(www.TibetanReview.net, Feb 15, 2008)
José Elías Esteve* and Alán Cantos* seeks to reassure that although the crime against humanity lawsuit in the Spanish court against some of the top retired Chinese leaders by and on behalf of Tibetan victims may seem to drag on, there are sound legal and procedural reasons underlying its seemingly slow progress and that one must also have an overall perspective of the case to appreciate its importance and significance.
Quite some time has passed since the landmark date of 10th January 2006 when Spain’s Audiencia Nacional (the Central Investigating High Court of Spain which deals with the gravest of crimes both national, international and universal, like terrorism, narco-trafficking, torture, murder, crimes against humanity, genocide, etc.) accepted the lawsuit against seven Chinese authorities for genocide, crimes against humanity, torture and state terrorism committed in Tibet and began investigations. Headlines in the press may have decreased but legal work and related outreach efforts continue in silence. Some people following this important case of universal justice in its purest state might have come to entertain the impression that no progress is being made and that once again justice is failing to fulfil certain expectations. This may seem to be the case, but it is not so. The aim of this article is precisely to explain what progress has been made in this lawsuit and, at the same time, clarify the legal particularities of universal jurisdiction in general and the mechanisms governing the Spanish courts in this specific case. We do not wish to convey false or idealistic optimism, but to explain the steps being taken and to distinguish between what may appear as abnormal to non-experts but is in fact normal and to be expected in cases of universal justice such as these.
Slowness is quite common to all cases of universal justice. Firstly, due to the saturation of the law courts in general and the Audiencia Nacional in particular, whose six judges tend to be overburdened with cases of serious national and international crimes. This is even more so in Spain, due to the multiplicity of cases of terrorism by ETA (Basque nationalist terrorism) and the investigations and recent mega-trial for the Madrid bombings in March 2004 committed by radical Islamists. The legal mechanisms in international justice are always more painstaking, as they require written communication in various languages, the translation of each and every document, and interaction at a judiciary, police and diplomatic levels between different states and between ministries and organs of these states. However, it is vitally important to understand that part of this slowness is precisely what constitutes the procedural guarantee that each step, declaration, action or omission is registered and controlled. It should be stressed that this is precisely what does not occur in politics, where speeches, intentions and promises fly in all directions according to the moment and convenience of individuals and parties who are slaves to economic and political interests, which are often uncontrollable even in the most advanced democracies. We can therefore say that politics and economics (see, for example, the stock exchange) are fast-moving and whimsical due to their fickleness, whereas justice, like science, is slow due to its precision.
However, before embarking on a description of the progress made in this lawsuit, it is important to distinguish between avoidable and inevitable reasons for this slowness, on the one hand, and between judicial and political interpretations, on the other. It is important to understand both the slow and fast sections of this railway track that, in some way, justice symbolizes. In short: the judge controls the progress of the lawsuit, but the prosecution, which represents the state, may request the judge to take certain procedural steps, and the lawyers acting on behalf of the victims (in this case, José Manuel Gómez Benítez and José Elías Esteve) also control the judge and may ask him to act in one direction or another and warn or even denounce him if he commits any procedural infraction or is unjustifiably inactive. But a lawsuit is not fought solely in the offices and corridors of the courts and between lawyers and judges. It is important to analyse carefully the constant to-and-fro between the judge, state prosecutor and plaintiff lawyers, the crossfire and mutual influence between the media and public opinion that is eager to assess every detail in its frustration, including what it doesn’t know or cannot in fact understand, just as in science.
Spanish democracy has already demonstrated its good health with regard to the separation between the executive and the judiciary by accepting extremely difficult and politically sensitive lawsuits such as those of Pinochet, Argentina, Guatemala and, more recently, those of Western Sahara and Tibet. The judiciary’s independence from the Government has, thus, been demonstrated, more so in the case of Tibet, considering the very recent economic, cultural and friendship ties to which the Spanish and Chinese governments have committed themselves. However, it is ironic to observe how everyone ignores this solid premise of judicial independence in order to gaily declare that it is a “very political” case. The reality, seen from the eye of the storm, is that despite the extra-judicial political influence that exists, it is counterproductive and often completely false to reiterate a suspected politicization of the case, which never existed as such and which, when one analyses the delays and obstacles, was often due to factors that are generally more judicial, bureaucratic and mundane than political.
