order and the interests of the people, the Falun Gong cult must be completely eradicated.”[29]

Soon, even private practice of Falun Gong meditation or possession of Falun Gong literature became grounds for extralegal imprisonment and torture.[30] In January 2001, the central 610 office reportedly “ordered all neighborhood committees, state institutions and companies” to detain Falun Gong practitioners and subject them to ideological reprogramming; no one was to be spared.[31] Concurrently, the Washington Post reported that central authorities had begun to officially sanction “the systematic use of violence against the group” as part of a “painstaking effort to weed out [Falun Gong] followers neighbourhood by neighbourhood and workplace by workplace”:

In January [2001], Beijing’s secret 610 office, an interagency task force leading the charge against Falun Gong, ordered all neighborhood committees, state institutions, and companies to begin using [brainwashing classes], government sources said. No Falun Gong member is supposed to be spared. The most active members are sent directly to labor camps where they are first ‘broken’ by beatings and other torture, the advisor said.

At the same time, Beijing is getting more efficient at forcing local officials to carry out its orders on Falun Gong. Internal polls conducted by the Central Party School show county-level officials placing a greater priority on eradicating the group…The 610 office also dispatches teams of investigators to check up on local officials, and a ‘proper attitude’ toward Falun Gong is now required for any promotion.

According to an unnamed government advisor, the official policy beginning in early 2001 was to use a combination of high-pressure propaganda, reeducation tactics, and torture in order to wipe out Falun Gong.[32]

By the 2010s, the cumulative number of detained individuals is estimated to have risen well into the hundreds of thousands, [33]making them the largest group of prisoners of conscience in the country and one of the largest categories of detainees in the reeducation-through-labour system (laodong jiaoyang 劳动教养, or laojiao 劳教). In 1999, when the campaign against the Falun Gong began, the laojiao population was approximately 310,000. By 2005, it had grown to 500,000, according to official statistics.[34] In 2007, the Ministry of Justice estimated that 400,000 people were serving administrative sentences of one to four years in 310 laojiao centres. By 2012, the official number of laojiao camps grew to 351.[35] Falun Gong adherents comprised a plurality of detainees in the camps. A 2009 report from Chinese Human Rights Defenders interviewed 13 former laojiao detainees; half of them remarked on the number and treatment of Falun Gong practitioners in the camps, noting that they represented “the largest group” and were singled out for punishment.[36] In a December 2013 report on the laojiao system, Amnesty International reported that Falun Gong detainees accounted for “on average from one third to in some cases 100 per cent of the total population” of the camps studied.[37] As noted by a 2005 report by Human Rights Watch:

The government’s campaign against [Falun Gong] has been so thorough that even long-time Chinese activists are afraid to say the group’s name aloud. One Beijing petitioner said: ‘Petitioners are usually locked up directly. But the worst is [she whispers] Falungong. They have terrible treatment, not like the others.’[38]

 Within labour camps, prisons, and reeducation centers, violence is used to “transform” the minds of Falun Gong believers. Transformation is described by the Congressional-Executive Commission on China as “a process of ideological reprogramming whereby practitioners are subjected to various methods of physical and psychological coercion until they recant their belief in Falun Gong”[39]—in other words, forced religious conversion. Labour camps and prison officials receive compensation for every Falun Gong practitioner who is transformed, and are punished or denied promotions if they fail to meet transformation quotas.[40]

Individuals are considered to have been successfully transformed when they sign statements promising to stop practicing Falun Gong, sever all connections with the group, condemn the doctrine and teachings of the practice, engage in self-criticism, and agree to cooperate with authorities. They may also be required to make videotaped statements denouncing Falun Gong, or to participate in the transformation of their former coreligionists, including by physically abusing them.[41] Such methods are apparently seen as effective ways to test the sincerity of the newly converted. Former Falun Gong detainees describe the process of forced conversion as a source of extreme anguish. As noted in a 2013 report by Amnesty International:

The greatest expressions of shame and mental anguish by Falun Gong practitioners…were associated with their recollections of having succumbed to the pressure and cooperated with the “transformation” process. Even more acute is the psychological shame and humiliation that some practitioners expressed in relation to participating in the “transformation” of other practitioners, to the extent that very few are willing to admit to their involvement in this or speak in detail about this experience.[42]

For Falun Gong practitioners who do not willingly submit to the transformation process, authorities employ increasingly severe physical torture against them. Common forms of torture include beatings, shocks with electric truncheons, crude or violent forced-feedings, simulated drowning, sexual humiliation and rape with foreign objects, injections with unknown pharmacological or psychotropic substances, and suspension by the limbs or being forced into stress positions, sometimes for days or weeks at a time. In addition, detainees encounter sleep deprivation, lack of access to sanitation, insufficient food, and denial of medical treatment.[43] As of 2008, Falun Gong sources had compiled over 63,000 individual reports of torture in custody, many of them specifying the precise circumstances of the torture and the names of the alleged perpetrators.[44] In the 2006 report of the UN Special Rapporteur on Torture, Falun Gong victims accounted for fully two-thirds of Chinese torture cases.[45] The combination of psychological pressure and physical torture causes severe and lasting harm in its victims, a portion of whom suffer long-term physical disabilities, mental collapse, or death following their release from custody.[46]

Among the first instances of death in custody to be documented in the Western press was that of Chen Zixiu, a 58-year-old former factory worker. As reported by the Wall Street Journal in 2000:

Ms. Chen was taken back into the room. After again refusing to give up Falun Gong, she was beaten and jolted with the stun stick, according to two prisoners who heard the incident and one who caught glimpses of it through a door. Her cellmates heard her curse the officials, saying the central government would punish them once they were exposed. But in an answer that Falun Gong adherents say they heard repeatedly in different parts of the country, the Weifang officials told Ms. Chen that they had been told by the central government that “no measures are too excessive” to wipe out Falun Gong. The beatings continued and would stop only when Ms. Chen changed her thinking.

The guards then forced Ms. Chen to run barefoot through the snow, at which point she collapsed and lost consciousness. Guards ignored the pleas of other inmates to take her to a hospital, and she died the following morning. Her family was called to claim the body:

Her calves were black. Six-inch welts streaked along her back. Her teeth were broken. Her ear was swollen and blue. … That day, the hospital issued a report on Ms. Chen. It said the cause of death was natural.[47]

Centrally coordinated transformation drives have been a recurring feature of the persecution campaign. In 2010, for instance, the central 610 office ordered a three-year strike-hard effort to intensify the forced religious conversion of Falun Gong adherents, requiring local officials authorities to enter villages, households, schools, businesses in search of Falun Gong practitioners to “transform” and “conquer.”[48] These directives were relayed and carried out in every province of China. Within labor camps and prisons, the new transformation quotas led to an intensification of torture and a spate of deaths. In one prison in northeast China, three Falun Gong practitioners were allegedly tortured to death in a two-week period after refusing to convert.[49] Among them was 47-year-old Qin Yueming. According to testimony from other inmates, Qin was beaten for days. Guards then administered a deliberately violent forced-feeding, during which the feeding tube may have punctured his lungs or esophagus. He died the next morning. Photographs of Qin’s body, taken surreptitiously by family members, show his torso covered in bruises, with dried bloods around his nose. Echoing the Chen Zixiu case, prison authorities reportedly told his family that he died of a heart attack; when family members tried to hold prison officials accountable, they were sent to labor camps themselves.[50]

As of 2021, Falun Gong sources have documented over 4,800 named individuals who reportedly died as a result of torture or mistreatment in custody.[51] As noted by Amnesty International, the reported figure may represent only a small portion of deaths resulting from abuse in custody, because not all families have the means to report deaths to overseas sources, and risk retribution for doing so.[52]  In many of these cases, killing may not have been the original objective of labour camp or prison authorities, but it was the reasonable and foreseeable result of torture and mistreatment and, more broadly, of central policies that sanctioned violence, dehumanized and called for the eradication of the victim group, and shielded the perpetrators from accountability.

In addition to deaths stemming from torture and mistreatment, there are also reports of large-scale medicalized killing, with state entities participating in harvesting the organs of Falun Gong practitioners to supply a lucrative transplantation industry.[53]

Several forms of evidence support this conclusion. Until recently, China did not have any organized system for organ donation and allocation, due in part to a strong a cultural preference to preserve the body in-tact after death. Of the approximately 120,000 organ transplants that occurred between 1977 and 2009, Chinese officials admitted that only 130 organ donations were voluntary.[54]  In 2010, when government authorities first announced their intention to develop a voluntary transplantation and distribution system, only 34 voluntary donations were recorded in the country of 1.3 billion.[55]

By that time, however, China’s transplantation industry had already been growing aggressively for a decade, becoming one of the largest in the world by number of operations performed. In the five-year period beginning in 2000, the number of Chinese hospitals conducting organ transplants tripled, according to Ministry of Health official Dr. Huang Jiefu. That corresponded to an 1,820% increase in liver transplant operations; a 1,100% increase in heart transplants; and 2,450% growth in lung transplants.[56]A 2020 study, which drew on hundreds of primary source materials, including government records and clinical reports, estimated that 14,000 organ transplants were taking place annually in just ten of the country’s 173 transplant centres.[57] Chinese medical authorities say the country is on target to perform 50,000 transplants annually by 2023 (by comparison, 40,000 transplants take place annually in the United States).[58]

The Chinese government has not offered any credible explanation for the source of organs used in transplant operations. In 2005, the Communist Party officially acknowledged that organs were being sourced from judicially executed prisoners convicted of capital crimes. But this explanation is insufficient: not all capital prisoners are candidates for organ donation, and there are several times more organ transplants taking place than there are death-row inmates.[59] Moreover, the trend lines between number of capital executions and number of organ transplantations run in divergent directions: whereas transplants volumes began to rapidly increase in 2000, the number of judicial executions started to decline in the same year. According to a 2016 report, the number of unaccounted for organ sources is in the tens of thousands per year.[60]

