Is the Falun Gong community in China a victim of genocide? Falun Gong is a set of exercises with a spiritual foundation which was banned in China in 1999. Those who did the exercises after 1999 were arrested and asked to denounce the practice. Those who did so were released. Those who did not were tortured. Those who still refused to recant after torture disappeared.

Falun Gong practitioners have been killed in China in large numbers. There have been over three thousand named victims killed as a result of torture inflicted in order to force them to abandon their beliefs. There have been in addition tens of thousands that have been killed for their organs which have been sold to transplant tourists.

The Government of China denies all of this is happening. It denies the organ harvesting; it denies the killings; it denies the torture. Yet, there is a wealth of factual evidence to show that these violations are happening.

The question I want to address here though is not whether the Government of China tortures, kills and organ harvests Falun Gong practitioners. I invite you to consider the considerable material available from human rights research and reports on these matters.

On the issue of organ harvesting, I draw your attention to a report I wrote with former Canadian Minister of State David Kilgour released first June 2006 and, in a second version, January 2007 under the title "Bloody Harvest: Organ Harvesting of Falun Gong practitioners in China". The report is available on the internet at <www.organharvestinvestigation.net>

Here, I would like to address a legal question. Are these killings genocide? Not every mass killing of an identifiable group is genocide. For the crime of genocide to occur there has to be not just actual destruction of the group in whole or in part. There has to be an intent to destroy. Does that intent to destroy exist here?

To illustrate the problem, let me refer briefly to another mass killing, in Darfur Sudan. A United Nations Commission composed of independent international law experts took the position that despite the mass killings there, there was no genocide, because there was no Sudanese government policy of genocide1.

The express reason the UN Commission decided against a policy of genocide is their finding of intent. Genocide, like any crime, requires both the act and the intent to commit the act. The Commission accepted that the mass killings on their own indicated an intent to commit genocide. But, so the Commission reasoned, there were other elements which showed a lack of intent to commit genocide.

Let me read to you from the words of the Commission. The Commission wrote:

"The fact that in a number of villages attacked and burned by both militias and Government forces the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men, is an important element2."

They then refer to a specific instance and write:

"This case clearly shows that the intent of the attackers was not to destroy an ethnic group as such, or part of the group. Instead, the intention was to murder all those men they considered as rebels, as well as forcibly expel the whole population so as to vacate the villages and prevent rebels from hiding among, or getting support from, the local population."3

Well, I disagree with those views. I consider them profoundly wrong. Why they are wrong has to do with the nature of armed conflict, which is not the situation in China. If you want to find out why I quarrel with that conclusion, I draw your attention to a talk I gave on the subject at a conference in Ottawa4.

The reason I refer to this report is to show that mass killings of an identifiable group can occur and yet international lawyers may conclude that there is no genocide. Mass killings alone are not enough to establish that the crime has been perpetrated.

The Chinese government, in response to the report David Kilgour and I wrote, studiously avoided the plausible and gravitated towards the outrageous. I refer you to the second version of our report for examples. So we are left on our own to try to figure out what a plausible answer might be to a charge of genocide levied against Chinese officials.

In order to assess the facts and law, we must consider the arguments both for and against. When the Chinese government avoids serious arguments against our conclusions, it falls to us to try to figure out as best we can what those serious arguments might be and try to weigh them.

When it comes to mass killings, needless to say, Chinese government officials do not admit the killings and only deny that they were done with the intent to destroy the group in whole or part. Yet, I am familiar enough with genocide prosecutions to know that, if these officials were prosecuted, they would not confine their defence to denial of the killings but also plead denial of the requisite intent. So let me imagine an argument which might be made that there is no genocide, despite the mass killings.

The practice of Falun Gong was banned on June 10, 2009. The Government set up an office, named after the date of banning, the 610 office, to implement the banning decision.

On November 30, the 610 office called more than 3,000 officials to the Great Hall of the People in Beijing to discuss the campaign against Falun Gong, which was then not going well. Demonstrations against the banning of Falun Gong were continuing to occur at Tiananmen Square. The head of the 610 office, Li Lanqing, announced the government's new policy on the movement: "defame their reputations, bankrupt them financially and destroy them physically."5

This statement "destroy them physically" might seem to be a smoking gun of intent. The trouble is linking that statement to individual cases of torture or organ harvesting. A conviction of anyone for genocide, like any crime, requires individual responsibility for crime. The relevant intent has to rest with the accused, not with Li Lanqing.

