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"I believe that to meet the challenges of our times, human beings will have to develop a greater sense of universal responsibility. It is the foundation for world peace."

Law and Reality in Occupied Tibet

June 14, 2008

Tarini Mehta
IndLawNews
June 13, 2008

Can we say that the age of colonialism has ended when there are
nations still controlled against their will by another? Tibet, once a
sovereign state with a unique system of government, culture, language
and religion was invaded in 1949 by 35,000 Chinese troops. What
followed was a large scale massacre of the Tibetan people and their
traditions. Anger over Chinese occupation led to an uprising in 1959.
The official death toll in Central Tibet alone during and immediately
after this uprising was about 87,000. Tibetans claim that 430,000
people died during the uprising and the subsequent 15 years of
guerrilla warfare, which lasted until America withdrew its support of
the movement in 1971. Since 1959 thousands of Tibetans have followed
their political and spiritual leader, Dalai Lama into exile, in an
attempt to lead a life of some dignity.

The United Nations passed a resolution[1] in 1959 calling for respect
for the fundamental human rights of the Tibetan people and for their
distinctive cultural and religious life based on the principles of
fundamental human rights in the Charter of the United Nations and on
the Universal Declaration of Human Rights. This was not complied with
and 1961 saw another resolution[2] stating that the principles of the
Universal Declaration of Human Rights be followed and Tibetans be
granted their rights, including the right to self determination. The
same was repeated in 1965 by the United Nations General Assembly[3].
In May 1991 the Senate of the United States of America passed a
resolution declaring Tibet an occupied country whose true
representatives are the Dalai Lama and the Tibetan Government in
Exile[4]. Over the years many more resolutions have been passed by
various international bodies.

China''s occupation of Tibet and the transfer of millions of Chinese
into Tibetan territory is illegal. Population transfer involving
resettlement into an occupied territory violates the Fourth Geneva
Convention, which China has ratified. The Convention makes irrelevant
China''s claims to sovereignty over Tibet. Under Article 49 of the
Convention, an occupying power may not "deport or transfer parts of
its own civilian population into the territory it occupies" and
applies to belligerent occupations and prolonged occupations once
military operations have ceased.[5]

In 1959 the International Commission of Jurists Report (ICJ) leveled
the following allegations against China: Systematic disregard for the
obligations under the Seventeen-Point Agreement of 1951; Systematic
violation of the fundamental rights and freedoms of the people of
Tibet; Wanton killing of Tibetans and other acts capable of leading
to the extinction of the Tibetans as a national and religious group,
to the extent that it becomes necessary to consider the question of Genocide.

The seventeen point agreement was signed by the Dalai Lama and Mao Ze
Dong in 1951 under which the Chinese Government agreed to maintain
the political system of Tibet, the positions of the Dalai Lama and
Panchen Lama, to protect freedom of religion and refrain from
compulsion in the matter of reforms in Tibet. The ICJ report points
out that Chinas violation of this agreement means that the Tibetan
government is also freed from its obligations, and hence regains the
sovereignty which was lost under the agreement.

Genocide is an extremely grave crime to be accused of. The mens rea
(intention) and actus reas (act) of genocide is given in the
Convention for the Prevention and Punishment of Genocide, 1948. The
actus reas involves killing, causing serious physical, mental harm or
subjecting a group of people to living conditions that will lead to
their destruction, the use of birth control measures and the forced
transfer of children. The mens rea is defined as the intention to
destroy in whole or in part a national, ethnic, racial or religious
group as such.[6]

Evidence has been found of the actus reus of genocide in Tibet. The
ICJ [7] report states that the killings were on a wider scale than
that of religious groups. Particular attention should be paid to the
evidence of indiscriminate air attacks, and of deliberate shooting of
Tibetans who were in no way engaged in hostilitiesIt should also be
stressed that the alleged deportation of 20,000 Tibetan children is
directly contrary to Article 2 (e) [Convention for the Prevention and
Punishment of Genocide] It can clearly be seen that a systematic
intention to destroy a nation fuelled the massacres that took place.
A further ICJ report in 1960 also found that China had committed
various other violations of human rights such as carrying out
arbitrary arrests and detentions, denying freedom of speech, thought,
religion, movement, forcefully confiscating private property, denying
the right of free assembly and association, denying the right to an
education and so on.