In the latter half of the 2010s, Chinese health officials were touting reforms to the organ donation system, claiming—albeit inconsistently—that prisoners were no longer used as a donor source in the civilian organ distribution system. However, data on voluntary organ donations from both the China Organ Transplant Response System (COTRS) and the Red Cross Society of China appears strongly to have been falsified, and contained unambiguously contradictory datapoints. Most strikingly, the claimed number of voluntary donations over time conformed almost perfectly to a simple quadradic formula, suggesting human manipulation.[61]

Even more anomalous than the sourcing question is the fact that organ transplants in China routinely take place on demand. For foreign transplant tourists wishing to bypass wait time of months or years, post-2000 China became a choice destination: not just kidneys, but hearts, livers, and lungs could be obtained in a matter of days. Dr. Jacob Lavee, founder of the heart transplantation unit at the Sheba Medical Centre in Tel Aviv, recalled one patient who, on the advice of his insurance company, was able to schedule a heart transplant with two weeks’ notice.[62] Until 2006, when accusations of organ harvesting from Falun Gong prisoners first emerged, Chinese transplantation hospitals routinely advertised price lists for organs, and promised the transplants could be performed within just days or weeks of booking.[63]  For this to occur, and to occur at scale, requires a large captive population of prospective organ ‘donors,’ who had been pre-screened and blood tested, and who are available to be executed on demand. An April 2022 study published in the American Journal of Transplantation shows that the victims of organ harvesting are, at least in many cases, still alive when their hearts are removed. Vivisection therefore becomes the method of killing, and doctors the perpetrators.[64]

In 2006, allegations emerged that Falun Gong adherents comprised the major source of China’s transplant organs. The persecution against Falun Gong began just six months before the organ transplantation sector entered an unprecedented growth phase. Hundreds of thousands of Falun Gong adherents were held captive in detention centres, black jails, prisons, and reeducation-through-labour camps; from 1999 until the middle of the last decade, they were both the largest and, in terms of treatment, the most vulnerable prisoner group in the country.[65] Since Falun Gong prohibits adherents from drinking, smoking, drug use, or other practices likely to compromise bodily health, they tend to be better candidates for organ extraction than other large prisoner categories. Former Falun Gong detainees have testifying that they were subjected to targeted medical exams in custody, wherein doctors would draw large volumes of blood, probe their organs or perform chest x-rays, but decline to treat any of the actual injuries or illnesses they may have sustained in custody.[66] In recorded phone calls with undercover investigators, the staff of several Chinese hospitals admitted to sourcing organs from Falun Gong adherents; one hospital administrator noted that this was done through coordination with the judiciary and police. Notably, some prominent organ transplant surgeons have had dual, official roles in the anti-Falun Gong campaign, and have publicly advocated for the group’s destruction.[67]

In 2018-2019, a tribunal comprising international jurists and scholars was convened in London to examine documentary and witness evidence of organ harvesting in China. The tribunal concluded beyond a reasonable doubt that “forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims,” and that “Falun Gong practitioners have been one — and probably the main — source of organ supply.”[68] The tribunal concluded beyond a reasonable doubt that crimes against humanity had been committed against Falun Gong, along the with acts enumerated in the Genocide Convention. The tribunal did not deem itself competent to pronounce beyond a reasonable doubt on whether the mental element of the crime of genocide was also met, though it heard expert opinions that this bar was more clearly satisfied in the case of Falun Gong than in the case of Uyghur Muslims. It concluded that  “there is a duty on those who have the power to institute investigations for, and proceedings at, international courts or at the UN to test whether Genocide has been committed.”[69]

THE MENTAL ELEMENT

Genocide is distinct from other international crimes in that it requires the perpetrators to have a specific intent (dolus specialis) to destroy an ethnical, racial, national, or religious group, in whole or in part.  This section will discuss the various components of the mental element of genocide, and consider how they might apply to the suppression of Falun Gong.

Intent to destroy

As originally devised by Raphael Lemkin, the term genocide was defined as:

A coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups.[70]

Although Lemkin understood genocide to entail both cultural and physical elimination, the drafters of the Genocide Convention deliberately limited the constitutive acts of genocide to include only the physical or biological targeting of members of the protected groups. As noted by the Semanza Trial Chamber, the travaux preparatoires shows that the drafters “unequivocally chose to restrict the meaning of ‘destroy’ to encompass only acts that amount to physical or biological genocide.”[71]

The planners and architects behind the persecution of Falun Gong explicitly sought to eradicate Falun Gong as a distinct entity. This is evident from hundreds of policy documents, directives, speeches, and editorials in state-run newspapers, some of which were described in the previous section. It is unclear whether the Communist Party leadership initially intended to destroy the group through acts of killing or inflicting severe bodily harm on individual Falun Gong adherents; if all members of the group willingly renounced the religion, it is possible that coercive measures, torture, and killings would not have occurred. But because Falun Gong believers resisted transformation, authorities soon resorted to increasingly severe measures to punish and re-educate recalcitrant followers, resulting in killings, severe bodily and mental harm, and possibly the imposition of conditions of life that would contribute to the group’s physical and biological destruction.

Proof of intent

In previous genocide prosecutions, the ad hoc tribunals noted that the existence of a plan or policy is not a necessary ingredient for genocide, but that it is “strong evidence of the specific intent”[72] and may “facilitate proof of the crime”.[73]

Unlike the genocides in Rwanda and the former Yugoslavia, the campaign against Falun Gong is accompanied by an extensive paper trail in which Communist Party authorities describe—often in extremely candid terms—their plans and policies to eradicate Falun Gong.[74] This includes the creation of a dedicated party agency, the 610 office, to oversee the “complete disintegration” of the group. The office was helmed by members of the Politburo Standing Committee, and penetrated into every province, prefecture, township and village in the country. For nearly 20 years the central 610 office sent regular directives to lower-level officials, as well as schools and workplaces, instructing them on how to monitor, imprison, re-educate, and propagandize against Falun Gong adherents for the purpose of eliminating the group.[75] In a leaked U.S. State Department circular from 2009—ten years after the persecution campaign began—an official in a Chengdu city police department stated that they received some 200 orders annually to crack down on Falun Gong.[76] Intent can also be established from the speeches and public declarations of officials who participated in the campaign, and statements in the official press, where Falun Gong is described as evil, cancerous, and as an “enemy” that must be “completely eradicated.”[77]

Even without such evidence, the ad hoc tribunals concluded that intent could be inferred from such factors as the scale and the nature of the atrocities committed, the number of group members affected, the use of derogatory language toward members of the targeted group; the systematic targeting of victims on account of their membership in the group, the general political doctrine that gives rise to the acts, and the methodical way of planning. [78] The Krstic Trial Chamber further stated: “attacks on the cultural and religious property and symbols of the targeted group […] may legitimately be considered as evidence of an intent to physically destroy the group.”[79]

All of these factors are evident in the suppression of Falun Gong: the group is subject to extreme and dehumanizing propaganda, including comparisons to vermin and cancer. Its religious texts and symbols have been attacked and destroyed, sometimes in public book burnings, and are forbidden from being displayed. The property of members has been seized and expropriated. Falun Gong adherents are barred from seeking many forms of employment, housing, and education; the suppression occurs amidst a general political doctrine that presents Falun Gong as an existential threat to the nation. Across the country, hundreds of thousands have been imprisoned in facilities where they experience psychological and physical torture, with some being killed. Having a large number of actual victims is not necessary to prove genocide—that would be to confuse the mens rea and the actus reus.[80] However, the extraordinary scale of the suppression and the number of affected individuals does serve as evidence of the intent to destroy the group in whole or in part.

For decision makers, intent can be proven based on their statements and the policies they enact. However, it may be more difficult to directly prove intent among front-line executants, such as labor camp or prison guards. This has led some to suggest that, for executants, knowledge of the general context and nature of the act should constitute proof of intent.[81]  In practice, the ICTR has employed such a standard, though not entirely without controversy. For instance, the Akayesu Trial Chamber writes that intent can be inferred “from the general context in which other culpable acts were perpetrated systematically against the same group, regardless of whether such other acts were committed by the same perpetrator or even by other perpetrators.”[82] The assumption is that executants have knowledge of the wider context of their crimes, and their knowing participation as part of a wider attack is evidence of their intent. Given the intensity and pervasiveness of the propaganda campaign against Falun Gong, the recurring struggle sessions in schools and work units, the hundreds of directives issued annually to police and other government departments to crack down on and eradicate the group, and the fact that promotions within the security services were explicitly tied to an officer’s performance in the anti-Falun Gong campaign, it is inconceivable that prison and labor camp officers are unaware of the broader context of their crimes.

In whole or in part

To qualify as genocide, the perpetrator must intend to destroy the group “in whole or in part.” Even the most ambitious architects of genocide can hardly hope to destroy a group in its entirety. In most cases, therefore, genocide involves the destruction of a group in part. The case law of the ad hoc tribunals and other commentaries provide guidance on how this can be interpreted.