Judges are not immune to the feeling on the streets or to history or commonsense, neither are they easy to “influence” as some people insist on thinking without knowing the facts. Their work is to analyse the evidence in the crimes in accordance with the laws concerning them, and their method is one of equanimity. They are trained to do this, and know that one of the most serious crimes they can commit is letting themselves be influenced, politically or otherwise, which is as serious, in fact, as trying to influence a judge in a legal decision. Both the judge who is influenced and the politician who tries to influence him can denounce the other for this crime. It is thus a serious risk and a bad idea for both of them to even begin a conversation destined to influence or to be influenced and be trapped in their unlawful intentions. Judges are also known to have considerable ego and self-esteem and, particularly, at this high level, will not easily take “advice”, let alone influence of any sort from anybody. More often than not, in stronger democracies, it is usually the press and public opinion that spread the cliche of “influenced judges” when a judicial decision does not fit their personal opinion or political agenda. So we believe that it is dangerous to air the suspicion or to speculate without any proof about the Government’s influence over the judges in cases of universal justice. What could be considered reasonable control or criticism can end up throwing unreasonable suspicions and discrediting these initiatives that have done so much towards reducing blatant impunity throughout the world.
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Let us now analyse how the case has evolved. As a result of the lawsuit’s acceptance for processing, the plaintiff requested the Court in writing to begin the preliminary proceedings. The Court was asked to request a rogatory commission (interrogation in situ through consular legal services) so that the defendants could be questioned through the judicial authorities of the People’s Republic of China. Likewise, and in order to duly verify the events, the Court was requested to set a date and time for the declarations to the said Court by a series of witnesses and victims of the crimes denounced in the lawsuit.
In reply to these petitions, the investigative judge of the Central Investigative Court nº 2 of the Audiencia Nacional issued a court order on 13th March 2006 in which, solely at the request of the prosecution, the Spanish Foreign Ministry was asked to provide the Court with the United Nations’ resolutions regarding the case of Tibet, together with documents regarding the victims, and to inform the Court on the veracity of the posts held by the defendants [1], while completely ignoring the proceedings requested by the Comité de Apoyo al Tíbet (CAT). In its reply to the Court, the Ministry stressed the fact that “This matter is particularly sensitive and the Minister is giving it his full personal attention”. Why such special attention? In order to ensure that the genocides do not remain unpunished, as international law demands? Or, so as not to upset Sino-Spanish commercial and governmental relations? This is an example of the fine line that separates the judicial from the economic and political which in this case has been touched but not crossed.
Soon afterwards, on 17th April 2006, the plaintiff presented a written allegation as a reaction to this court order, demanding that the proceedings announced be annulled. The basis for this request was that the judge had agreed to proceedings that were “useless, contrary to law, and delaying tactics”. It was pointed out that, on the one hand, the United Nations’ resolutions had already been presented by the plaintiff, together with the pertinent official references, and therefore it was the obligation of the Court rather than the Foreign Ministry to familiarize itself with and/or verify them; while, on the other hand, wishing to verify the posts held by the defendants was considered a “malicious delay” and could be taken to mean that false data had been presented in the lawsuit. Lastly, it was pointed out that it was not the responsibility of the Foreign Ministry to have data regarding the victims and that the precise way to accredit all these data was by proceeding with the proof of evidence already mentioned in the lawsuit, which demanded that the victims themselves be called to declare before the judge. These proceedings had not been contemplated in the court order, unlike those proposed by the state prosecutor, so the Court was warned that these proposals could be contrary to the fundamental right of not being subjected to suffer undue delays (art. 24.2 of the Spanish Constitution)[2].