Let us look at a statement by a Tibetan living under Chinese
oppression. "It has been told to me that more than 2,000 Lamas had
been killed by the Chinese. I have personal knowledge of such attacks
on 17 Lamas...My experience of four years'' work with the Chinese
convinced me that their propaganda was false and that their real
intention was to exterminate us as a race and destroy our religion
and culture. [8]

Over 1.2 million Tibetans have been killed from 1949-79. The Tibetan
Government in Exile gives a breakdown of how these deaths occurred: [9]

MODE OF DEATH     U-Tsang district  Kham district  Amdo district   TOTAL

Tortured in
prison         93,560             64,877        14,784               173,221

Executed                    28,267             32,266        96,225
             156,758

Killed in
Fighting        143,253            240,410        49,042               432,705

Starved to
death        131,072             89,916       121,982                342,970

Suicide                        3,375              3,952
1,675                   9,002

"Struggled" to
death    27,951             48,840          15,940                  92,731

Total                        427,478            480,261
299,648                 207,387

Torture is still used in prisons and labour camps, even though in
1988 China ratified the UN Convention against torture and other
cruel, inhuman, or degrading treatment. In November 2005 the United
Nations Special Reporter on torture visited China and Tibet and
confirmed that torture was still very widespread, leading to a
culture of fear. The kinds of torture that take place are vividly
described by him:

beatings; use of electric shock batons; guard-instructed or permitted
beatings by fellow prisoners; use of handcuffs or ankle fetters for
extended periodssubmersion in pits of water or sewage; exposure
toextreme heat or cold, being forced to maintain uncomfortable
positionsfor long, sometimes with objects held under arms;
deprivation of sleep, foodwater; prolonged solitary confinement;
denial of medical treatment and medication; hard laboursuspension
from overhead fixtures from handcuffs[10]

[11] Our robes were removed and we were left in our shirts. I was
given electric shocks all over my body, including my breasts,
genitals, gums and tongue.  They kept asking me: "Why did you raise
these slogans?" -Ngawang Choedon, a nun who was given a three year
sentence for participating in demonstrations against Chinese rule.

Palden Gyatso, a monk, remembers, Some of us were made to sign
confessions of guilt and voluntary agreements to be executed.  There
were cases where prisoners who refused to sign such "confessions had
a pen forced into their hands by Chinese who then guided it across
the paper.  After the reading of their crimes the condemned persons
were shot one by one. I particularly remember one monk from Ganden
Monastery who did not die even after being shot seven times.  To our
greater horror the executioner dragged him to the pit and buried him alive.''''

"They forced me onto a table, inserted an electrical device into my
uterus and left me alone like that for hours, bleeding profusely.
Then they came and inserted some kind of spatula, twisting it round
and round, scraping the fetus out in small pieces. It took so long I
thought I was going to die from the pain. They gave me no
anesthetics.'''' Tashi who underwent abortion with no anesthetics.

"Reports of women being raped by electric cattle prods are numerous.
Other perverse crimes, such as cutting off a woman''s breasts are
reportedly becoming more prevalent." Report by the International
Committee of Lawyers for Tibet, 1995 [12]

Since China invaded Tibet, there has been continuous destruction of
this Buddhist society. On 1st July, 2006 the worlds highest railway-
the Beijing-Lhasa railway was opened. In the build up to this senior
party leaders stated that they aim to increase their focus on the
anti-seperatist struggle in Tibet[13]. The Dalai Lama is considered
to be a separatist trying to break up the mother land[14]. At a
meeting in the Tibetan Autonomous Region that year the party
secretary Zhang Qingli stated that the party is engaged in a fight to
the death struggle against the Dalai Lama and all those who support
him. Also, this railway will bring thousands of Chinese into Tibet,
thus making the Tibetans a minority in their own country.

Further, all this development is not benefiting Tibetans. The
Majority of Tibetans are poor. According to the UN Development
Program, Tibet is the poorest and least developed region of China
with a human development index of only 0.39 placing it within the
bottom 12 of a list of the world''s 49 officially recognized "least
developed countries", between Rwanda and Mali. This compares with
China''s HDI currently listed by the UNDP as .718 and belies claims
that economic development and poverty alleviation programs on the
plateau have produced significant results for the Tibetan people.[15]
Further, Carole Samdup states in her article that financial
incentives given to Chinese working in Tibet have resulted in an
increased migration into Tibet, while Tibetans suffer at the hands of
discriminatory economic and social policies.