Citing a 1985 report by the Sub-Commission on Genocide, the Trial Chamber in Kayishema and Ruzindana wrote that the wording of the Genocide Convention “would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership. Hence, both proportionate scale and total number are relevant.”[83]

The International Law Commission writes that genocide “requires the intention to destroy at least a substantial part of a particular group.” In Krstic, the Trial Chamber similarly wrote that the intent to destroy must concern “a substantial part” of the group, “either numerically or qualitatively.”[84] Further elaboration of this principle is found in the Jelisic Trial Judgement, where the Chamber concluded that genocidal intent “may consist of desiring the extermination of a very large number of the members of the group […] [I]t may also consist of the desired destruction of a more limited number of persons selected [i.e. leadership of the group] for the impact that their disappearance would have upon the survival of the group as such.”[85] In the Tolimir Judgement, the majority determined that the killing of three male community leaders in one enclave constituted an act of genocide, because their deaths would inhibit the group’s ability to reconstitute itself in that enclave.[86]

The planners of the campaign against Falun Gong explicitly described their intention to destroy the group in whole or in substantial part. Their own literature frequently calls for the “complete eradication” of the group, and in fact the party-state even seeks to marginalize and suppress Falun Gong communities outside its borders.[87] In official documents, central government authorities set targets on the number of known Falun Gong adherents to be “transformed” across the country, with quotas typically ranging from 60 – 100% in a given period.[88] If achieved, these directives would certainly result in the destruction of Falun Gong in whole or substantial part. And although any unrepentant Falun Gong believer is liable to face persecution, the Party places special priority on what it terms “leaders” or “core members” who are most essential to the group’s survival. This would include, for example, those who facilitate encrypted communications among Falun Gong believers; run underground printing presses to produce Falun Gong scriptures; or document and report on human rights abuses.

Religious Groups

The four protected groups under the genocide convention are “ethnical, racial, national, or religious.” Although the drafters considered including social and political groups, they ultimately chose to include only the four categories listed above, which are assumed to have a relatively stable character.[89]

On its face, the question of whether Falun Gong should qualify as a religion appears fairly straightforward. International human rights NGOs consistently classify it as a religion, as do governments and UN agencies.[90] Scholars of Chinese history and religion say that Falun Gong is “profoundly religious”[91]: it claims a Buddhist lineage, includes rigorous precepts for moral conduct, espouses a belief in Gods and spiritual realms, and involves a systematic program of exercises and meditation meant to affect moral growth and inner purity.

However, the classification of Falun Gong as a religion has been disputed at different times by the group itself and by the Chinese party-state. The following section examines the cultural and historical context surrounding the emergence and classification of Falun Gong, and considers how religion might be defined for purposes of the convention.

Defining protected groups

The Genocide Convention does not contain a precise definition of a religious group, and neither is religion clearly defined in international law. The case law on genocide does little to clarify the issue: in Akayesu, the ICTR stated simply “The religious group is one whose members share the same religion, denomination or mode of worship,”[92] and in Kayishema and Ruzindana,the Trial Chamber wrote “a religious group includes denomination or mode of worship or a group sharing common beliefs.”[93]

Using these broad definitions, Falun Gong should be considered a religion. But according to the ad hoc tribunals, the travaux préparatoires of the Convention suggests that the drafters intended for it to apply only to groups that were relatively permanent and involuntary. In Jelisic, the Trial Chamber found that the drafters of the convention sought to limit its applicability to stable groups “to which individuals belong regardless of their own desires”[94] In the Akayesu judgment, the ICTR similarly found that the travaux préparatoires indicates a wish to include only “‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups.”  The Chamber went on to say that “membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.”[95]

From these readings of the preparatory works, the drafters of the convention may not have meant to include groups like Falun Gong under the umbrella of religion: given that the practice has only been taught publicly since 1992, it is a religion of choice, rather than of birth, for the vast majority of its adherents. Moreover, while the practice of Falun Gong does entail obligations on the part of adherents (e.g. to follow its moral precepts and cultivate one’s character, regularly practice meditative exercises, study its teachings, and to “speak the truth” about the practice or to evangelize), its spiritual leader Li Hongzhi notes repeatedly that the decision to become and to remain a Falun Gong adherent must be freely chosen.[96]

But while the drafters of the Genocide Convention intended to limit its applicability to stable groups, they also acknowledge that individuals can change their religion or nationality, albeit not as easily as they could change their political opinions.[97] That they chose to include religion anyway suggests an acceptance that religious beliefs could be voluntarily chosen. Another salient point is that many Falun Gong adherents tend to be highly devout and committed to their spiritual practice—so much so that they refuse to recant their beliefs even under threat of torture or death. As noted in the preceding section, the act of renouncing Falun Gong—even insincerely—is often source of deep mental anguish and shame. In that respect, Falun Gong is hardly analogous to ‘mobile’ social, economic, or political groups.

Most importantly, the ordinary meaning of the Convention is clear: religions are a protected group.[98]  If Falun Gong satisfies the generally accepted definition of a religion, then it is a religion for purposes of the genocide convention as well.

The Tribunals also allude to the other criteria for assessing whether a given group is protected by the convention. As noted by the Rutagana Trial Chamber, “in assessing whether a particular group may be considered as protected from the crime of genocide, [the Chamber] will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political and cultural context.”[99] In Semanza, the ICTR writes: “the determination of a protected group is to be made on a case-by-case basis, consulting both objective and subjective criteria,” which includes the perception of the perpetrators.[100]

What follows is a discussion of the subjective and objective facts surrounding Falun Gong’s classification as a religion, including the relevant political and cultural context.

Categorizing Falun Gong

Following its public introduction in China, Falun Gong was initially classified as a form of qigong. Qigong—sometimes called Chinese yoga—is usually characterized by slow-moving exercises, regulated breathing, and meditation.

For centuries, qigong-like techniques were employed by Daoist and some Buddhist practitioners as a means of achieving spiritual transformation, and were transmitted orally through generations of masters and disciples. In the Maoist era, however, the overtly religious or theological aspects of qigong were downplayed or cast off, as theistic beliefs were verboten. To survive in the new political climate, qigong was re-classified as a branch of Chinese medicine.[101] Stripped of their religious content, qigong practices were permitted to flourish in China under the supervision of the state. By the early 1990s, tens of millions of people were practicing qigong.[102]

This is the context in which the Falun Gong made its public debut. In 1992, Master Li Hongzhi began holding seminars to disseminate Falun Gong. The practice quickly rose to prominence within the qigong community, and with the approval and encouragement of government agencies, it soon attracted tens of millions of adherents.[103] Falun Gong’s popularity could be attributed in part to its low or non-existent fees to and its reputed efficacy in improving health. It was also unique for other reasons: its teachings stressed that the pursuit of health cannot be divorced from individual moral rectitude and the nurturing of virtue. According to Li, the true purpose of qigong was not merely better health, but spiritual perfection or enlightenment.[104]

Falun Gong’s is a moral and well-ordered universe. At the heart of its philosophy are the tenets Zhen-Shan-Ren — truth, compassion, and forbearance. These values represent the essential nature of the universe, the ultimate expression of the Buddhist Law, or the Dao.[105] The adherent of Falun Gong seeks assimilation to these virtues through improving his or her moral character (xinxing) while relinquishing worldly desires and attachments, such as to wealth, fame, lust, jealousy, and other expressions of selfishness.[106] Through disciplined moral cultivation, the student aims to return to the “original and true self.”[107] In addition to its moral code, the practice involves an extensive body of scripture and a systematic program of spiritual exercises and meditation rituals. Its teachings discuss otherworldly realms and the existence of gods other, higher lives or forces. The ultimate goal of the practice is transcendence of the mortal world, enlightenment, and reconciliation with the divine. According to Benjamin Penny, a professor of Chinese religion at the Australian National University, Falun Gong is “in all meaningful ways, a religion.”[108]

Falun Gong’s theological bent was not lost on Chinese authorities. Although the state initially supported the practice, by the mid-1990s some influential party members were growing wary of its popularity, with some detractors suggesting that Falun Gong was not merely qigong, but in fact a sort of disguised religion. In 1996, Falun Gong’s registration with the state-run qigong association was officially ended. In a letter explaining the decision, the association stated that although Falun Gong had produced “unparalleled results in terms of fitness and disease prevention,” Li Hongzhi “departed from the correct aims” of qigong by propagating “theology and superstition.”[109]

The charge that Falun Gong was a covert religion was not mere semantics; it had potentially serious political consequences. The Chinese government only extends legal protection to five “patriotic” versions of Buddhism, Daoism, Islam, Protestantism and Catholicism, all of which are subject to the doctrinal and administrative control of the Communist Party.[110] Even these approved religious face restrictions: they are not permitted to proselytize, for instance, whereas ostensibly non-religious qigong practices were free to assemble and preach with minimal interference. Religious believers who do not submit to the state—including underground Christians, Catholics loyal to the Vatican, or worshippers of the Dalai Lama—are liable to be suppressed. Therefore, as it was being popularized in the 1990s, Li Hongzhi emphatically declared that Falun Gong was not a religion. To do otherwise in the political climate of modern China would be to invite immediate suppression, and would have constrained efforts to publicize the practice.[111]

There is one other critical reason why Falun Gong eschewed the religious label. The Chinese term for religion (zongjiao) refers only to institutional faiths with churches or temples, a professional monastic class or clergy, rituals, sacred texts, etc. The word itself a neologism that appeared the late 19^th century following an influx of Christian missionaries; in imperial China, the demarcation between the secular and spiritual realms was considerably less rigid.[112] Numerous expressions of religious faith or practice are therefore not captured by the term zongjiao.  As Penny notes, “by any reasonable definition of what constitutes ‘religion’ or ‘religious activities,’ the definition of religion promulgated by the Chinese authorities is too narrow.”[113]

Falun Gong lacks most of the features of an institutionalized religion. Although it has a body of scripture, it does not have any system of membership, formal hierarchy, places of worship, or tithing. Under the narrow definition of zongjiao, therefore, Falun Gong did not consider itself to be a religion.[114]

In international human rights law, a group’s self-understanding carries considerable weight. This is especially true in the area of indigenous rights, though subjective self-identification is also relevant for other protected classes such as religious or ethnic groups.[115] From this perspective, the fact that the Falun Gong community has historically rejected the religious label could be problematic. However, this is a rejection only of the politically loaded Chinese term, zongjiao, which refers only to a subset of institutional faiths. In the West, Falun Gong adherents have grown comfortable defining themselves as a religion, and the practice’s spiritual authority, Li Hongzhi, has signalled approval of this shift.[116]

Having addressed Falun Gong’s self-perception, it is also important to consider the Chinese party-state’s understanding of Falun Gong. Because the Genocide Convention requires a specific intent to destroy an ethnic, national, racial or religious group, the perpetrator’s subjective perceptions is relevant in assessing whether genocide has occurred.

