In a new written statement, the Chinese government has rejected a judicial request for Chinese officials to testify in court in Madrid and demanded that the Spanish government block a ground-breaking investigation in the Spanish High Court on crimes against the Tibetan people, calling it a “false lawsuit.” The letter is the first written response from the Chinese authorities since two Tibet lawsuits were accepted in the Spanish High Court under the principle of “universal jurisdiction,” a doctrine that allows courts to reach beyond national borders in cases of torture, terrorism, genocide and crimes against humanity.
Spanish Judge Santiago Pedraz informed the Chinese Ministry of Justice on May 5 of rulings against eight Chinese leaders, including Tibet Autonomous Region Party Secretary Zhang Qingli, in the Spanish High Court in connection with the harsh crackdown on dissent in Tibet that has been ongoing from March 2008. The judge had requested authorization from the Chinese ministry to question the defendants in China should they refuse to do so before the Spanish court.
The Tibet lawsuits are threatened by a resolution passed by Spain’s Congress on May 19 to limit the jurisdiction of judges to cases in which there is a clear Spanish connection.
Despite the ruling and continuing pressure from China, Judge Pedraz has recently announced the extension of one of the Tibet lawsuits to include an investigation into the Nangpa shooting of September 2006, when 17-year old nun Kelsang Namtso was shot dead by Chinese border forces while attempting to cross Tibet’s border into exile.
This is an explicit admission of the incident as a crime against humanity. On July 14, in a written acceptance of the extension, Judge Pedraz again asked the Indian government for permission to travel to India in order to interview the Tibetan witnesses of the Nangpa shooting. American climber, Luiz Benitez, who witnessed Kelsang Namtso being fatally shot in the back as she and other nuns, monks and children attempted to flee across the Nangpa Pass, gave evidence on July 17 to Judge Pedraz at Spain’s High Court.
Written statements by China
In a June 16 letter to the Spain’s Ministry of Foreign Affairs and Cooperation in Madrid, a copy of which has been obtained by the Tibet Support Committee of Spain (CAT) and ICT, the Chinese Embassy in Spain wrote: “The acceptance of said false lawsuit by Spain’s Audiencia Nacional [High Court] has violated the basic principles of state jurisdiction and immunity established by international law and is not covered by the Treaty on Judicial Assistance on Criminal Matters between China and Spain. The Chinese party firmly refuses any request for judicial assistance regarding this case, while demanding that Spain assumes her responsibilities regarding international law, adopts immediate and effective measures to prevent any violation of the Treaty on Judicial Assistance in Criminal Matters between China and Spain and puts a stop to said case as soon as possible.”
According to reliable sources in Madrid, in verbal exchanges between Chinese Embassy and Spanish officials, a representative of the Chinese Embassy in Madrid suggested that if Judge Santiago Pedraz attempted to visit China, he would be arrested.
The Chinese Embassy in Madrid also returned the Rogatory Order issued by Spain’s Ministry of Justice calling for the leaders to testify back to the court, saying in the June 16 letter that China “firmly refuses any request for judicial assistance with regard to this case.”
The lawsuit dealing with the period from 2006 and in particular on the ongoing crackdown from March 2008 onwards was filed by Tibet Support Committee of Spain (Comite de Apoyo al Tibet) and Fundacion Casa Del Tibet, Barcelona and accepted by the court just days before the opening of the Beijing Olympics in August 2008.
“Given the cordial relations between our two respective countries, I hope that you will respond favorably to my request,” Judge Pedraz wrote to the Chinese authorities, referring to a bilateral justice cooperation agreement signed in 2005, according to a court document obtained and cited by the news agency AFP (May 5, 2009). The judge said that if the accusations made in the complaint were proven, then they would constitute crimes against humanity under Spanish and international law. “The Tibetan population would appear to be a group that is persecuted by the cited authorities for political, racial, national, ethnic, cultural, religious or other motives universally recognised as unacceptable under international law,” he wrote, according to the same AFP report.