China is overcoming water scarcity, one of the major problems it now
faces, by using Tibets rich resources. Eight dams have been planned
in the Mekong River basin- two of which have been completed. Several
down-stream countries allege that indiscriminate operations have
affected their agriculture and tourism as well as caused devastating
floods. Work on the project to divert the river Brahmaputra (which
has hydro-potential twice that of the Three Gorges Dam) is scheduled
to start next year and could cause major water shortage in India and
Bangladesh.[16]

China is also reported to have stationed approximately 90 nuclear
warheads in Tibet, and the Ninth Academy, Chinas academy for nuclear
research located in Amdo, Tibet, has dumped a large quantity of radio
active waste in Tibet.  According to a report released by
International Campaign for Tibet:

Initially, waste was put in shallow, unlined landfills ...The nature
and quantity of radioactive waste generated by the Ninth Academy is
still unknown....During the 1960s and 1970s, nuclear waste from the
facility was disposed of in a roughshod and haphazard manner. Nuclear
waste from the Academy would have taken a variety of forms - liquid
slurry, as well as solid and gaseous waste. Liquid or solid waste
would have been in adjacent land or water sites. [Nuclear Tibet,
Washington, DC, 1993, p.18] [17]

Chinas activities pose a grave threat as environmental problems in
Tibet have major trans-boundary effects, notably on India, Pakistan,
Bangladesh, Vietnam, Laos, Cambodia and other Asian countries. Nearly
half of the global population depends on the rivers of Tibet for
survival. The potential for devastation will increase as China
continues damming, deforestation, dumping radio active waste,
extensive mining and other hazardous activities. One can only imagine
the future crisis that this will create and the effect of this on the
rest of the world.

As Chinas power grows there is no country willing to take a firm
stand on the issue of Tibet. All support is tacit and mainly involves
giving Tibetans refuge. No concrete steps have been taken by the
United Nations or any government to find a way through which Tibet
may gain freedom. The current British position is best described
through a statement made in October 1995 that "Successive British
Governments have consistently regarded Tibet as autonomous, although
we recognise the special position of the Chinese there" and that
"Independence for Tibet is not a realistic option as Tibet has never
been internationally recognised as an independent state"
(''Government Policy on Tibet'', a Statement from the Foreign and
Commonwealth Office). However, the truth is that Britain did
officially recognise Tibet as being independent up until the Chinese
invasion in 1949 and British representatives were stationed in Tibet
to liaise with the Tibetan Government from 1904-47.[18]

The latest attempt at consolidating their control of Tibet takes the
form of a law prohibiting Buddhist monks from taking birth again
without the governments permission, which only monasteries in China
can apply for. Order no. 5 of the State Administration of Religious
Affairs is stated as being the management measures for the
re-incarnation of living buddhas[19]. If one believes in the theory
of re-birth then this is ludicrous, as earthly laws cannot control a
person after death. That the communist party does not subscribe to
such spiritual doctrines makes this law more ridiculous. This
legislation would aid the Chinese in instituting their own Dalai
Lama, as they have done in the case of the Panchen Lama. The
difference being that while the Panchen Lama was abducted by the
Chinese Government at the age of six, through this law the Chinese
will be able to instate their own Dalai Lama through legal means. In
addition this law completely removes any hope of freedom of religion
or thought for Tibetans in Tibet.

Though the Chinese have captured Tibet, they have not been able to
wipe out the Tibetans sense of identity. A dedicated movement
advocating the freedom of Tibet continues to work against all odds.
Several support groups in the West and Asia are working together to
spread awareness on an issue that is fast dissolving into the
background of history, in order to create a momentum that will lead
to positive change. From a legal point of view in January 2006 the
Spanish High Court admitted a case of genocide against  seven Chinese
officials, the leading two being Jiang Zemin, former president of
China and Li Peng, Former Prime Minister [20]. The investigation
follows from a Supreme Court ruling allowing Spanish courts to accept
cases even when the victims are non-Spanish, based on a law enabling
them to exercise universal jurisdiction [21]. If the evidence proves
a case of genocide, this could lead to a request for extradition
through international arrest warrants. Just the fact that such a case
has been accepted is a major breakthrough for the movement for
justice in Tibet.