In this case, the Chinese party-state has emphatically declared that Falun Gong is not a true religion, but instead a “heterodox religion” (xie jiao) that deserves to be eradicated.[117] The term xiejiao is often rendered in English as “evil cult”—a misleading translation, but one that was likely chosen to “intimate sinister motivations that would seem to justify crackdowns” on such groups.[118] Since imperial times, the xie jiao label has been applied to a number of unauthorized religions. The term does not necessarily signal that a religious belief is inauthentic or ineffective.[119] Instead, it describes religious teachings that the authorities disapprove of, or that do not support and sustain imperial rule.[120] Both Catholicism and Buddhism have, at various times in Chinese history, been attacked as xie jiao.[121]

However, even if Falun Gong does not fit the definition of an institutionalized or politically orthodox religion, Chinese leaders were fully aware that it is a system of common spiritual beliefs and practices. As mentioned in the previous section, in 1996 government agencies began accusing Falun Gong of propagating “theology.” In April 1999, while discussing whether to implement a ban on Falun Gong, the Chinese Premier described the practice as having a “religious patina.”[122] Soon thereafter, the Political Department of the People’s Liberation Army described Falun Gong as a “qigong organizations with a religious coloring,” and thereby forbid military men and their families from practicing it.[123] In June of 1999, the General Office of the Chinese Communist Party Central Committee called on provincial authorities to “assess and critique Falun Gong’s avocation of theism.”[124] When the crackdown finally began, party organs declared that Falun Gong was fundamentally incompatible with Marxism and dialectic materialism on the basis that it propagated theism, preached the existence of gods and supernatural phenomenon, and aimed for transcendence of worldly pursuits.[125]

Finally, whether or not the Chinese government views Falun Gong as an evil or orthodox religion, states do not have the sole prerogative to determine what is or is not a genuine religious belief. In General Comment No. 22 on the application of the International Covenant on Civil and Political Rights, the Human Rights Committee states:

The terms “belief” and “religion” are to be broadly construed. Article 18 [of the ICCPR] is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.[126]

By most objective criteria, Falun Gong is a religion, albeit not an institutionalized one. The religious nature of Falun Gong has been recognized by academic experts, NGOs, and government bodies. Human rights jurisprudence in the United States and Canada has treated Falun Gong as a protected religion or religious creed,[127] and it is recognized as a religious group for the purpose of refugee status assessments.[128] And despite their rejection of the zongjiao label, Falun Gong adherents also describe their practice as a religious faith that forms a core part of their identity. Finally, from a subjective perspective, the Chinese Communist Party may call Falun Gong a heretical religion, but even this critique recognizes the religious or “theistic” character of the group. Thus, for the purposes of a genocide prosecution, Falun Gong should be considered a protected group.

THE ACTS

This section describes the constitutive acts of genocide based on existing jurisprudence, and contemplates how they might apply in the case of Falun Gong. For purposes of this analysis, this paper focuses on articles (II)(a), (b) and (c) of the genocide convention.

Killing members of the group

Killing represents the ultimate act of physical destruction. Among the five constitutive acts of genocide, it is also the most self-explanatory. In the process of drafting the Genocide Convention, the formulation “killing members of the group” was adopted “after little discussion and without a vote.”[129]

Although the meaning of the act is fairly unambiguous, the ad hoc tribunals do provide some further guidance on how it can be interpreted. In Akayesu, the Trial Chamber noted that acts of genocide “must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group.”[130] The Semanza Trial Chamber similarly noted that the act involves intentionally killing “one or more members of the group, without the necessity of premeditation.”[131] As noted by the Kayishema and Ruzindana Trial Chamber, for the purposes of the Genocide Convention killing should be interpreted to mean “unlawful, intentional killing.”[132] A definition of this term is offered in Akayesu, where the Trial Chamber defines “unlawful, intentional killing of a human being” to mean the following:

1. the victim is dead;
2. the death resulted from an unlawful act or omission of the accused or a subordinate;
3. at the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victim’s death, and is reckless whether death ensures or not.[133]

For its part, the ICC writes: “the term killed is interchangeable with the term ‘caused death.’”[134]

Applicability to Falun Gong

As noted in the previous section, the campaign against Falun Gong has resulted in numerous deaths stemming from torture and abuse in custody. Upwards of  4,800 cases have been documented, a large number of which specify the date, place, cause of death, and the perpetrators involved. As noted in a previous section, due to the difficulties involved in reporting deaths to overseas sources, this figures may represent only a small portion of actual deaths.

Based on a review of persecution testimonials, it is likely that many of the torture-related deaths of Falun Gong adherents were not premeditated. For example, labor camp guards might have intended to cause severe bodily or mental harm with the goal of “transforming” the target and thereby furthering the goal of eradicating Falun Gong, but did not necessarily set out to kill them. However, the definition of killing as an act of genocide does not require premeditation for the underlying act. Recalling the Akayesu Trial Chamber, killing only requires that the victim is dead; that the death resulted from an act of omission or the accused or a subordinate; and that the accused or a subordinate “had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victim’s death, and is reckless whether death ensues or not.”[135] The vast majority of documented cases of Falun Gong deaths would clearly satisfy these criteria, as deaths were a reasonable and foreseeable result of torture. The possible exceptions are the very elderly or infirm, where it may be more difficult to prove that the acts of the accused were the proximate cause of death.

Killing via organ harvesting is another example of intentional killing, though in some cases it may prove challenging to assign individual criminal responsibility to the surgeons involved insofar as they were unaware of the religious identity of the victims. Being unable to link their actions to the intent to destroy the group, these doctors would not have the specific intent necessary for genocide, or even for an extended form of liability as part of a joint criminal enterprise.[136] Nonetheless, there is good reason to believe that some surgeons are aware of the identity of their victims. The China Tribunal heard evidence of transplant surgeons openly discussing the harvesting of organs from prisoners of conscience.[137] Some have even held dual roles in the anti-Falun Gong campaign and publicly agitated for the group’s destruction. Zheng Shusen, one of the leading members of the Chinese organ transplant establishment, simultaneously served as the chairman of the Zhejiang province Anti-Cult Association, a Communist Party-affiliated body dedicating to the vilification of Falun Gong.[138] In a 2009 book, the surgeon wrote: “‘Falun Gong’ and similar evil religions are like viruses corroding the organism of humanity, warping the souls of believers, destroying social order, disrupting economic development, and have become a public nuisance to mankind and a cancer on society.”[139]

Another question arises over the motives of the surgeons. Consider a scenario where a transplants surgeon is aware of the provenience of the organs used for transplant, and is also aware of the broader political context wherein Falun Gong is targeted for eradication. The surgeon participates in the killing of Falun Gong adherents with knowledge that their actions would contribute to the destruction of the group, but were themselves motivated chiefly by the prospect of professional or financial gain. The Jelisic Appeals Chamber addressed this question, noting that the existence of personal motives was “irrelevant” in criminal law. The Chamber said it was necessary “to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide.”[140] The Kvocka et al. and the Kunarac et al Appeal Chambers reached similar conclusions, finding that in cases of rape and sexual violence, an accused’s sexual motive for committing the acts did not mean that they lacked the requisite intent for the extended crime as well.[141]

In cases where a perpetrator lacks the specific intent to destroy Falun Gong, the killing of Falun Gong adherents for purely personal motives would likely still qualify as a form of liability under the extended form of Joint Criminal Enterprise. This would apply where the perpetrator commits a crime for a reason beyond the “common purpose” (i.e. eradication of the group), but where the natural and foreseeable consequence of the crime nevertheless advances that purpose. The Djordjevic Appeals Chamber, for instance, held that “an accused can be found criminally liable under the third category of joint criminal enterprise for specific intent crimes, provided that the crimes were reasonably foreseeable to the accused.” In other words, even if the surgeon himself was agnostic about the fate of Falun Gong as a distinct religious entity, his participation in the killing with knowledge that he is contributing to its destruction would be sufficient under the third category of joint criminal enterprise.[142]

Causing serious bodily or mental harm to members of the group

Although the drafters of the Genocide Convention chose explicitly to include only the biological and physical aspects of genocide, the crimes covered by Article II(b) of the Convention do not necessarily lead to death, or even to permanent damage. As noted by the Krstic Trial Chamber, serious bodily or mental harm “need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation.  It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.”[143]  This view was further affirmed in Akayesu, Semanza, Kayishema and Ruzindana, Rutaganda, Tolimir, Bagosora, and others.[144]

Examples of serious harm listed by the Krstic Trial Chamber include “inhuman treatment, torture, rape, sexual abuse and deportation.”[145]  In Kayishema and Ruzindana, the ICTY defined it as harm that “seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses.”[146] The Akayesu Trial Chamber wrote that serious bodily or mental harm could include “acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution.”[147] In Tolimir, it was understood to include, inter alia, “acts of torture, inhumane or degrading treatment, sexual violence including rape, beatings, threats of death, and generally harm that seriously damages health, causes disfigurement, or causes serious injury to members of the group.”[148]

