Jul 03, 2005

Tibet: Spanish Lawsuit Against Chinese Authorities

On 28 June 2005 a lawsuit was filed against seven former Chinese leaders for crimes of genocide, crimes against humanity, torture and terrorism committed upon the Tibetan people, at the National Court (Audiencia Nacional) in Madrid, Spain
Untitled Document
On 28 June 2005 the first known criminal lawsuit was filed against Jiang Zemin (former President of China), Li Peng (former Primer Minister of China) and five other Chinese officials for crimes of genocide, crimes against humanity, torture and terrorism committed upon the Tibetan people, at the National Court (Audiencia Nacional) in Madrid, Spain. This historic lawsuit is the first case seeking to define the Chinese State's treatment of the Tibetan people, where it is claimed that over 1 million Tibetan's were murdered or died at the hands of Chinese officials, and over 90% of the religious and cultural institutions destroyed. The lawsuit against former Chinese leaders will put severe pressure on Beijing and place the government's human rights record firmly in the spotlight, leading Tibetan dissidents said.

The case is being presented in Madrid to take advantage of Spain's laws against international human rights crimes.
Following Spain's positive legislation and judgments using universal jurisdiction to sentence State perpetrators of crimes against humanity, the lawsuit is the culmination of 8 years of academic research by Dr José Elías Esteve. Presented by the Comité de Apoyo al Tíbet (CAT, Committee for Support of Tibet), the lawsuit has also been co-signed by national and international human rights organizations, and supported by expert jurists (legal experts) and international Tibet Support Groups. CAT is a Madrid-based, a-political and secular NGO.

Despite three United Nations General Assembly Resolutions (1959, 1960, 1965) that condemned Chinese abuses and granted the Tibetan people the right to self-determination in 1960 there has been little international resolution to "promote universal respect for, and observance of, human rights and fundamental freedoms" for the Tibetan people. Reports by many legal experts and organisations, such as the International Commission of Jurists (ICJ) have repeatedly condemned Chinese actions in Tibet as an occupation and have considered Chinese Communist Party's systematic repression and acts in Tibet from 1950 to the end of the 1970's as a crime of genocide against the Tibetan people. "The international community's failure to take decisive measures on behalf of the Tibetan people reflects a biased passivity" says Dr José Elías Esteve, recipient of a Magna Cum Laude for his Ph.D ("The legal status of Tibet in international law," University of Valencia). "In the face of such inertia from the international community, the Tibetan people continue to face imprisonment, religious, cultural and economic discrimination, persecution and repression under Chinese policies whilst the current and historic perpetrators of such atrocities remain at large and in positions of authority within the CCP."

Human rights organizations and governments have long criticized the People's Republic of China (PRC) for their human rights record, and whilst the PRC have ratified the Genocide Convention and the Convention Against Torture, there continue to be frequent and detailed example of gross abuses of justice emanating from the country which claims to be under the rule of law. Such international organisations and documents explicitly state that their objective is to sanction and end impunity, and to prevent similar crimes from being committed in the future. "In launching this lawsuit, we are seeking a moral and legal answer to the acts committed upon the Tibetan people by the authorities of the People's Republic of China" says Alán Cantos, Coordinator of CAT. "The preference for non-judicial reports and findings has limited the Tibetans ability to gain meaningful reparation for their suffering- we will present the judge with the facts and the fundamentals of law in order for the empowered legal authorities to pass judgment upon. For the Tibetan people, for the principles of universal justice and for the moral fortitude of the international community, a judgment of the heinous crimes committed by the PRC and their representatives upon the Tibetan people remains imperative. We are happy that the Spanish legal system appears to be more and more capable of applying the universal law as it is written and not as governments and dictators prefer. I believe that such initiatives will provide the first step in seeking retrospective justice to the individuals and families involved."

Thubten Wangchen, a Spanish citizen and Director of Casa del Tibet in Barcelona has also co-signed the lawsuit, saying "This offers each Tibetan an opportunity to gain legal recognition for their suffering." He and his family directly suffered from the Chinese genocide: "The Chinese army took my pregnant mother away when I was a child, and I never saw her again. Later in my life I was also arrested and threatened with death. Until I became a Spanish citizen I couldn't have dreamed of participating in such a lawsuit, as I was without citizenship and feared repercussions."

