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KATE SAUNDERS
THE HIMALAYAS

Kate Saunders is the Communications Director of International Campaign for Tibet.

Spain hears Tibet lawsuits, upholds universal jurisdiction

These cases will provide a much needed voice to the otherwise silenced Tibetans.

Candles spelling Free Tibet.

"I thought you were going to be a terrorist," the translator said, clutching my arm as we emerged from the chambers of Judge Ismael Moreno in Spain's Criminal Court. Just after Christmas, I travelled to Madrid to ratify a report connecting the chain of command in China's Communist Party government to oppression in Tibet. In some of the cases she'd worked on, the translator said, terrorists or hardened criminals went down on their knees in front of the judge and denied everything.

Not in this case. I was in court with two Spanish lawyers and the judge at a key stage in two ground-breaking lawsuits in Spain upholding the principle of "universal jurisdiction" — a doctrine that allows courts to reach beyond national borders in cases of torture, terror and other serious international crimes perpetrated by individuals, governments or military authorities.

Ratifying our report in Madrid brought a group of Spanish lawyers and Tibet activists closer to their objective of arrest warrants being served to several Chinese leaders for policies on Tibet.

Cases of universal jurisdiction have been pursued in Spain ever since a group of progressive Spanish lawyers put together a lawsuit against Chilean dictator Augusto Pinochet, who presided over a 17-year reign of terror and ordered foreign assassinations. Pinochet's arrest in London in 1998 was the result of a year-long struggle by prosecution lawyer Carlos Castesana and Madrid judge Baltasar Garzón to bring Pinochet to account for the brutality that followed his overthrow of the government of Salvador Allende.

Pinochet, who died in 2006, was subsequently released by the UK "on humanitarian grounds" as a last resort political decision and allowed to travel back to Chile, but British law had by then agreed to his extradition to face trial in Spain and the precedent had been set. It was the first time that several European judges applied the principle of universal jurisdiction, declaring themselves competent to judge crimes committed by former head of states, despite local amnesty laws.

The two Tibet lawsuits came into being thanks to the expertise and matador-like brio of lawyer and legal scholar Jose Elias Esteve and oceanographer and Tibet supporter Alan Cantos. Needless to say, the Chinese government has sought to quash the cases through direct intervention with the Spanish government and judiciary. "They used language that would make even Fidel Castro at his most obsessive sound mild," said Alan Cantos. Ignoring the separation between state and judicial system that is fundamental to a healthy democracy, the Chinese authorities also threatened to arrest and deport one of Spain's most senior judges, who had accepted one of the lawsuits and proposed talking to the defendants in China to hear their arguments during the preliminary proceedings of the case.

Unfortunately, under pressure, Spain changed the law to say that cases of universal jurisdiction had to involve Spanish citizens (in direct contravention of the universality principle of the law), and one of the Tibet lawsuits was rejected. Jose and Alan did not give up, even when they lost an appeal against the move in the Supreme Court. While I was in Madrid, they submitted a dense and carefully argued document more than 60 pages long appealing to Spain's Constitutional Court, arguing the violation of fundamental rights in the whole process and calling for the reopening of the case.

Our report, ratified to the judge in Madrid, outlined details of the chain of command for specific policies in Tibet — from the imposition of martial law leading to torture and a climate of terror, to systematic patriotic education, compelling Tibetans to denounce their exiled leader the Dalai Lama. We described how the functions of the Communist Party override those of the Chinese state at all levels, and named specific leaders including Hu Jintao, formerly the top Party boss in Tibet, and Jiang Zemin.

Alan Cantos explained: "Our motivation from the beginning has been to explore the many mechanisms that exist for making the Chinese leadership accountable through applying international law and universal jurisdiction. If arrest warrants are issued for the Chinese leaders, it will be an arrangement through Interpol, not through the host government." He adds: "Everyone understands when drug-traffickers on board a ship in international waters are arrested and tried, even when they are not in their own country. So why is it any more difficult to accept why people guilty of much more significant crimes against human beings cannot be made accountable through an international court?"

There is another objective, too. The Tibet lawsuits are not only aimed at seeking justice for the Tibetan people. They also provide an opportunity for individual Tibetans who have undergone immeasurable suffering due to Chinese policies to bear witness.

One young Tibetan man gave evidence to Judge Santiago Pedraz about his brother, who was beaten to death by police in Tibet in 2008. I asked him how he felt about speaking directly to the judge about his story. "It means so much for me to be able to tell the judge about my brother," he told me. "The Chinese want to silence us as Tibetans. They don't want anyone to know about the death of my brother and of other Tibetans in prison, and they don't want to be called to account for their actions. So this court case is important because it is a step towards seeking accountability. Nothing can bring my brother back. But this is one thing I can do for him — to speak about his life, to honour him."

 
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