On 16th May 2006 the investigative judge of this case issued another court order in which he briefly concluded that for the proposed nullity to be declared there would have to be defencelessness through a complete disregard for the essential rules of procedure, which he did not consider was the case, nor could he detect any technical defect. Further to the first court order, he issued another one in which he did, this time, request an international rogatory commission to the United Kingdom and Canada for the interrogation of two witnesses about the alleged Tibetan genocide. At the same time, he also called the witness and victim with Spanish nationality, Thubten Wangchen[3], to present his declaration, once again making no mention of the questioning of the defendants.
On 5th June 2006, the first victim of the Tibet case, Thubten Wangchen, as private prosecutor and also as Director of Barcelona’s Fundación Casa del Tíbet (the other co-plaintiff together with the CAT), made his declaration to the judge of the Audiencia Nacional. The testimony of co-plaintiff Thubten Wangchen caused angry protests from the Chinese government, whose Foreign Ministry spokesman Liu Jianchao declared to the international press that the investigations into the so-called international crimes committed in Tibet were “complete libel and an utter lie” and were part of the ‘splittist’ intentions orchestrated by the “clique of the Dalai Lama”. The government in Beijing also called in the Spanish ambassador in the Chinese capital, to hear its protest against the actions of the Spanish courts, stating that the use of human rights issues in Tibet was just an excuse to interfere in China’s internal affairs[4]. The Government went on to add that not only did it object to this external interference by Spanish judges, but it openly declared that the Spanish courts had no jurisdiction to judge this case, while at the same time it hoped the Spanish government would attend to its petition to “deal appropriately with this problem, so that Sino-Spanish relations could, with effort from both parties, continue to develop in a healthy manner”; this declaration quite clearly reveals the nonexistent separation between the executive and the judiciary in China [5].
A month later, leading Tibetan poet and activist Mr Tenzin Tsundue submitted his testimony for legalisation at the Foreign and Commonwealth Legalisation Office in London, detailing the atrocities he witnessed and experienced whilst imprisoned without trial in Tibet. His testimony, still to be ratified at the court, is the first to be submitted in the UK through this legal channel, which permits victims to deliver their evidence to the Spanish Court from other countries.
Subsequently, on 16th November 2006 the plaintiff wrote again to the court, again requesting (as in the document of 7th February 2006) that a date and time be set for the testimonial procedures and for the court to call 10 Tibetan victims and 3 non-Tibetans to declare in court: Dr Eric Rasmussen (the doctor who examined and confirmed the tortures inflicted on victim Palden Gyatso), Dr Blake Kerr (the doctor who worked for months in Tibetan hospitals and collected evidences of forced abortion, sterilization and infanticide, and Dutch citizen Christina Meindersma who received a bullet wound when, as a tourist in Tibet, she witnessed a violent repression by Chinese police. The document also enquired about the state of the rogatory commissions to the United Kingdom and Canada, about which no news had been forthcoming since they were set in motion six months earlier.
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Soon afterwards, in a court order on 28th December 2006, the investigative judge Ismael Moreno admitted not having received any documentation whatsoever regarding either of the rogatory commissions, and requested the INTERPOL and the Ministry of Justice’s Subdirección General de Cooperación Jurídica Internacional to inform the court on the state of these commissions.
Later, in a court order on 19th January 2007, the judge declared that although the rogatory commission had been received in Canada, it had been impossible to get in touch with the witness in the United Kingdom, for which reason the Court requested another address for that witness in order to be able to carry out the said commission. Several weeks later, in a court order on 26th February 2007, the judge asked for the names and addresses of the victims whose appearance in court had been requested months earlier, together with a list of questions for each of them.
In reply to this court order, the judge was requested to give orders that the declarations of victims and witnesses be made in person at the Audiencia Nacional, rather than through a rogatory commission, and a list of questions and addresses was provided, as requested. The investigative judge, Ismael Moreno, replied in a further court order on 17th May 2007, refusing the request and giving orders for rogatory commissions to be lodged in Belgium, India, Sweden and Holland.