Several Spanish judgments on Argentina and Chile have demonstrated that the legal infrastructure is willing to encourage such initiatives. Despite the restrictive interpretations of universal jurisdiction given by the High Court (Tribunal Supremo), the dissenting opinions in the Guatemala judgment, as expressed in this paragraph, must prevail: "By removing impunity for serious crimes against humanity such as genocide, the exercise of universal jurisdiction contributes towards peace and the humanization of our civilization. It contributes towards a more just world and a safer one, and towards consolidating international law rather than violence as the habitual method of solving conflicts."

Furthermore, many jurists and international human rights organizations are challenging such restrictive interpretations of universal jurisdiction. A recent Amnesty International report (13/05/05) claims that "The duty to respect the obligations of international law cannot be eluded", whilst the restrictive judgment in the Guatemala case is now being revised by our Constitutional Court. One of the dissenting judges who subscribed to the illegality of this interpretation is now the General State Prosecutor in Spain, Mr. Conde Pumpido.

The Committee for Support of Tibet revealed the lodging of the lawsuit at the start of a five-day human rights symposium on "Terrorism and Torture", at El Escorial, just outside Madrid.

High-profile dissidents Takna Jigme Sangpo and Palden Gyatso enthusiastically greeted the news at the human rights symposium, that was opened by chairman and top Spanish judge Baltasar Garzon on Monday with a round-table discussion.

"We are not against the material and economic development of China, which we welcome. But my purpose here is to tell the truth of my experiences and imprisonment and show there are no human rights in China," said Takna, who has spent half of his 79 years in jail for fomenting protests against Chinese occupation.

"I am upset that people keep talking about China and how it is developing -- but not about what is happening in Tibet," Takna said. "China has been exploiting and destroying Tibet. This conference will publicise our rights and suffering so people will listen to our experiences," he added.

Palden, whose dissident activities earned him 33 years in detention in prison and labour camps, wrote a book, Fire under the Snow, about his life-long struggle against Chinese occupation, which has been translated into a range of languages, including Spanish.

"China is like the snow covering us, and I am the fire underneath. I am still burning," Palden said. "China needs more human rights, more democracy. They have minorities of their own," added Palden, who said the international community too often "pays too much lip service" to the issue of rights and democratic freedoms.

Ngawang Sangdrol, a nun jailed for 21 years for demonstrating for a free Tibet, also addressed the symposium, remarking that Tibetans were united in their support of the Dalai Lama and stressing dissidents' belief in non-violence because "hatred only engenders more suffering and more hatred."
Ngawang, first jailed for nine months aged just 13, spent much of her sentence in the notorious Drapchi Prison in Lhasa before international pressure helped win her release three years ago, nine years before completing her prison term.

The dissidents all related tales of incessant beatings and other forms of torture, including receiving shocks from electrical cattle prods.

"The Chinese said that if we confessed they would be lenient -- but if not the punishment would be severe," Ngawang said. "Tibetans want to see the Dalai Lama back in Tibet and to be in charge of their own affairs," she told the gathering.

But few dare to speak out in Tibet, where exiles claim that some 430,000 people died in a 1959 uprising.

Garzon, who tried but failed to have former Chilean leader General Augusto Pinochet extradited to Spain to face human rights charges but who has been instrumental in pushing the concept of international justice, said governments had to lend unequivocal support. "We need widespread governmental and political support -- we must mobilise the legal system and make common cause," said the judge, whose efforts to see crimes committed in a third country tried in Spain came to fruition with the recent conviction of Argentine former naval captain Adolfo Scilingo. Scilingo was jailed for 640 years for torture and crimes against humanity after a trial in Madrid.

Palden said both Monday's lawsuit, which the CAT dubbed an "historic legal initiative," and the conference would send a hard-hitting message to Beijing. "We hope the legal process means the world will listen more. We have suffered so much, but we do not hate the Chinese. Our inner spiritual values are so strong we can carry our message to the world. The flame is still burning, it is not extinguished," he vowed.

José Elías Esteve and Alán Cantos, promoters of this legal initiative, conclude: "The right of reparations to victims and forgiveness cannot be appealed, nor can it be ceded to any political representative. It is the Tibetan victims and their families, the sole and true holders of this non-transferable right, who for the first time ask for the protection of a court of justice and wish to see their tragedy recognized after decades of fruitless resistance."

Comité de Apoyo al Tibet is a completely secular and politically independent NGO with nearly 20 years' experience, and is concerned solely with the survival of the Tibetan people and culture seriously threatened since the invasion by China.

Comité de Apoyo al Tíbet