Are we simply going to watch while a great nation is systematically
plundered and destroyed? This issue is not a domestic matter between
China and Tibet, but as the International Commission of Jurists point
out What is at stake is the very existence of Tibet as a member of
the family of nations, and this matter concerns the whole family of
nations[22]. Before it is too late let us take a stand on this issue,
put pressure on governments and support the Tibetan movement for freedom.

"Even if no help is coming we shall fight to deathWe are fighting not
for a class or sect. We are fighting for our religion, our country,
our race. If these cannot be preserved we will die a thousand deaths
than surrender these to the Chinese." - Chaghoe Namgyal Dorje [23]

...Despair not, my beloved Tibet
For your children never bowed their heads,
Toil tireless into each sleepless night,
Cling and kindle that glimmer of hope,

Which rises like a flicker of a candle,
And when the times wind blows strong,
It will light the bonfire of freedom... [24]

(The author is pursuing a degree in law from the University of
Warwick, England.)

-------------------------------------------
Notes:
[1] Resolution no. 1353 (XIV)
[2]  Resolution no.1723 (XVI)
[3]  Resolution no. 2079 (XX)
[4] From Tibet Dossier: Chinas human rights violations and occupation
of Tibet, by Ven. Sonam Chokyi. Available at:
http://tibet.dharmakara.net/tibetdossier.html
[5] From Legal arguments in reference to the World Banks proposed
China Western poverty reduction project by International Committee of
Lawyers for Tibet, June 1999. This report states how the proposed
re-settlement of 61,775 non-Tibetans into Tibet violates
international law prohibiting population transfer and guaranteeing
the Tibetan people the right to self determination. It is also
pointed out that the project must be looked at in the context of
Chinas existing policies regarding transfer of ethnic Chinese into
Tibet and the human rights violations this has led to. The report is
available at: http://www.tibetjustice.org/reports/wbank/index.html
[6] International Commission of Jurists Report on Tibet 1959
[7] International Commission of Jurists Report on Tibet  1959
[8] Statement by Chaghoe Namgyal Dorje, International Commission of
Jurists Report on Tibet 1959
[9] The full report can be accessed from:
http://www.tibet.com/WhitePaper/white5.html
[10] To read the full report go to:
http://www.tibetjustice.org/reports/violence.html
[11] To read the full stories by survivors go to:
http://www.korubo.com/TIBETDOC/tibet.htm
[12] To read the full report go to:
http://www.tibetjustice.org/reports/violence.html
[13] Tibet News, June 30th 2006, International campaign for Tibet.
Available at: www.savetibet.org/news/newsitem.php?id=997&printable=yes
[14] From an article in the China Daily, October 29, 2001, reproduced
on the site of the Chinese Embassy in Switzerland:
www.china-embassy.ch/eng/ztnr/xzzt/t138752.htm
[15] Carole Samdup: The right to development on the Tibetan Plateau,
Human Rights Tribune, Spring 2002 Vol. 9
[16] China aims for bigger share of South Asias water lifeline, by
Brahma Chellaney, Japan Times, June 26, 2007. Available at:
www.globalpolicy.org/security/natres/water/2007/0626chinawater.htm
[17] A full analysis of the environmental situation in Tibet can be
found at www.tibet.com/WhitePaper/white9.html. This is a report
produced by the Tibetan Government in Exile.
[18] From Tibet Facts No. 17, written for Free Tibet Campaign by Sir
Algernon Rumbold, President of the Tibet Society of UK from 1977-88.
Available at: www.freetibet.org/info/facts/fact17.html
[19] How China Got Religion by Slavoj Zizek, The New York Times,
Published: October 11, 2007
[20] From the interview given by Emile Hunter, International press
officer for Comite de Apoyo del Tibet, the organization that
presented the case to the Spanish courts. Available at:
http://www.unpo.org/article.php?id=5175
[20] International Commission of Jurists Report on Tibet 1959
[21] For more information on this go to the website of Human Rights
Watch- http://hrw.org/reports/2006/ij0606/12.htm.
[22] International Commission of Jurists Report on Tibet 1959
[23] From the International Commission of Jurists Report on Tibet 1959
[24] This is an excerpt from Times Treachery by Bhuchung D. Sonam, a
renowned Tibetan writer. His recent work- Muses in Exile: An
Anthology of Tibetan Poetry, is a collection of writings in English
by 30 Tibetan poets. His work as well that of several other Tibetan
writers can be found at: http://www.tibetwrites.org/
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