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Why is International Law and Universal Jurisdiction absent from the Tibet-China debate?

posted Nov 2, 2011, 7:08 PM by The Tibetan Political Review   [ updated Nov 4, 2011, 6:50 AM ]
 
From Fear and Ignorance to Redress and Accountability

By Alan Cantos and Dr. José Elías Esteve 
  

For some reason International Law and Universal Jurisdiction – which is a part of it – is never or rarely mentioned in the Tibet debate.  The Tibetan Government-in-Exile does not mention it, the Tibet Movement rarely mentions it and when it is mentioned it is usually in a vague, hesitant, theoretical and pessimistic vein; more about what it has not achieved than what it has.  For example, the former Prime Minister of the Tibetan Government-in-Exile, Samdhong Rinpoche, in a July 2011 interview with TPR, said “the so-called international law is not a practical law.  It is ... in Chinese metaphor, a 'paper tiger.' ” 

Why is this?  Is that fear of Chinese repercussion or ignorance about how to go about it?  Not that International Law has an impeccable track record of efficiency and success in fighting impunity and protecting human rights, but the United Nations has it even less and yet it is a permanent reference and name dropper in the Tibet-China discussion.  The U.N. is a sort of household term that sounds good even though it does very little, despite being immensely powerful and rich (compared to any national or international court) when it comes to the impunity of the worst crimes of the most powerful states.  Dust-gathering reports abound, but legal action for Tibet is virtually non-existent apart from the Spanish cases brought under Universal Jurisdiction.

We have been preparing and seeking justice for the Tibetan victims of old and recent crimes in the Spanish Courts based on Universal Jurisdiction for more than ten years.  Not a lot of time for even one reincarnation.  The Pinochet case took twice as long to become effective and change the legal landscape and genocidal leaders and mass criminals at large shopping at Harrods.  It may not have been perfect because the British politically avoided Pinochet’s trial in Spain, but he was formally accused and his crimes recognised in the Spanish and British Courts, he had to bear arrest away from home, shame and four separate legal prosecutions in his home country before he died.  Anyone saying that that it is "not effective" has certainly not talked to victims or victims' families for a while.  The list of similar successful or fairly successful cases against flagrant impunity around the world in National and International Courts is long.


José Elías Esteve, Alan Cantos, Thupten Wangchen, Palden Gyatso, Takna Jigme Sangpo, and then-president of the Tibetan Youth Congress Kalsang Phuntsok submitting the criminal case at the Spanish National Court (Audiencia Nacional) against seven top Chinese government officials accused of genocide and other atrocities in Tibet.  28 June 2005.  (Photo by Ángel López-Soto for CAT)

In any case no one before has bothered to even denounce in front of ANY Court of Law the crimes committed in Tibet of genocide, various crimes against humanity, torture, terrorism, war crimes, etc, despite the infinite evidence, bibliography and sofa discussion about their existence.  There is also the possibility of denouncing environmental, economic and corporate crimes.  Is that fear and/or ignorance?  We believe that all democratic institutions, laws, human rights organizations, tribunals, national and international courts must be USED (not just talked about or criticised) to combat impunity and defend the dignity of the victims.

We don’t know what it is, but fear of the big powers or ignorance are never good excuses to refrain from using the privilege of the law that free countries have at their disposal.  In this sense, the premises of Universal Jurisdiction are based on the legal and legitimate principle of justice (not of vengeance) of the Tibetan victims, and constitutes a personal and untransferable right of theirs.  Furthermore the argument that Spanish justice interferes with negotiations (or better to say “talks about talks”) sustained by China and some politicians in Dharamsala is in hindsight a misguided and erroneous one, or at best speculative.  Fear or ignorance?  All the Tibetan victims who have participated and testified in these cases have expressed their firm rejection to this manipulative and profoundly anti-democratic argument which undermines the separation of powers (judicial and political) in a democracy and their independent coexistence.

Here are a few reasons we believe International Law and Universal Jurisdiction must be a part of the Tibet-China discussion or should we say ACTION!

It is a most useful tool for:

1) Fighting impunity in wide range of crimes and returning some form or comfort, dignity and redress to victims and families.

2) Making the perpetrators think twice about leaving their country knowing they can be arrested if it gets to that stage.

3) Pressure on the Chinese Government (diplomatic, legal, political, media, etc)

4) "Never Again": International Criminal Law is not just about punishment per se, but has a PREVENTIVE effect as stated in the Genocide Convention that binds those countries (100+) who have signed it.

5) Historical Memory and Reconciliation and Democratic re-construction in transitional societies. As Latin-American countries have experienced and asserted there is no reconciliation without justice for victims

6) Accountability (as HH the Dalai Lama himself as cited as on of the most important issues on the Tibetan struggle)

7) Automatic campaigning tool based on judicial resolutions as the cases advance

8) Conflict Resolution based on truth and active (not passive) non-violent resistance inspired in Gandhi-ji Satyagraha

9) Forcing democratic governments to choose between respecting or betraying the separation of powers (executive and judicial)

10) International redress for victims is totally connected with the origin of the cases, namely the crime of aggression committed against Tibet and the inherent Tibetan people's right to self-determination.

Here follows a reminder and appetizer of how International Law and Universal Jurisdiction works. These are just two recent examples of positive results and progress in the Spanish National Courts in the fight of justice for Tibet:
1) Regarding the lawsuit for genocide and other crimes committed in Tibet from 1972 to 2004 (admitted on 10th January 2005 and currently under investigation in “Summary phase"):

For the first time in history a Court of Justice recognised Tibet Juridically as an occupied country.  In its ruling of 30th March 2011 (*), Court Nº2 of Spain’s Audiencia Nacional accepted the classification being extended to war crime as it considered the facts denounced (i.e. population transfer from an occupying state (China) to an occupied state (Tibet)) “a serious violations of the Geneva Conventions of 12th August 1949”.  See: http://www.tibetjustice.org/features/audencia-nacional-ruling/

2) Regarding the lawsuit for crimes against humanity committed against the Tibetan people from 2006 to 2008 (admitted on 5th August 2008 and shelved by judge Pedráz in February 2010):

In its ruling of Friday 10th March, 2011 the Court permitted the three Tibetan plaintiffs to lodge an appeal against the criteria of the Audiencia Nacional’s Criminal Court, which, in addition to confirming the initial closing of investigations by the judge Santiago Pedráz, had tried to prevent the plaintiffs from appealing said decision to the Supreme Court.

TIBETAN VOICES article in English: http://www.tibetjustice.org/downloads/justice_without_borders.pdf

EUROPA PRESS article in English: http://www.facebook.com/note.php?note_id=191166254251909  and http://www.tibet.ca/en/newsroom/wtn/4028

EUROPA PRESS article in Spanish: http://www.europapress.es/epsocial/noticia-comite-apoyo-tibet-recurrira-cuanto-antes-ts-archivo-causa-represion-china-jjoo-20110311131513.html



Alan Cantos is Director of Comite de Apoyo al Tibet (CAT), a Tibet Support Group in Spain, and is a Physical Oceanographer trained at the University of Southampton UK (Physics) and University of Washington, Seattle USA (Physical Oceanography).

José Esteve is an international lawyer who researched and drafted both lawsuits for crimes in Tibet and a recent one for crimes in Burma.  He is a Professor in International Law at the University of Valencia. He received his Ph.D. at the University of Valencia; LL.M. at Complutense University, Madrid; and M .D. European Law at Université Libre de Bruxelles, (ULB), Brussels.



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