The ICC was clearly influenced by the ad hoc tribunals in its definition of serious bodily or mental harm, which “may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.”[149]  Beyond these broad definitions, however, no objective criteria exist to assess the extent of harm required; instead, the Kayishema and RuzindanaTrial Chamber concluded that it should be assessed on a case-by-case basis, using a “common sense approach” and relying on the relevant jurisprudence.[150]

With respect to mental harm, there has been some debate over its definition. In drafting the Genocide Convention, the concept of mental harm was meant to refer to the use of narcotics designed to impair the mental faculties of the target population. This has led some commentators to adopt an exceedingly narrow definition of mental harm, limiting it to harm that causes “physical injury to the mental faculties”[151] or harm induced through the use of narcotics.[152] However, as noted by William Schabas, these views are not supported by the text of the convention, nor even by a careful reading of the travaux preparatoires.[153] Subsequent jurisprudence in the ICTY and the ICTR supports the view that severe mental harm includes emotional or psychological anguish that is sufficiently severe so as to contribute to the destruction of the group, e.g. by preventing members from leading a normal and constructive life.[154]

In cases of sexual violence and rape, the Akayesu Trial Chamber noted that Tutsi women were “subjected to the worst public humiliation, mutilated, and raped several times, often in public…and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities.” The Chamber described sexual violence as one of the worst ways to inflict harm, in that the victims suffer both physically and mentally.[155] Serious mental harm can also result from extreme trauma, irrespective of whether any significant physical harm actually occurred. In the ICTY, for instance, the Krstic Trial chamber noted that the mental trauma experienced by the survivors of mass executions of the Srebrenica massacre constituted serious harm.[156] The threat of death may itself cause serious mental harm: the Akayesu Trial Chamber concluded that death threats—issued in the context of an interrogation and beating—produced serious mental harm.[157] In Tolimir, the transfer of women and children from the Srebrenica and Žepa enclaves, and their separation from male family members with the knowledge that the men may be murdered, was found to rise to the level of severe mental harm.[158]

Applicability to Falun Gong

In view of the relevant case law, the acts committed against Falun Gong adherents should qualify as severe mental or physical harm. As noted in a previous section, reports of widespread torture in detention facilities, laojiao camps, prisons, and psychiatric hospitals began to emerge soon after the crackdown on Falun Gong began in 1999. By early 2001, the Chinese Communist Party was officially sanctioning the systematic use of violence against Falun Gong adherents in detention, and as of 2008, Falun Gong sources overseas had collected over 63,000 discrete, detailed reports of torture in custody, spanning every Chinese province. Given the number of these reports, it is difficult to represent the full range of victims experiences, but it nonetheless instructive to point to some representative examples. One case, reported by the Washington Post near the outset of the campaign, described the treatment meted out to 35-year-old “James” Ouyang:

At a police station in western Beijing, Ouyang was stripped and interrogated for five hours. “If I responded incorrectly, that is if I didn’t say, ‘Yes,’ they shocked me with the electric truncheon,” he said.

Then, he was transferred to a labor camp in Beijing’s western suburbs. There, the guards ordered him to stand facing a wall. If he moved, they shocked him. If he fell down from fatigue, they shocked him.

Each morning, he had five minutes to eat and relieve himself. “If I didn’t make it, I went in my pants,” he said. “And they shocked me for that, too.”

By the sixth day, Ouyang said, he couldn’t see straight from staring at plaster three inches from his face. His knees buckled, prompting more shocks and beatings. He gave in to the guards’ demands.

For the next three days, Ouyang denounced [Falun Gong’s] teachings, shouting into the wall. Officers continued to shock him about the body and he soiled himself regularly. Finally, on the 10th day, Ouyang’s repudiation of the group was deemed sufficiently sincere.

“I am a broken man,” he told journalists following his release.[159]

Another testimony comes from Jia Yahui, who was abducted in Beijing and sent extrajudicially to a laojiao camp in 2008. She described one of several protracted torture sessions as follows:

They took me to a room on the second floor and handcuffed me to the metal frame of a bunk bed. My legs were tied to the bottom portion of the bed, my body was bent forward, and arms stretched and tied to the upper portion on the opposing side of the frame. It’s hard to describe the pain of being stretched and suspended in this position—it tested the limits of the human capacity to forbear. 

Then, while I was still tied up in that stress position, they started shocking me with the electric batons. They would target sensitive areas, like the inner thighs and the waist. My skin started blistering wherever they shocked me; the blisters reminded me of the time I accidentally touched a lit cigarette butt as a child. To this day, the scars have not healed. I could feel the current pulsing through my entire body, coursing through my nerves. I was shaking uncontrollably. The guards would keep shocking me in the same place for 10 or 20 minutes at a time. It lasted for several hours.[160] 

After their release from custody, many Falun Gong adherents have reported that they continued to suffer long-term physical injury, disfigurement, or partial paralysis as a result of mistreatment and torture, impeding their ability to live normal and constructive lives, or resulting in premature death in the months or years following their release. Among the more jarring images leaked to overseas sources are of Falun Gong adherents who emerge from prisons or labour camps severely emaciated, with visibly protruding skeletal structures, who were to unable to walk or eat. Some of these individuals died soon after their release.[161]

There are, furthermore, numerous reports of Falun Gong believers suffering mental collapse during their imprisonment and reeducation, leaving them unable to care for themselves. Chen Gang, a Falun Gong adherent who escaped to the United States following his imprisonment, described witnessing several other Falun Gong detainees experiencing mental breakdowns: “I witnessed six such cases, including my friend Zhu Zhiliang, an engineer with a Master’s degree. He became delirious and could not recognize his parents and wife, and talked nonsense after he came out of the brainwashing labor camp.”[162] Another suchcase, corroborated by a Falun Gong human rights monitor in the United States, was that of a young woman named Zhu Xia. Following her release from a brainwashing centre in Xinjing County, Sichuan province, she was returned to her family suffering hallucinations and terrors, and was no longer capable of living independently:

[She] cries, laughs, and often bangs on doors and windows madly. She soils her clothing uncontrollably, and has frequent hallucinations, tossing and turning restlessly … At night Zhu often throws her arms around her head defensively, screaming “Are you going to rape me?” She has removed her blankets to sleep in the cotton fibers of her mattress and often curses “those terrible men,” muttering she “can’t take it anymore.”[163]

Falun Gong practitioners are also subjected to injections with unknown pharmacological substances, some of which induce states of delusions or psychosis, while others apparently inhibit the appetite and cause difficulty sleeping. A 2013 report by Amnesty International included interviews with several former Falun Gong detainees who described the administration of unknown drugs. As described by one woman, “The kind of pain I felt, I can’t use words to describe it. I felt totally desolate. The drugs they gave me destroy your mental state. I didn’t want to live — that kind of pain is deep inside you, in your gut. My head was constantly dizzy. I lost all hope of living.”[164] Another account was provided by Liu Guifu, a Falun Gong practitioner from Beijing who was twice imprisoned in laojiao camps and tortured:

“As soon as I arrived at the camp the second time they prevented me from sleeping. I was tied to a stool, not allowed to go to the bathroom, and not allowed to drink water. I was forced to sit for so long that the skin on my rear end became all rotten. If I moved even the slightest bit they would beat me….The baojia forced faeces and toilet water into my mouth. I started to have worms in my hair from not showering. I came to realize they were putting drugs into my food, and this went on for a long time. The drugs made me lose consciousness, and I became delusional. My legs swelled up painfully and I felt nauseous and threw up frequently. … For the four months prior to my scheduled release date I was unable to sleep.[165]

The use of these narcotics, whose precise purpose is unknown, is notable in light of the drafting history of the Genocide Convention, where the inclusion of “serious bodily and mental harm” was first discussed in the context of biological experiments and the use of narcotics.[166]

As already noted, the process of forced religious conversion itself is also a source of extreme mental anguish, the pain of which is amplified when individuals are forced to participate in the “transformation” of others, or risking further torture. Finally, the threats made against practitioners in custody may also be categorized as causing severe bodily or harm. In RTL and other detention facilities across China, Falun Gong adherents report being told by guards that their deaths would be treated as suicides and that no one would be held accountable. According to a report by Amnesty International, “Many former practitioners also reported that RTL police and guards frequently told them, in some cases while torturing them, that RTL camps had a “quota” of individuals that could die each month or year—meaning that if they refused to cooperate they were risking death.”[167] These threats occur amidst torture, in facilities where deaths are known to occur, and where inmates routinely witness the torture, beatings, and disappearance of their friends and coreligionists. Based on the Akayesu and the Krstic judgements this may also be considered an example of serious mental and physical harm.

