Tibetan Lawsuit Goes To Appeal in Spain

APPEAL LODGED AGAINST COURT’S REJECTION OF LAWSUIT DEMANDING INTERNATIONAL JUSTICE FOR TIBETAN VICTIMS

An appeal will be launched today, following rejection of the historic lawsuit against Chinese authorities, by Spain’s National Court Number 2. The lawsuit, filed by the CAT (Comite de Apoyo al Tibet), requested the court to hear charges against Chinese authorities, for universal crimes committed against the Tibetan people, was dismissed on September 6th, 2005. [1] The rejection appears to contradict the fundamental laws underlying Spanish Judicial Procedure, and current judicial preference for applying universal jurisdiction in Spanish courts. It has also denied co-plaintiff, and Spanish citizen, Thupten Wangchen, from judicial recourse. In his report, the prosecutor of Court 2 stated that there was an insufficient “national connection” in order for the court to apply the principle of universal jurisdiction.

Speaking after the Court’s initial dismissal was declared, Spanish citizen, Thubten Wangchen declared: “Everyone agrees that genocide must be prosecuted, but genocide continues to be committed and nobody does anything about it.” Wangchen, a Buddhist monk, and the Director of Casa del Tibet in Barcelona, has lived in Spain since 1981. His mother was disappeared in 1957, eight months pregnant, having been in forced labour throughout her pregnancy. In 1987, he visited Tibet, acting as a tour guide for a Barcelona company, and was arrested by Chinese officials, who threatened to kill him, removing his passport and belongings from his hotel. He was later framed as a foreign instigator of the 1987 uprisings in Tibet.

Despite these facts, and other compelling details, the court sited the Supreme Court’s restrictive interpretation on Guatemala, as legal justification for denying universal justice to the Tibetan victims. In the Guatemala case, the Supreme Court believed that there was insufficient national connection between the plaintiffs and Spain, and refused to apply the principle of universal jurisdiction to hear the lawsuit. The Guatemala case, however, is also under appeal, and is the subject of severe international criticism, proving a contentious legal basis for the rejection of this lawsuit. Amnesty International, recently criticised such restrictive legal judgements, warning that “progressive restrictions applied to the principle of international jurisdiction” would be “incompatible with Spain’s obligations towards International Law”.

In rejecting this historic lawsuit, the appeal claims that Court Number 2 has contradicted a literal interpretation of Article 23.4 of Spain’s Fundamental Judicial Laws. This law recognises that Spain possesses the jurisdiction to pursue universal crimes beyond her frontiers, regardless of where these crimes are committed, or the nationality of both the victims, and the perpetrators. The Spanish courts cannot unilaterally decide to reject the lawsuit, as it has an international obligation to hear criminal cases involving these normative principles

“The court ruling denies the scope of any international treaty to establish universal jurisdiction through a national court, considering it more convenient to apply the “principle of non-intervention” in the affairs of other States.” Declared Mr Alan Cantos, President of CAT, when presenting the appeal: “in this case, the balance of justice is weighted on the side of impunity”.

Despite this initial setback, the CAT and their legal experts remain confident that justice will prevail. “The appeal will return to Court Number 2 of the National Court, who rejected the first lawsuit,” says Dr Jose Elias Esteve Molto, one of the legal experts behind the lawsuit, “but we intend to continue appealing to other legal bodies, such as the Supreme and Constitutional Courts and even, if necessary, the European Court of Human Rights.”

The decision to reject this lawsuit appears to contradict the opinions of Spain’s leading experts in such matters. In the summer course on Torture and Terrorism, at El Escorial, Judge Baltasar Garcon stated that: “The crimes committed against the Tibetan people constitute a clear-cut case of universal justice that should be recognised by the national courts of any State” having heard various Tibetan testimonies. Furthermore, th court ruling, and the prosecutor’s report appear to contradict the Attorney-General, Mr Conde Pumpido’s views on using universal jurisdiction in Spain. After the Guatemala case, which sought justice for assassinated Maya Indians, Conde Pomidou publicly expressed his support for Spanish courts to exercise universal jurisdiction “without restrictions”. In his dissenting opinion of the Supreme Court ruling, he declared: “By removing impunity for crimes against humanity such as genocide, the exercise of universal jurisdiction contributes towards peace and humanises our civilisation. It is true that it cannot return the victims to life, nor can it ensure that all those responsible are brought to trial, but it can help to prevent some further crimes from being committed and it can bring to justice some of those responsible. It thereby contributes towards a safer and more just world, and it consolidates International Law, rather than violence, as the usual method for resolving conflicts.”

CAT: COMITE DE APOYO AL TIBET is a completely secular and politically independent NGO, with nearly 20 years experience. It is concerned solely with the survival of the Tibetan people and culture, which is seriously threatened since the invasion of China.

[1] The lawsuit charges Jiang Zemin (former President of China), Li Peng (former Prime Minister of China), and five other Chinese officials for crimes of genocide, crimes against humanity, torture, and terrorism, committed against the Tibetan people.