by José Elías Esteve Moltó (Main Research Lawyer and author of the Tibet lawsuits and Prof. of International Law at the U. of Valencia)
Nearly 9 years ago Tibetan victims sought justice in person in the Spanish courts and lodged on 28th June 2005 a lawsuit for international crimes committed in Tibet, namely, genocide, torture, state terrorism and crimes against humanity. They all - victims, legal experts and the Comité de Apoyo al Tíbet (CAT) exercising popular action and seconded by the Fundación Casa del Tíbet, with Thubten Wangchen as private prosecution – they all believed in universal justice.
It was believed that in Spain an effective defence of human rights was possible within the framework of the European Union. And the facts supported this: in London, Pinochet was subjected to an intense process of extradition, even though he ultimately returned to Chile; in Madrid, the Argentinian military commander Adolfo Scilingo was sentenced to over a thousand years in prison for the so-called death flights; and in Spain and Europe a legal framework made it possible to effectively fight impunity. One only has to remember, for example, that the Council of the European Union on Justice and Home Affairs adopted a decision declaring that international crimes “must not go unpunished and their effective prosecution must be ensured by taking measures at a national level and by enhancing international cooperation” (Council decision 2003/335/JHA of 8 May 2003).
Moreover, the widespread ratification of the Rome Statute of the International Criminal Court among EU states requires that these states complement the efforts of the ICC, and calls on national courts to exercise criminal jurisdiction over those responsible for international crimes.
It was with this confidence in both Spanish and European legislation and judicial systems that the international crimes committed in Tibet were denounced. And it was in this same spirit that Spain’s Audiencia Nacional ruled on 10th January 2006 that it could be ““deduced, without a trace of doubt, that the acts described” in the lawsuit “possess the characteristics” of a crime of genocide. Furthermore, after verifying the impossibility of prosecuting the acts in either Chinese courts or the International Criminal Court, as the latter was not recognised by Beijing, the Spanish courts had full competence to investigate the acts denounced.
As a result of the lawsuit being admitted, the preliminary proceedings began. For years tens of Tibetan victims, eyewitnesses and international experts testified in the Spanish courts. And all despite the pressure exerted by China, which repeatedly declared to the international press that the investigation into so-called international crimes committed in Tibet was a “complete defamation and absolute lie” and that it obeyed the separatist intentions orchestrated by the “Dalai Lama’s clique”.
As a result of the Chinese authorities’ violent oppression of the Tibetan population in the spring of 2008 (violence that was denounced here in the European Parliament), a second lawsuit was lodged and admitted, classifying the acts as crimes against humanity. Beijing again protested at the behaviour of the Spanish judiciary and warned that using the question of human rights in Tibet was just an excuse to interfere in China’s internal affairs.
Despite this political pressure and a reform to universal jurisdiction in Spain in 2009, the Audiencia Nacional continued to investigate the case of the Tibetan genocide.
For its part, the European Union reaffirmed its commitment with human rights both in and outside its borders. Also, the New Treaty of Lisbon that came into force at that time established in its Article 2: “The European Union is based on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.” Common values that are repeated in all the treaty’s objectives and are also projected in the EU’s External Action.
Following these same guidelines, this European Parliament recently adopted on 11 December 2013 its “Annual Report on Human Rights and Democracy in the World 2012 and the European Union's policy on the matter”, which included a call for the EU and member states “to increase their efforts to fight impunity within the EU‘s own borders”.
However, when it comes to moving from the rhetoric of values to the practice of the effective pursuit of human rights, it seems that this system of protection may collapse. And in this regard, the facts are unquestionable.
In a judicial order of 9th October 2013, Section 4 – the Chamber of Appeal - of the Criminal Court of Spain’s National Court agreed to indict former Chinese president Hu Jintao for genocide. The ruling explained that not only had “his diplomatic immunity expired”, but he was found responsible of international crimes “because during the various repressive campaigns that took place in Tibet from 1988 to 1992, he was Party secretary of the Chinese Communist Party in the autonomous region of Tibet, which necessarily implies if not direct participation in the harassment of the Tibetan nation and people, at least sufficient organizational capacity and competence to have directed a series of actions and campaigns aimed at harassing the Tibetan people.”
A few weeks later, another ruling by the same chamber of appeal caused a diplomatic crisis. Coming just after China had been under scrutiny for her Universal Periodic Review (UPR) at the UN Human Rights Council in Geneva, the Spanish judges ordered international arrest warrants to be issued against five Chinese leaders, including former president and Party secretary Jiang Zemin, and former Chinese prime minister Li Peng.
The impact of the National Court’s ruling in the judiciary and the media sparked an immediate Chinese diplomatic reaction, which had its repercussions on Spain’s democracy. This time the Middle Kingdom did not limit itself to expressing its “strong displeasure” or calling the arrest warrants “preposterous” or “shameful”, but minced no words in its direct threats to Spain. Referring to Spain’s judiciary, Zhu Weiqun, president of the Committee of Chinese Religious and Ethnic Affairs, the leading advisory body to the Chinese Parliament, declared: "Let them go ahead, if they dare!”
The dialectic offensive continued with Chinese Foreign Ministry spokesman Hong Lei warning that “this despicable act is doomed to fail”. And with this objective in mind, the pressure continued: China first transferring its anger to the Spanish Ambassador in Beijing, and then sending a Chinese delegation directly to the Spanish Congress. On 12th December 2013 Wu Jingjie, deputy to the National People’s Congress, vice executive secretary of the Tibet Autonomous Region and head of this Chinese delegation, “expressed their perplexity” and demanded from the Spanish congressmen an immediate and definitive “political solution”.
The Spanish Government has not hesitated to lay Spanish democracy at the feet of the Asian giant, and last week the Congress passed a law to put an end to universal jurisdiction in Spain, purely in order to retroactively stay the Tibet case.
The form and content of the new reform to Article 23.4 of the LOPJ does not augur well for the victims of forgotten conflicts, as this amendment constitutes “a conspiratorial step in favour of granting impunity to those friends and acquaintances with business links.”
Europe and Spain are in a state of crisis. But the economic recession is not the main problem. The question that should concern us is the disintegration of European values of identity that have been a point of reference throughout the world. If democracy and respect for human rights in Europe kneel to China in order to save our economy, national debts and investments, we will irrevocably be creating more misery. Social, legal, ethical and even democratic misery. This kowtowing to China would be the beginning of the end of the basis of the democracy and freedom shared by all Europeans.
If here in Brussels you do not move now from the rhetoric of values to the effective protection of the rights of the victims of international crimes, we shall be handing over our democracy - Europe’s raison d’être - to a dictatorship. The member states of the European Union are not going to face the Asian giant’s ambitions on their own; only European institutions can do so.
In short, if all these sessions and speeches do not lead to a feeling of alarm and urgency so that those responsible within the European Union take a firm stand against dictatorships like that of China, not only will we be permitting impunity for international crimes (an inalienable objective since Nuremberg), but we will be attacking the very foundations of European civilisation.
Finally if we share in fact the abovementioned common values, we ask on you:
1. to a pass a resolution in the EP denouncing the impunity that creates the reform of the universal jurisdiction in Spain
2. to address the European Commission requesting that the issue of impunity for international crimes be included in strategic guidelines which the EU will adopt this year 2014 in order to set out future policy in the area of Justice and Home Affairs.
We have an specific and urgent opportunity to call upon the Socialist party and other politicians in Spain to launch an appeal to the Constitutional Court to declare the illegality of UJ law. Potentially they can do this within weeks with at least 50 MP’s agree.