If the accused was one of the Chinese officials who was both responsible for killings and knew the order of Li Lanqing, the requisite intent would be established. One has to assume that the accused in the dock would plead ignorance of the Li Lanqing destruction order.

For the 3,000 people in the room at the time, for those who worked directly under Li Lanqing in the 610 office throughout China, and for those in the Government of China who made the destruction decision, there would be a ready answer to the claim of ignorance. But what about the others? The hands on killers may fall in none of these categories.

There are basically two kinds of killings of Falun Gong practitioners, killings through torture and killings through organ harvesting. As for killings through torture, there might an argument that there was no intention to kill at all, just an intention, through torture, to have the victims abandon their beliefs. How do we deal with that argument?

The answer is straightforward. The Canadian Criminal Code, for instance, provides that killing is murder where the accused means to cause the victim bodily harm which the accused knows is likely to cause the victim's death and is reckless whether death ensues or not. Killing is murder also where the accused, for an unlawful object, does anything that the accused knows or ought to know is likely to cause death, notwithstanding that the accused desires to effect his object without causing death6. These principles are typical for the law of murder in criminal law jurisdictions everywhere.

A official in charge of the torturer might claim that he or she did not know what was going on. Yet, that is no defense where there is conscious disregard of the information about the torture. The Statute of the International Criminal Court provides that a superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where the superior either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes, the crimes concerned activities that were within the effective responsibility and control of the superior, and the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution7.

As for the killings through organ harvesting, obviously, the argument that there was no intention to kill is not available. But an argument might be raised in defense of an accused that the intention to kill was not an intention to destroy the group in whole or in part because the accused did not know the victims were Falun Gong practitioners.

When China began organ transplants, the official Government of China line was that organs from transplants came from consenting voluntary donors. However, China has no donation system.

As the volume of transplants increased, this line became increasingly untenable. At first a trickle and then a flood of evidence emerged that organs were coming from prisoners sentenced to death.

The Government of China eventually acknowledged the obvious and admitted that it was sourcing organs from prisoners. However, its second explanation, that it was sourcing organs primarily from prisoners sentenced to death became, over time, as untenable as its first, that it was sourcing from voluntary donors.

Just as the volume initially got too high to make the first explanation plausible, eventually the volume got too high to make the second explanation plausible. Though China executes a large number of prisoners sentenced to death, the volume of transplants eventually dwarfed the number of organs available from prisoners sentenced to death and then executed.

The volume of transplants increased dramatically with the persecution of the Falun Gong. There are lots of tape recorded admissions of doctors and hospitals throughout China that the source of the increased volume is Falun Gong practitioners.

We obtained those admissions for the purpose of the report David Kilgour and I wrote. Investigators called hospitals, claiming to be relatives of patients needing transplants and asking if the hospitals had organs of Falun Gong practitioners for sale. The callers singled out Falun Gong because it is an exercise regime; its practitioners are typically healthy and so, accordingly are practitioner organs.

Nonetheless, the official Government of China line is that the source of organs for transplants is prisoners sentenced to death. That certainly is what transplant tourist patients coming from abroad are told.

We have to anticipate that a person accused of genocide of Falun Gong practitioners through organ harvesting would plead ignorance and claim that he or she thought that the person being killed for his or her organs was a person sentenced to death. Could such a defense succeed?

The nature of the problem is described by Tom Treasure, a transplant surgeon writing in the Journal of the Royal Society of Medicine8. He writes about transplants generally:

"The designated retrieval team, usually trainee surgeons or so called 'research' or transplant fellows, go where they are sent. It is nearly always at the dead of night, when the operating theatres are free and road and air routes are clear, and it is always under extreme time pressure to maximize the quality of the organs. Meanwhile the transplant teams call recipients on waiting lists and set up urgent transplant operations, in several different hospitals - all against the clock. The time pressure, the geographical dispersion, the complexity of the matching of multiple organs, the need to respect confidentiality and the anonymity of donor and recipient, and the sheer logistics of it all, means that no member of the medical staff has an overview of the whole process. Nor would they be expected to in China. This is what makes it plausible that it [organ harvesting of Falun Gong practitioners] could happen and that doctors themselves could be largely unaware of it, or at least sufficiently distant to turn a blind eye and a deaf ear."

