Earlier this month, Spain’s Audencia Nacional accepted an appeal by a Spanish based Tibet advocacy group claiming that the Chinese government had supported “genocidal policies” in the Tibet Autonomous Region and initiated a probe. Among those indicted is Hu Jintao, the former President of the People’s Republic of China (2003-2013), who the appellants allege supported the policy while he was the Secretary of the Communist Party in Tibet from 1988-1992 and President of the nation almost a decade later.
The court cites two factors for the basis of Spanish jurisdiction in the matter, invoking the controversial doctrine of universal jurisdiction, which is recognized by the Spanish legal system. Firstly, one of the complainants, Thubten Wangchen, is a Spanish citizen and secondly there is no evidence that any Chinese authority or court has initiated an investigation into the complaints made initially in 2008.
The lawsuit claims that during the years Mr. Jintao led the administration in the Tibet Autonomous Region, many of the policies and measured implemented were aimed at “eliminating the idiosyncrasies” of an independent Tibetan identity and existence. The policies stated include the “implementation of Martial law, forced displacement, mass sterilization campaigns and the transfer of a large number of ethnic Chinese people to gradually dominate and displace the indigenous Tibetan population.”
The investigation could have serious consequences for Mr. Jintao, including possible preventive monetary and travel restrictions. Jose Elias Esteve Molto, one of the main Spanish lawyers representing the Tibetan cause, stated that if Mr. Jintao refused to co-operate with the investigation, he could face arrest in Spain and potentially the whole of Europe and any country with which Spain shares an extradition treaty.
Despite restricting its Universal Jurisdiction powers considerably in 2009, this is not the first time Spain has invoked the doctrine to initiate probes into matters where it considered grave human rights violations have been committed. In 1998, in a trial that has been described as having changed the “meaning of international justice,” a Spanish judge Baltasar Garzon indicted former Chilean Dictator General Augusto Pinochet, holding him responsible for the torture and disappearances of Spanish citizens in Chile under his rule.
The regime of General Pinochet, who seized power through a coup d’état in 1973, displacing President Salvador Allende was filled with grave human rights violations and the brutal repression of his opponents and critics, which had never been properly investigated previously.
An international arrest warrant was issued to Scotland Yard through Interpol. General Pinochet, who was in the United Kingdom undergoing medical treatment, was detained and arrested by the London Metropolitan Police, despite continuing to hold a Chilean diplomatic passport in October, 1998. After widespread debates and discussions, the British government decided not to extradite him in 2000, citing General Pinochet’s fragile health, leading to a petition by the Belgian government filed in the International Court of Justice to prevent his release. However, Pinochet was released in March, 2000 and returned to Chile where he faced further investigations before his death in 2006.
In 2005, the Spanish courts tried and convicted Adolfo Scillingo, a former Argentine Naval officer for his actions during Argentina’s “Dirty Wars” under Gen. Jorge Videla, who had seized power in a 1976 coup d’état following the death of President Juan Peron. Around 10,000 to 30,000 people are reported to have been killed or have “disappeared” during the military’s rule in the subsequent years.
Scillingo had earlier admitted to being aboard two planes, from which detainees were thrown into the ocean below. He was sentenced to imprisonment for 640 years by the Spanish courts. (Scillingo will only have to serve the constitutionally imposed limit of 30 years imprisonment for non terrorism related offenses.) Earlier in 1999, the Spanish courts indicted the members of the former Guatemalan leadership including former Dictator Effrain Rios Montt and former President Oscar Humberto Mejia based on a complaint filed by Nobel Peace Prize Laureate Rigoberta Menchu.
In 2009, the Spanish Parliament severely restricted the country’s power with regard to jurisdiction by passing legislation, which limited jurisdiction to only cases where the alleged perpetrator was in Spain, or if the victims of the crime were of Spanish nationality or if there was some other relevant link to Spanish interests.
Likewise, the act limited the jurisdiction of the Spanish courts in cases where another “competent court or international tribunal” had initiated proceedings or constituted an efficient investigation. This caused the closing of an earlier investigation targeting the actions of the Chinese leadership in Tibet, involving former President Jiang Zemin and Prime Minister Li Peng. The initiation of a probe by the Spanish judiciary is likely to strain the Spain-China bilateral relationship, but for the advocates of the Tibetan cause, it could be exactly the sort of monumental signal from a European nation that could reinvigorate their movement.