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The 'Great Leap Forward' to Impunity

posted Feb 23, 2016, 4:37 PM by The Tibetan Political Review   [ updated Mar 2, 2016, 6:28 PM ]
 
Burying Universal Jurisdiction in Spain and Returning to The Paradigm of Human Rights as "domaine reserve" of States

By Jose Elias Esteve Malto


Abstract

Since the Pinochet case the Spanish courts have had a leading role in prosecuting international crimes. The absolute scope of universal jurisdiction culminated with the international arrest warrants issued against various authorities of the Chinese Communist Party for the alleged commission of genocide against the Tibetan people. Soon after, the Spanish Government under pressure from the Chinese Government proceeded to a new revision of the Organic Law of Judiciary Power, proposing radical amendments and further restrictions to universal jurisdiction. Some of the new requirements of the Organic Law 1/2014 could be contrary to the Spanish Constitution and a myriad of international conventions ratified by Spain (especially the 1949 Geneva Conventions), all of which has been denounced to the Constitutional Court; the final verdict is still pending. Meanwhile different judges have interpreted and applied the new bill with contradictory results. Nonetheless the prevailing criteria of the Supreme Court which in sentence 296/2015 of 6 May 2015 interpreted universal jurisdiction in a restrictive manner have provoked a domino effect in Spain in the definitive shelving of almost all sensitive international cases. 

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* Senior lecturer in Public International Law and International Relations, University of Valencia; investigative lawyer in claims related to Tibet and Burma at the Audiencia Nacional. The author wishes to thank in particular the Tibetan victims, witnesses and international experts (especially Claude B. Levenson) who have given testimonies in this case, and Alan Cantos, president of the Comite¤ de Apoyo al Tíbet (CAT) who exercised the popular action jointly with the
Fundación Casa del Tíbet and ThubtenWangchen as private prosecution. Research and study done under the Project: Redes El Tiempo de los Derechos HURI-AGE, DER2014-53503-REDT.





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