This sort of argument was raised by defendant Karl Gebhardt in the Doctors Trial at the Nuremberg Military Trials. The Doctors Trial was conducted by a US military court in the US occupied zone of Germany in Nuremberg after the International Military Tribunals were completed.

Gebhardt was the personal physician for Himmler charged with crimes against humanity for his participation in Nazi medical experiments. In his defense his lawyers argued that subjects on whom he was experimenting faced execution. Though the experimental subjects did not give explicit consent, they gave tacit consent, his lawyers argued, "being certain that they could not escape execution in any other way".

There was also, so his lawyers pleaded, presumed consent because the consent of the victim "could be expected normally". Rationally and objectively, the victims would have agreed to the experiments to avoid the certainty of their eventual execution.

Gebhardt did not himself select the experimental subjects. Even if there was no actual or presumed consent, his lawyers asserted that Gebhardt should not be held criminally responsible if he erroneously assumed the consent of the experimental subjects. An action can not be considered intentional if it was done on an erroneous assumption of justificatory facts.

The Nuremberg Military Tribunal rejected these arguments. The Tribunal noted that many of the experiment subjects who otherwise faced execution had not gone through any semblance of a trial. The Tribunal wrote:

"That fact could have been known to Gebhardt had he made the slightest inquiry of them concerning their status."

Moreover, so the Tribunal reasoned, even if the experiment subjects had been sentenced to death, the law

"does not under any circumstances countenance the infliction of death or other punishment by maiming or torture."

Gebhardt was found guilty of crimes against humanity and sentenced to death in August 1947. He was executed in June 1948.

One can say the same of those complicit in organ harvesting of Falun Gong practitioners. The official Government of China line may well be that the sources of organs are prisoners sentenced to death. Many people know from personal experience that this is not so - those who blood test Falun Gong practitioners in prison, those who select Falun Gong practitioners for transplant, those who transport them to the roving organ sourcing hospital vans.

But even those at the other end of the procedures who may not see with their own eyes that the body in front of them is the body of a Falun Gong practitioner could learn that fact if they made the slightest inquiry about who the person was. If David Kilgour and I could learn that fact simply by having investigators who are strangers to the system phone the hospitals and doctors and ask, surely the people inside the system could do so.

In criminal law, the intent necessary for conviction exists where there is wilful blindness. When it comes to organ harvesting of Falun Gong, the evidence is so pervasive and so easily accessible that those in the system who claim they do not know have been wilfully blind.

The crime of genocide can be inflicted by incitement 9. Participation in hands on killing is not essential to conviction. And when it comes to incitement, the number of Chinese Communist Party and Chinese state official participants in the crime are a legion. Anti-Falun Gong incitement is standard Chinese government, Communist party propaganda. It is hard to find anyone associated with the Chinese State or Chinese Community Party who is not implicated in this propaganda.

Julius Streicher was convicted by the International Military Nuremberg after World War II, for crimes against humanity. He was sentenced to death and hanged. His crime was incitement to hatred against Jews while the Holocaust was happening, though he knew it was happening. The Nuremberg Tribunal wrote of Streicher:

"With knowledge of the extermination of the Jews in the Occupied Eastern Territory, this defendant continued to write and publish his propaganda of death ... Streicher's incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, as defined by the Charter, and constitutes a crime against humanity10."

Inside China there may be some people engaged in anti-Falun Gong propaganda who do not know about the mass killings of Falun Gong practitioners because of Chinese government censorship and internet blockage. However, that is certainly not true of Chinese officials abroad.

Every Chinese embassy around the world participates in this incitement. Despite their denials, they have to know about the mass killings of Falun Gong practitioners. The evidence fills human rights reports. There are constant media stories. The information is a click of a mouse away on the internet. Any claim of ignorance would mean that they have wilfully been turning blind eyes to the obvious, not a defense in law.

So, in sum, in view, the crime of genocide has been committed against the Falun Gong community, through torture, through organ harvesting and through the incitement that leads to both. The elements of the crime, the mass killings based on identity and the intent to destroy the group, can be established.

David Matas is a Winnipeg based international human rights lawyer.