Inflicting conditions of life calculated to bring about the physical destruction

An additional aspect of the crime of genocide, described at Article (II)(c), is “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”  As with Article (II)(b), the methods of destruction “do not need to immediately kill members of the group, but ultimately seek their physical destruction.”[168] However, it is not necessary to prove that physical destruction actually resulted from the imposed conditions.[169] Unlike the acts prohibited by Articles (II)(a) and (II)(b), this provision does not require proof that the conditions actually led to death or serious bodily or mental harm of members of the protected group. Where proof of such a result is evident, the proper charge would be Articles (II)a or (II)(b).[170]

The jurisprudence related to this act remains relatively thin. However, examples of this crime have been listed as including, inter alia, “subjecting the group to a subsistence diet, failing to provide adequate medical care, systematically expelling members of the group from their homes, and imposing circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion.” Factors such as the length of time that these conditions are imposed, and the nature of the conditions, and the effect in combination with other acts, are also relevant when weighting the probability that the conditions would lead to the group’s physical destruction.[171]

In the Tolimir Judgement, the forcible transfer of women and children from their homes, and the separation and execution of men, were found to have created conditions of life that would contribute to the group’s physical and biological destruction. Specifically, the combined effect of the displacement of women and children, and the execution of the men, was deemed likely to severely impede the group’s ability to physically reconstitute itself.[172] The Blagojevic and Jokic Trial Chamber noted that “the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself – particularly when it involves the separation of its members.” It further noted that this was not intended as recognition of cultural genocide, but rather “an attempt to clarify the meaning of physical or biological destruction.”[173]

By contrast, the Karadzic Trial Chamber was not satisfied that the detention of Bosnian Muslims and Bosnian Croats was an attempt to deliberately inflict conditions of life calculated to bring about the groups’ destruction. It accepted that the detention facilities in question were “inhumane”; that detainees were made to perform forced labour and risked being beaten if they refused; that they were provided adequate accommodation, shelter, food, water, medical care and access to hygienic sanitation; and that the living conditions “had a serious effect on some of the detainees.” However, it found insufficient evidence that these conditions were calculated to bring about the group’s physical destruction.[174]

Applicability to Falun Gong

Given the relative dearth of jurisprudence that could clarify the meaning of “conditions of life calculated to bring about [the group’s[ physical destruction in whole or in part,” it is difficult to pronounce on whether this element of genocide would be found in the case of Falun Gong. However, there is compelling reason to believe that it would apply.

The clearest evidence of this is the repeated and/or prolonged detention of very large numbers of Falun Gong adherents in detention facilities, prisons, and laojiao camps. Once again, the total number of Falun Gong adherents who have been subject to detention numbers at least in the hundreds of thousands of individuals, and perhaps into the millions. The duration of detention varies according to the type of facility: detention in extralegal “brainwashing classes” or “black jails” may last weeks or months. Many Falun Gong adherents report being held in police detention centres for a year or more before either being criminally charged or sentenced administratively to laojiao facilities, where they may be held for up to four years.[175] Prison terms can run longer; the longest reported prison sentences given to Falun Gong adherents are in the range of 18 – 22 years. Many individuals are sent repeatedly to detention facilities. A representative example is the case of Sun Yi, a Beijing engineer was detained and tortured on ten separate occasions between 1999 and 2017, before he fled to Indonesia and died at the age of 50. During the second of two laojiao sentences, Sun’s wife was sent to a brainwashing classes and pressured to divorce him.

State-enforced societal discrimination against Falun Gong adherents further contributes to the destruction of the group by severely constraining their ability to access advanced education, employment, and housing. As this author found when surveying public job posting and post-secondary entrance requirements in 2013:

Post-secondary institutions across the country – from agricultural universities to law schools to fine arts programmes – require students to prove that they have adopted the “correct attitude” on Falun Gong as a condition of admission. Some require signed assurances procured from the security agencies or Party offices of the hukou 户口 (household registration) in which the prospective stu- dent is registered. For public security colleges, the requirements are even more stringent: an unreformed Falun Gong practitioner in the family is grounds for exclusion. A job posting for the Shenyang Regional Air Force, dated March 2013, explains that recruits must first be loyal to the motherland and support the Party’s basic line, and have no record of participation in “illegal social groups and organizations, especially Falun Gong.” All other criteria related to health, age and educational attainments are secondary to these stipulations.[…] Young men and women hoping to find work with the Wenzhou 温州 municipal public security bureau must, above all, be “handsome, healthy, reliable, and must not practise Falun Gong.” The website of the State Administration for Industry and Commerce notes that prospective trademark review and adjudication support staff must also have no record of participation in Falun Gong.[176]

This discrimination extends beyond access to employments and education; it also constrains the geographic mobility of Falun Gong adherents. In many locales, Chinese citizens who wished to change their household registration address (hukou) were also required to prove they did not belong to Falun Gong.[177] The prolonged and/or repeated detention of Falun Gong adherents over two decades, coupled with the killing of thousands of prominent members, and the state-enforced discrimination in housing, employment and schooling, could, in combination, be construed as creating conditions of life that would bring about the group’s destruction—not least because these conditions preclude family formation and the physical reconstitution of the group.

CONCLUSION

By 2006, Falun Gong activists had filed at least 54 criminal and civil lawsuits in 33 countries against Communist Party chairman Jiang Zemin and other senior party and government officials alleging torture, crimes against humanity, and genocide.[178] Ultimately, only courts in Spain and Argentina agreed to indict the leaders—a largely symbolic gesture. Most others, including the United States, declined to exercise jurisdiction on political or other grounds.

However, the failure of these cases is not for lack of merit. If ever a court were to try senior Communist Party officials responsible for the suppression campaign—to say nothing of the many mid- and low-level cadres involved in its execution—there would be strong grounds to find that they had ordered and incited acts of torture, persecution, enslavement, and even genocide against Falun Gong.

With respect to the mental element of genocide, a court would find extensive documentary evidence of the Communist Party and 610 Office policy to isolate Falun Gong adherents socially; dehumanize them in the media; deprive them of education, housing, and careers; monitor and harass their families; destroy their religious texts and symbols; deny them legal rights to assembly, speech, conscience, and due process; and punish those who refuse to recant their faith, including through extrajudicial imprisonment, torture, and killing. The objective of the campaign, as reiterated repeatedly in official documents, speeches, and in official news outlets, is nothing short of the complete eradication of the group. Hardly anyone in China, least of all members of the judiciary, media, or the security agencies, could reasonably claim ignorance of this intent.

In addition to an explicit plan and statements from senior officials, intent could be inferred from the scale, repetition, and severity of atrocities committed in the anti-Falun Gong campaign, which has been described as the most intense instance of religious persecution since the Great Cultural Revolution.[179]

Jurists would likely grapple with defining religion under the genocide convention, a question for which there is relatively little relevant jurisprudence. Falun Gong’s religious status would be contested partly on the grounds that it lacks many features of institutionalized religions, and also because it is a newly emerged religion, membership in which is strictly voluntary, rather than a matter of birth. Nonetheless, belief in Falun Gong forms a core feature of the identity of its practitioners, for whom it represents a path to spiritual salvation. A review of the academic literature would find that Falun Gong is profoundly religious, and although Chinese authorities have sought to label it as a heretical teaching, they do recognized it as a set of common religious beliefs. Thus, it would ultimately be deemed a protected group.

With respect to the acts of genocide, a court would find that central party officials ordered the large-scale imprisonment of Falun Gong practitioners in prisons, labour camps, and other detention facilities without due process. They ordered local authorities to forcibly convert Falun Gong practitioners using virtually any means necessary. All across the country, these policies led to intense physical and psychological torture of Falun Gong adherents, which exceeded the punishment meted out to other classes of prisoners, often leading to serious and lasting bodily and psychological harm. When killings occurred, as they often have, the perpetrators have been shielded from accountability. Moreover, as evidence of systematic organ harvesting demonstrates, medical professionals working in collusion with state and party entities may have deliberately killed large numbers of Falun Gong adherents. All of these acts have been committed with intent to destroy Falun Gong in whole or in substantial part, supporting the claim of genocide.

The evidence presented in this paper has long been available in open sources. Falun Gong adherents and their supporters have taken great pains to publicize their plight. In 2002, for example, while on an official visit to the United States, Chinese Communist Party chairman Jiang Zemin was served papers complaining of torture and genocide. The plaintiffs alleged that Jiang had ordered and planned the nationwide suppression of the Falun Gong spiritual discipline, and that U.S. courts had jurisdiction under the Alien Tort Claims Act and the Torture Victims Protection Act.

The case, and many others like it, never made it far: the U.S. State Department argued that Jiang enjoyed absolute immunity as a former head of state, even for alleged violations of jus cogens norms.[180] The court accepted the government’s suggestion as conclusive and binding upon it, signalling that immunity for foreign officials is a matter of politics, not law.

The failure of the international community to take seriously the charge of genocide in the case against Falun Gong has had consequences that reach beyond the Falun Gong community itself. The crackdown on Uyghur Muslims, described at the beginning of this article, has been implemented by many of the same officials, using many of the same methods of torture and ideological transformation that have been deployed against Falun Gong. In declining to appropriately sanction Chinese leaders at a time when the nation was far more responsive to international censure, these officials have been empowered as probable serial genocidaires.

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Caylan Ford is an award-winning documentary filmmaker and a senior policy advisor with the Canadian foreign ministry. She earned an MA in international affairs from the George Washington University and a MSt. in International Human Rights Law from Oxford University. The views expressed in this article do not necessarily reflect the views of her institutional affiliations.

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Footnotes

[1] U.S. Department of State, ‘Determination of the Secretary of State on Atrocities in Xinjiang,’ (19 January 2021)

[2] Adrian Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control,’ (Jamestown Foundation 2020)

[3] This view was shared by Edward Fitzgerald QC in his advice given to the China Tribunal. See China Tribunal ‘Final Judgement’ (2020) para. 104 <https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf> Accessed 2 May 2022

[4] See Stephen Noakes and Caylan Ford, ‘Managing Political Opposition Groups In China: Explaining The Continuing Anti-Falun Gong Campaign’ (2015) 223 The China Quarterly ; Sarah Cook, ‘The Politburo’s Predicament: Confronting The Limitations Of Chinese Communist Party Repression’ (Freedom House 2015) 17.

[5] Li Hongzhi, ‘Lectures in Guangzhou,’ (Falundafa.org, December 1994) < https://en.falundafa.org/falun-dafa-video-audio-9session.html> Accessed 2 May 2022

[6] Seth Faison, ‘In Beijing: A Roar of Silent Protests’ New York Times (Beijing April 27 1999).

