Spain’s historic lawsuit for Tibet

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At the door of the Spanish National Court, Audiencia Nacional, after submitting the first lawsuit, 28 June 2005. From left to right: Thubten Wangchen (co-plaintiff and witness), Palden Gyatso (victim and witness), Takna Jigme Sangpo (victim and witness on both lawsuits), Kalsang Phuntsok,(ex president of Tibetan Youth Congress TYC. Photo © by Carlos Sanchez for CAT.

The Spanish legal cases and their significance:

Spanish lawyers and Tibet supporters have led the world in preparing a historic legal analysis of the consequences of China’s invasion of Tibet and oppression of its people. The Spanish National Court, Audiencia Nacional received two lawsuits prepared by Spanish lawyers with Comité de Apoyo al Tibetand held evidence admissible against members of the Politburo standing committee of the CCP. This is the first judicial complaint ever filed against Chinese leaders for crimes against Tibetans. The International Campaign for Tibet gave evidence in both cases. In the following article, uploaded with the kind permission of the author, Karen Collier gives an insight into the ground-breaking legal cases.

SPECIAL REPORT: Spain has led the world in preparing a historic legal analysis of the consequences of China’s invasion of Tibet and oppression of its people. The Spanish National Court, Audiencia Nacional received two lawsuits prepared by Spanish lawyers with Comité de Apoyo al Tibet (CAT) and held evidence admissible against members of the Politburo standing committee of the CCP. This is the first judicial complaint ever filed against Chinese leaders for crimes against Tibetans. The lawsuits are an apt reply to the impediment of exile and the political restrictions within Tibet under Chinese rule. Limitations on the principle of universal jurisdiction have emerged as a consequence of the recent resolution by Spanish Congress restricting cross-border cases to conditional jurisdiction, following diplomatic pressure that now requires amongst other things, a discernible link to Spain, the prosecuting state. The modification of the law, which threatens both lawsuits, will be appealed.

This article analyses the viability of universal jurisdiction vis-à-vis the historic lawsuits for Tibet and as a case study traces its precedents, namely the landmark case against Chilean dictator General Augusto Pinochet and the Nuremberg trials. Emphasis is placed on how legal action combined with documentation projects such as The Tibet Oral History Project and similar complementary social movements have proven fundamental in fighting impunity and seek a measure of justice for the Tibetan people over 50 years on. The development and application of the principle of Universal Jurisdiction by the Spanish Courts has been, perhaps the greatest contribution to the world in the defence of human rights.

A massive principle and “pillar of democracy” has almost fallen: the “universality” of Universal Justice. The benefits in Spanish lawyers pursuing such highly politicised and audacious cases, now halted by mounting foreign pressure, transcend the obstacles confronting the Court, consistently reinforcing the enlightened jurisprudential aspiration of absolute universality over the most heinous crimes against humanity. Surely this is worth defending.

Several specific international treaties have addressed the area of state jurisdiction in criminal law, however no general treaty provides a comprehensive solution of the jurisdiction of states in criminal cases. Historically, the application of the universality principle was recognised by Hugo Grotius in the 17th Century in relation to the crime of piracy on the high seas, the perpetrators of which were deemed to be hostis humani generis, “enemies of all mankind.” Today, international law continues to regard piracy as universally cognizable.Beyond its extension to slave trading in the 19th Century, the principle developed in the wake of the Nuremberg trials to the drafting of the Universal Declaration of Human Rights, holding that “criminal accountability need not end with the home state.” States practicing extraterritorial and universal jurisdiction continue to cite the Lotus principle of 1927 for support, established by the Permanent Court of International Justice (PCIJ) that: “States are free to adjudicate cases of genocide committed abroad, as long as third-party states cannot prove that extraterritorial jurisdiction is prohibited by international law.” Full text >>

Also published at:
Center for Accountability & Justice

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