The six investigating judges of Spain’s National Court, employing the principle of “universal jurisdiction,” are handling 13 cases involving events that took place in other countries, from Rwanda to Iraq as well as the Tibet cases. One judge, Baltasar Garzón, is investigating allegations of U.S. torture at Guant·namo Bay while Judge Pedraz, who is the investigating judge in one of the Tibet lawsuits, has issued international orders for the arrest of Guatemalan officials linked to allegations of genocide there. If a resolution proposed by Spain’s Congress is passed, which could happen within the next few months or weeks, cases taken up by Spanish judges would have to involve a Spanish citizen or the accused would have to be present on Spanish soil. Cases also would be dismissed if the same events are being investigated in the country where they allegedly took place.
Spanish lawyers reacted strongly to the move. Lecturer in Criminal Law Manuel Olle Sese, director of the human rights chair at the Antonio de Nebrija University and president of the Spanish Human Rights Association, wrote a few days after the ruling: “The development and application of the principle of universal jurisdiction by the Spanish courts has been, perhaps, this country’s greatest contribution to the international community in the defense of human rights. [But the] premises of international law are sidestepped by states that wish to perpetuate unacceptable impunity. They do not try [these cases], or do not do so according to due procedural standards, they oppose the ‘meddling’ of universal justice, and they neither sign the Statutes of the International Criminal Court nor accept its competence. This deficit cannot be borne by the victims. These are entitled to justice, and the international community is obliged to provide it. Given the absence of a truly effective international criminal court, the principle of universal justice exercised in any country, not only Spain, is today the obligatory instrument for persecuting the most serious international crimes that destroy human dignity.” (El Pais, May 23).
According to Spanish lawyers involved in the lawsuit, the new ruling by the Spanish Congress on universal jurisdiction cases may be formalized within the next few weeks. The impact on the Tibet lawsuits depends on whether the law will be applied retroactively to cases introduced before this period, which includes universal jurisdiction cases relating to terrorists and drug dealers as well as crimes against humanity.
“One of the most serious institutionalised attacks against human rights”
Soon after the ruling was announced, prominent Spanish judges, the legal NGO for Prosecutors (Union Progresista de Fiscales), toscholars and human rights and legal organizations produced aManifesto on the Law Reform Introducing Limitations to the Exercise of Universal Justice, stating: “Current regulation of the universal jurisdiction principle in the Spanish law – and in international treaties to which Spain is a party – has enabled the prosecution of the most serious institutionalised attacks against human rights and, in particular, in such cases in which their effective prosecution in the country in which they have been performed is nonexistent and/or highly unlikely, on account of being state crimes, thus enabling to claim for the individual criminal liability of its authors and avoid the impunity of those committing such horrendous crimes. All of this ennobles the democratic nature of our judicial system and the moral height of this country in the collective commitment towards the defence of human rights. This commitment will be all the greater, if possible, while there is not an international criminal court that may exercise its jurisdiction effectively.
“It is indeed alarming that our political officials have agreed the introduction of limitations to the current law in the wake of affairs affecting world powers. It may well seem that the need to limit the protection of human rights arises only with regard to powerful nations.” (June 2, full text available in Spanish and English at http://www.fidh.org/MANIFIESTO-SOBRE-LA-REFORMA. The Manifesto is signed by 98 organisations and 329 individuals, listed here »).
In an open letter to the President of the Spanish government, Jose Luis Rodriguez Zapatero, a coalition of human rights and legal organizations including the International Campaign for Tibet, the Center for Constitutional Rights in the United States and organizations in Guatemala, Argentina and Israel, wrote: “Victims of the most serious crimes under international law, such as genocide, crimes against humanity and war crimes, from countries all over the world, will suffer the consequences if the proposed amendments to Spain’s Organic Law on Judicial Authority do become law. The adoption of the proposed changes to this legislation – which has until today constituted a mile stone in the fight against impunity for serious international crimes – will equally send a signal of impunity to potential perpetrators of such crimes. In this regard, Spain must not let diplomatic considerations prevail over the rule of law and the need for accountability and justice.” (June 24, www.fidh.org/OPEN-LETTER-TO-MR-JOSE-LUIS.)
- Spanish High Court rules that Chinese leaders must testify on Tibet – May 5, 2009
- ICT’s blog: In Search of Justice: Testifying on Tibet in Madrid
- A video interview with lawyers involved with the Tibet cases presented before the Spanish High Court can be viewed online at http://www.youtube.com/InterCampaignTibet