[7] See Benjamin Penny, The Religion of Falun Gong (University of Chicago Press 2012), 55.

[8] James Tong, Revenge Of The Forbidden City (Oxford University Press 2009) 6.

[9] Jiang Zemin, ‘A New Signal: Letter From Comrade Jiang Zemin To Members Of The Standing Committee Of The Political Bureau Of The CPC Central Committee And Other Relevant Comrades’ (1999).

[10] Tong (n 8) 33.

[11] Mickey Spiegel, Dangerous Meditation (Human Rights Watch 2002).

[12] Sarah Cook and Leeshai Lemish, ‘The 610 Office: Policing the Chinese Spirit’ (2011) 11 Jamestown Foundation China Brief.

[13] Jiang Zemin, ‘Comrade Jiang Zemin’s Speech at the Meeting of the Political Bureau of the CCCCP Regarding Speeding Up the Dealing With and Resolving the ‘Falun Gong’ Problem’ (July 7 1999).

[14] Cook and Lemish (n 12); Tong (n 8) 133-135.

[15] Ibid.

[16] Spiegel (n 11).

[17] Ibid.

[18] ‘Notice Of The Ministry Of Public Security Of The People’s Republic Of China’ (July 22 1999) 32 Chinese Law and Government.

[19] Xinhua, ‘China destroys over two million confiscated Falun Gong publications’ (Beijing July 29 1999).

[20] Spiegel (n 11).

[21] Noakes and Ford (n 4) 671-672.

[22] David Ownby, Falun Gong And The Future Of China (Oxford University Press 2010), 176 ;  Amnesty International, ‘People’s Republic Of China, The Crackdown On Falun Gong And Other So-Called “Heretical Organizations”’ (2000) 4.

[23] Daniel B. Wright and Joseph Fewsmith, The promise of the Revolution: stories of fulfilment and struggle in China (Rowman and Littlefield 2003) 156.

[24] Xinhua, ‘Li Lanqing Spoke at the National Award-giving Meeting for Advanced Groups and Individuals in Combating Evil Cults’ (February 26 2001).

[25] Lu Renjie et al., Pictures That Expose and Criticize Falun Gong (China Writers Publishing House 2003).

[26] Spiegel (n 11).

[27] Erik Eckholm and Elisabeth Rosenthal, ‘China’s Leadership Pushed for Unity,’ New York Times (Beijing, March 9 2001).

[28] Xinhua, ‘Xinhua Commentary Calls For Long-Term Fight Against Falun Gong Cult’ (September 7 2003).

[29] People’s Daily, ‘Falun Gong cult is the creator of human tragedy’ (March 20 2001)

[30] Spiegel (n 11); Charles Hutzler, ‘Falun Gong Feels Effect of China’s Tighter Grip — Shift Means Even Private Practice Is Banned’ Wall Street Journal (April 26 2001)

[31] John Pomfret and Philip Pan, ‘Torture Is Breaking Falun Gong’ Washington Post (August 5 2001).

[32] Ibid

[33] Cook (n 4) 17

[34] Congressional-Executive Commission on China ‘Annual Report’ (2007) 39–40.

[35] Amnesty International, ‘Changing the Soup but Not the Medicine’ (2013) 5-6.

[36] Chinese Human Rights Defenders, ‘Re-education through labor abuses continue unabated: overhaul long overdue’ (2009) 195

[37] Amnesty International (n 35) 30

[38] Human Rights Watch, ‘We Could Disappear at Any Time: Retaliation and Abuses Against Chinese Petitioners’ (2005) 58.

[39] Congressional-Executive Commission on China, ‘Annual Report’ (2008) 90

[40] Cook (n 4); Amnesty International (n 35) 14.

[41] Amnesty International (n 35) 19 ; 25-27.

[42] Ibid, 27.

[43] Ibid, 18-25, 29-33 ;  UN Human Rights Council, ‘Report of the Special Rapporteur on Torture’ (2006) UN Doc E/CN.4/2006/6/Add.6, 13-14.

[44] Chinese authorities consistently obstruct efforts to independently verify reports of torture or killing in custody. However, reports from Falun Gong sources are generally considered reliable by human rights organizations and academic sources. See Ownby (n 22) p 162-163.

[45] CECC (n 34) 88.

[46] For a selection of representative cases, see Falun Dafa Information Center, ‘Documented Falun Gong Deaths January-April 2011’ (May 30 2011) <http://media.faluninfo.net/media/doc/2011/06/documented-falun-gong-deaths-jan-apr-2011.pdf> Accessed April 10 2017.

[47] Ian Johnson, ‘A Deadly Exercise: Practicing Falun Gong Was A Right, Ms. Chen Said, To Her Last Day’ Wall Street Journal (2000).

[48] Noakes and Ford (n 4) 665.

[49] Falun Dafa Information Center, ‘Northeast China Prison Under Lockdown After Deaths Exposed Online’ (March 28 2011).

[50] Amnesty International (n 35) 32.

[51] Minghui, ‘Falun Gong practitioners persecuted to death’ <http://library.minghui.org/category/32,96,,1.htm> Accessed August 15 2021.

[52] Amnesty International (n 35) 30.

[53] David Matas and David Kilgour, Bloody Harvest: Organ Harvesting of Falun Gong Practitioners in China (Seraphim Editions 2009); Ethan Gutmann, The Slaughter: Mass Killing, Organ Harvesting, and China’s Secret Solution to Its Dissident Problem (Prometheus Books 2014).

[54] Matthew P. Robertson et al, ‘Analysis of official deceased organ donation data casts doubt on the credibility of China’s organ transplant reform’ (2019) BCM Medical Ethics (20)

[55] Ibid

[56] Matthew P. Robertson, ‘Organ Procurement and Extrajudicial Execution in China: A review of the Evidence,’ (2020).

[57] Ibid

[58] Liu Hong, ‘Huang Jiefu: China Will Become the World’s Largest Organ Transplant Country, But There’s Still a Lot of Organ Waste’ Beijing Daily (2020)

[59] Amnesty International estimated 3,400 judicial executions in 2005. See Amnesty International, ‘Facts and Figures on the Death Penalty (2021) <https://www.amnesty.org/en/wp-content/uploads/2021/08/act500062005en.pdf> Accessed 2 May 2022.

[60] Nathan Vanderklippe, ‘Report Alleges China Killing Thousands of Prisoners to Harvest Organs’ The Globe and Mail (Beijing, June 22 2016).

[61] Robertson (n 54).

[62] Jacob Lavee and Matthew P. Robertson, ‘China’s Killer Doctors’ Tablet Magazine (June 27 2022)

[63] Matas and Kilgour (n 53); Robertson (n 56).

[64] Matthew P. Robertson and Jacob Lavee, ‘Execution by organ procurement: Breaching the dead donor rule in China’ (2022) 22 American Journal of Transplantation 1804–1812.

[65] Matas and Kilgour (n 53); Robertson (n 56)

[66] Gutmann (n 53) 233-235.

[67] Matthew Robertson and Jacob Lavee, ‘China’s Organ Transplant Problem’ The Diplomat (March 29 2017); Zhejiang Anti-cult Association ‘Academic Papers on Evil Religion Prevention Research in the New Era’ (Zheng Shusen ed., China Science and Technology Press 2009).

[68] China Tribunal, Final Short Form Conclusion, (2020) <https://chinatribunal.com/wp-content/uploads/2020/02/China-Tribunal-SHORT-FORM-CONCLUSION_Final.pdf> Accessed 2 May 2022

[69] China Tribunal, ‘Interim Judgement,’ (March 2020).

[70] Raphael Lemkin, Axis Rule in Occupied Europe, (The Lawbook Exchange Ltd 2005) 79.

[71] Semanza (Trial Chamber) ICTR-97-20 (May 15 2003) para. 315.

[72] Ibid, para. 276.

[73] Jelisic (Appeals Chamber) ICTY-95-10 (July 5 2001), para. 48.

[74] Spiegel (n 11).

[75] Tong (n 8) 140-150 ; Cook and Lemish (n 12).

[76] Noakes and Ford (n 4) 676

[77] For an analogous example, see Nahimana et al. (Trial Chamber) ICTR-99-52 (Dec 3 2003) para. 957-969.

[78] Akayesu, (Trial Chamber) ICTR-96-4-T (September 2 1998) para. 523-524 ; Kayishema and Ruzindana (Trial Chamber) ICTR-95-1-T (May 21 1999) para. 93, 527.

[79] Krstic, (Trial Chamber) ICTY-98-33 (August 2 2001) para. 580.

[80] William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press 2000) 233

[81] Cherif Bassiouni, `Commentary on the International Law Commission’s 1991 Draft Code of Crimes against the Peace and Security of Mankind’ (1993) 11 Nouvelles etudes penales, 233 ; Schabas  (n 80) 225.

[82] Akayesu (n 78) para. 728.

[83] Kayishema and Ruzindana (n 78) para. 96.

[84] Krstic (n 79) para. 634.

[85] Jelisic (Trial Chamber), ICTY-95-10 (December 14 1999) para. 82.

[86] Tolimir (Trial Chamber), IT-05-88/2-T (December 12 2012) para.776 – 781.

[87] See ‘Falun Gong and China’s Continuing War on Human Rights,’ Joint Hearing before the Committee on International Relations of the U.S. House of Representatives (July 21 2005)

[88] Amnesty International (n 35) p 14; Noakes and Ford (n 4) 665.