Once again an appeal was lodged against this last court order, alleging that the refusal to bring the victims to court constituted an undue and unjustified delay in violation of article 24.2 of the Spanish Constitution, more so when the plaintiff had offered to cover all costs and expenses for bringing the said witnesses to testify in court.
A few weeks later, after hearing the prosecution’s report, the judge issued a court order on 12th June 2007, in which he rejected the request made in the appeal, arguing that no legal precept existed that obliged a witness to declare before the competent investigative judge, as contemplated in paragraph one, Article 422 of the Spanish Law of Criminal Prosecution.
Not accepting this decision, the associations that together made up the plaintiff decided to appeal to the Criminal Court, Section Four of which issued a court order on 27th July 2007, rejecting the aspirations of the victims’ associations, as it considered that the Law of Criminal Prosecution was being correctly applied, as, given that the witnesses lived abroad – that is, outside the judge’s municipality – it was completely applicable for these declarations to be made with judicial help through the procedure of rogatory commissions.
The latest communication received from the judge dates from 19th October 2007, when the court declared that the INTERPOL had informed the Central Government of India of the Spanish Court’s order to collaborate in the questioning, through a rogatory commission, of a series of victims and witnesses proposed by the CAT, which included an employee of the Tibetan Centre for Human Rights and Democracy, Jampel Monlam, and the sadly well-known monk, Palden Gyatso, who has narrated his heart-rending sufferings in his autobiography “Fire Under the Snow”. The reply from the Indian government was devastating, as it concludes by saying that India “does not recognise the principle of universal jurisdiction”, therefore refusing to carry out any judicial cooperation with the INTERPOL, while arguing that the apparent crimes had not been committed on Spanish soil, so Spanish courts were not competent to try them – a declaration that to all appearances violates the most basic rules of International law and is utterly inappropriate for a democratic country based on the rule of law, like India.
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Lastly, it is important to stress the importance of the cohesion of the social support given yo the lawsuit by Tibetan victims and institutions and the rest of the world. We think that the law courts are of maximum importance for the case of Tibet, not only as an instrument of peace, capable of bringing consolation and reparation to the victims, but also as a mechanism of international denunciation and pressure against the permanent abuse of human rights in China and many other crimes of international nature, such as economic and environmental crimes. It is no excuse to say that the process of law is unfamiliar, or that for the moment this door has only been opened in Spain, or that it is not much used by the international Tibet support movement. Ignorance and fear (political, diplomatic or economic) have never been valid excuses for failing to support or encourage the basic principles of co-existence and democratic reconstruction that all governments, including the Tibetan Government in Exile, are always boasting about. However, it is precisely this ignorance and fear that the Chinese authorities use at will to perpetuate their impunity.
International criminal justice includes the well-known international justice and universal justice that stem from the conventions on genocide and on torture, the Statute of Rome and other treaties that have been ratified by most countries. This ratification is not merely symbolic, it also obliges the signatory to incorporate those crimes to its domestic legislation, as Spain and many European and other countries have done to varying extents. Prosecuting these crimes is not only a right, but a legal obligation when there is evidence and proof for the various crimes specified by these treaties. International criminal justice is, in our opinion, an act of SATYAGRAHA, as it contains the main elements defined and put in practice by Gandhi and which are considered to inspire the Tibetan movement: it is based on the truth, the power of love (for the victims), the power of truth, and non-violence. It constitutes an active, effective and preventive resistance to the violation of human rights, their repetition and continued impunity. The justice sought by this initiative and so many others within universal jurisdiction has nothing to do with vengeance or revenge, as the legal system within most modern democracies do not contemplate the death penalty, and even the possible punishment with a jail sentence is constitutionally aimed at social rehabilitation rather than at harming the condemned.