[89] International Law Commission ‘Draft Code of Crimes against the Peace and Security of Mankind’ (1996) 45

[90] See for example CECC (n 39) ; U.S. Department of State, ‘International Religious Freedom Reports 2015: China’; Sarah Cook, The Battle for China’s Spirit: Religious Revival, Repression, and Resistance under Xi Jinping (Freedom House, February 2017); UN Human Rights Council, Report of the Special Rapporteur on Freedom of Religion or Belief (2010) UN Doc A/HRC/13/40/Add.1.

[91] Penny (n 7) 225.

[92] Akayesu (n 78) para. 515.

[93] Kayishema and Ruzindana (n 78) para. 98.

[94] Jelisic, (n 85) para. 69.

[95] Akayesu, (n 78) para. 511.

[96] Li Hongzhi, ‘First Fa Teaching Given in the United States’ (San Francisco, Oct 5 1996).

[97] Hirad Abtahi and Philippa Webb, The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff Publishers 2008) 1392.

[98] Refer to Article 31 of the Vienna Convention of the Law of Treaties, which specifies that treaties should first be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms …in their context and in the light of its object and purpose.” Per Article 32, the preparatory works need only be consulted as a supplemental means of interpretation if the meaning is ambiguous or obscure.

[99] Rutagana (Trial Chamber) ICTR-96-3 (Dec 6 1999) para. 56, 58.

[100] Semanza (n 71) para. 317.

[101] Ownby (n 22) p 10.

[102] Zhu Xiaoyang and Benjamin Penny, “The Qigong Boom,” Chinese Sociology and Anthropology Vol. 27, No. 1 (1994) 3.

[103] Ownby (n 22) 87-89.

[104] David Palmer, Qigong Fever: Body, Science and Utopia in China, (New York: Cambridge University Press, 2007)
472.

[105] Li Hongzhi, Zhuan Falun (English Edition, Yih Chyun Book Co. 2000) 15.

[106] Penny, (n 7) 170.

[107] Li, Zhuan Falun 18.

[108] Penny (n 7) 225.

[109] Ibid 51.

[110] CECC (n 39) 73-93.

[111] Penny (n 7) 24.

[112] David Ownby, ‘Statement of David Ownby, Director, The Center of East Asian Studies, University of Montreal,’ Testimony for the Congressional-Executive Commission on China (Washington DC May 23 2005).

[113] Penny (n 7) 22.

[114] Li Hongzhi, ‘Some Thoughts of Mine’ (June 2 1999).

[115] Kayeshima and Ruzindana (n 78) para 98.

[116] See Li Hongzhi, ‘Teaching the Fa at the meeting with Asia-Pacific students,’ (New York, April 12 2004).

[117] Louis Charbonneau, ‘U.N. Envoy defends Falun Gong, ‘evil cult’ for China’ Reuters, (Oct 22 2010).

[118] Richard Madsen, ‘The Upsurge of Religion in China’ in The China Reader: Rising Power (6^th edn, Oxford University Press 2016) 195.

[119] Penny (n 7) 7.

[120] Madsen (n 118) 191.

[121] Ibid; Kwang-Ching Liu, Heterodoxy in Late Imperial China (University of Hawaii Press 2004) 482.

[122] Zong Hairen, ‘Zhu Rongji in 1999’ (2002) Chinese Law & Government, 35:1, 63
.

[123] Ibid, 59.

[124] ‘Order Document ([1999] 21),’ General Office of the Chinese Communist Party Hebei Provincial Committee (June 3 1999).

[125] Xinhua, ‘People’s Daily on the struggle between materialism and idealism’ (Beijing, July 27 1999).

[126] UN Human Rights Committee, CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) (1993) UN Doc CCPR/C/21/Rev.1/Add.4.

[127] U.S. Department of Justice, Office of Public Affairs ‘Justice Department Resolves Discrimination Case Against Flushing, N.Y. Restaurant That Ejected Patrons Because of Religion’ (August 12 2010) ; Ontario Human Rights Commission ‘Backgrounder — Tribunal finds Falun Gong a protected creed under Ontario’s Human Rights Code’ (Jan 25 2006).

[128] In some cases, Falun Gong is understood as a both a religious and a social group. See for example RRT Case No. 1405804 [2014] RTTA 658, Australia: Refugee Review Tribunal, 7 August 2014  ; Yang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1463; 2001 FCT 1052, Canada: Federal Court, 26 September 2001.

[129] Schabas (n 80) 157.

[130] Akayesu (n 78) para. 521.

[131] Semanza (n 71) para 319.

[132] Kayishema and Ruzindana (n 78) para 103.

[133] Akayesu (n 78) para. 589.

[134] International Criminal Court, ‘Elements of Crimes’ (2011) 2.

[135] Akayesu (n 78) para. 589.

[136] For example, see Ethan Gutmann, ‘The Xinjiang Procedure’ Weekly Standard (Dec 5 2011).

[137] See China Tribunal, “Submission of Didi Kristen Tatlow’ (2019) <https://chinatribunal.com/wp-content/uploads/2019/06/DidiKirstenTatlow_Submission.pdf> Accessed 2 May 2022

[138] Robertson and Lavee (n 67).

[139] Ibid.

[140] Jelisic (n 73) para 49.  See also Kvocka et al. (Appeals Chamber) IT-98-30/1-A (Feb 28 2005) para. 463, which notes that “crimes against humanity can be committed for purely personal reasons”; Krnojelac (Appeal Chamber) IT-97-25-A (Sept 17 2003) para. 102.

[141] See Kvocka et al. (n 140) para. 370; Kunarac et al. (Appeals Chamber) IT-96-23 (June 12 2002) para. 153.

[142] Djordjevic (Appeals Chamber) IT-05-87/1-A (Jan 27 2014) para 77. See also Karadzic (Trial Chamber) IT-95-5/18-T (March 24 2016) para. 570

[143] Krstic (n 79) para. 513.

[144] Akayesu (n 78) para. 502 ; Kayishema and Ruzindana (n 78) para. 108; Rutaganda (n 99) para. 51; Semanza (n 71) para. 320; Tolimir (no 86) para. 738; Bagosora (Trial Chamber) ICTR-98-41 (Dec 18 2008) para. 2117.

[145] Krstic, (n 79) para. 513.

[146]  Kayishema and Ruzindana (n 78) para. 109.

[147] Akayesu (n 78) para. 504.

[148] Tolimir  (n 86) para. 737

[149] International Criminal Court, ‘Elements of Crimes’ (2011) 2.

[150] Kayishema and Ruzindana (n 78) para. 108-113.

[151] Schabas (n 80) 161.

[152] Nehemiah Robinson, The Genocide Convention: A Commentary (Institute of Jewish Affairs, 1960) p. ix.

[153] Schabas (n 80) 161.

[154] Krstić (n 79) para. 513; Krajicnik (Trial Chamber) IT-00-39-T (Sept 27 2006) para. 862; Seromba (Appeal Chamber) ICTR-01-66-A (March 12 2008) para. 46.

[155] Akayesu (n 78) para. 731.

[156] Krstic (n 79) para. 514.

[157] Akayesu (n 78) para. 711-712.

[158] Tolimir,(n 86) para. 756   

[159] Pomfret and Pan (n 31)

[160] Caylan Ford, ‘Interview with a Chinese Olympic Prisoner,’ The Hub (Feb 10 2022)

[161] Falun Dafa Information Centre, ‘Gravely Ill Woman Imprisoned Until Term Expires, Dies 12 Days After Her Release’ (Sept 2 2018) <https://faluninfo.net/gravely-ill-woman-imprisoned-term-expires-dies-12-days-release/> Accessed May 2 2022; Falun Dafa Information Centre, ‘Falun Dafa Practitioner Ms. Ren Shujie Passed Away Because of the Persecution’ (Sept 11 2005) < https://en.minghui.org/emh/articles/2005/9/11/64797p.html> Accessed May 2 2022

[162] Falun Dafa Information Centre, ‘Mr. Chen Gang: Personal Account of Torture in Chinese Prison’ (Oct 26 2019) <https://faluninfo.net/chen-gong-forced-transformation-in-chinese-prison/> Accessed May 2 2022

[163] Falun Dafa Information Centre, ‘Young Woman Suffers Mental Breakdown Following Untold Torture and Rape’ (Aug 11 2004) <https://faluninfo.net/young-woman-suffers-mental-breakdown-following-untold-torture-and-rape/> Accessed May 2 2022.

[164] Amnesty International (n 35) p 20

[165] Ibid

[166] Schabas, (n 80) 159-160.

[167] Amnesty International (n 35) 29-32.

[168] Akayesu (n 78) Trial Chamber, para. 505. See also Brdanin (Trial Chamber) IT-99-36-T (Sept 1 2004) para. 691; Stakic (Trial Chamber) IT-97-24-T (July 31 2003) paras. 517–518; Musema (Trial Chamber) ICTR-96-13-A (Jan 27 2000) para. 157; Rutaganda (n 99), para. 52; Popovic (Trial Chamber) IT-05-88-T (June 10 2010) para. 814; Tolimir (n 86) para 740

[169] Tolimir (n 86) para 741

[170] Karadzic (Trial Chamber) IT-95-5/18-T (Mar 24 2016) para 546

[171] Ibid

[172] Tolimir (n 86) para 766-767,

[173] Blagojevic and Jokic (Trial Chamber) IT-02-60-T (Jan 17 2005) para. 666.

[174] Karadzic (n 169) para 2583-2587.

[175] Amnesty International (n 35) p 3

[176] Noakes and Ford (n 4) 671-672.

[177] Ibid, 672

[178] Ownby (n 22) 219.

[179] Cook (n 90)

[180] Sean Murphy, ‘Head-Of-State Immunity For Former Chinese President Jiang Zemin’ (2003) 97 The American Journal of International Law, 974-977