In this regard, the team behind the lawsuit has dedicated itself to two main tasks: progress in court, through the investigative and procedural lawyers, and the task of outreaching. We have given conferences on different aspects of the lawsuit and its progress in Spain, France and the United Kingdom, including the British and Scottish Parliaments. We are planning to tour several cities in the United States and participate in several conferences on universal justice in Spain, the United Kingdom, Chile, Argentina and The Hague (Holland), to commemorate the tenth anniversary of the first case of universal justice (Pinochet) and the Statute of Rome, which gave rise to the setting up of the International Criminal Court that has been running since July 2002. At these conferences we have shared tables with and received help from many individuals, support groups, universities and other institutions. We have been accompanied by distinguished colleagues and legal experts from many countries.
The success of the historic acceptance for the processing of this lawsuit is sending out a loud message to other young and not so young lawyers and representatives of Tibetan victims who are already working on similar lawsuits in other countries. This work of spreading information, outreaching and legal advice is one of the most important advances or positive consequences of this lawsuit. And in this regard we would like to stress the tireless work of the small but growing team of the CAT, and in particular Emilie Hunter (Coordinator of the Human Rights Law Centre of Nottingham University) and Tyler Gillard of SOAS, University of London, in charge of these tasks in the United Kingdom in addition to fundraising, working with the local and international media and organizing conferences.
International criminal justice, as a peaceful method of restitution to the victims and fight against impunity – not just this lawsuit – needs everyone’s support for its effective application. Our initiative is only the first of many legal actions that can and will arise in the not too distant future in other countries where victims need justice, the criminal evidences exist and the legal system permits it.
(Footnotes)
[1] Court order of 13th March 2006, Central Investigative Court nº 2 of the Audiencia Nacional, Preliminary proceedings 237 / 2005 – J.
[2] Allegations of 17th April 2006 roundly presented by the court lawyer for this case Ldo. Prof. Dr. José Manuel Gómez Benítez.
[3Exiled Tibetan victim, Tenzin Tsundue, also made a declaration in the United Kingdom, cfr. COONAN, CLIFFORD: “Tibetan dissident to accuse Chinese of torture and genocide”, The Independent, Beijing, 3 July 2006.
[4] “Pekín convoca al embajador español para quejarse de las imputaciones de genocidio” [“Beijing calls the Spanish ambassador to complain about accusations of genocide”], El País, 9 junio 2006.
The criticisms were published by the official Chinese agency, Xinhua, “Interference in Tibet issue opposed”, Xinhua – China Daily, Beijing, 7 June 2006 and by all the international press, cfr. “China warns Spain over Tibet lawsuit”, International Herald Tribune, Agence France Presse, Reuters, The Associated Press, 7 junio 2006
Adding to the violent reaction by the Chinese authorities, the same week that the first Tibetan victim declared in the Audiencia Nacional, the Supreme Court ordered the acceptance of another lawsuit against high-ranking Chinese officials for the crime of genocide against the followers of Falun Gong.
[5] REINOSO, JOSE: “China califica de calumnias las acusaciones contra varios de sus líderes” [“China calls the accusations against some of its leaders slander”], El País, Beijing, 10 June 2006. This article publishes part of communiqué of the Chinese authorities to the news agency Associated Press.
* José Elías Esteve is Associate Professor in International Law at the University of Valencia and his PhD thesis on the legal status of Tibet was unanimously awarded the Magna Cum Laude, the University of Valencia’s highest award for a PhD thesis by a panel of 5 top internationally renowned legal, political and human rights experts, including Pastor Ridruejo, Spanish Judge at the European Human Rights Court in Strasbourg. He is also the legal advisor to Cocentaina Municipal Government and is Vice President of CAT, the Spanish Tibet Support group which is the main mover of the current genocide case.
Alan Cantos, the director of CAT, has been involved in the production of award winning documentaries and other films. He is a trained Physical Oceanographer who has participated in European Commission funded oceanography projects and has been running the CAT’s fundraising and campaigning activities.