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Dropping the Tibetan Lawsuit Endorses Impunity of Chinese Perpetrators Responsible of Thousands of Tibetan Victims

March 3, 2010

Press Release
The Comité de Apoyo al Tibet (CAT)
1st March 2010

Dropping the Tibetan Lawsuit Endorses Impunity of
Chinese Perpetrators Responsible of Thousands of Tibetan Victims

CAT and co-plaintiffs Fundación Casa del Tíbet
and Thubten Wangchen, wishes to express its
deepest rejection and disappointment at the
shelving of the lawsuit and the weak legal
arguments wielded in the Central Court Nº 1’s
ruling. This rejection and disappointment is
especially motivated by the return to
helplessness and impunity that this ruling
implies for the victims of Chinese repression and
their families, many of whom had already testified in this court.

Although it is true that the shameful
modification of the law in order to restrict the
application of universal justice made it
necessary for the judge to reconsider the
viability of the case, it is equally true that on
21st December the CAT’s lawyers presented a
detailed document on the grounds of law to prevent this legal black hole.

To the political complicity with impunity we must
now add that of a legal decision supported by the
public prosecutor. The forceful arguments put
forward by the CAT’s lawyers showed with a wealth
of detail about national and international law,
that interpreting the law should necessarily lead
to the investigation being maintained rather than
shelved. But it appears that this abundance of allegations was not enough.

The CAT will of course appeal this decision and
informs that the other lawsuit for genocide and
various other crimes in court room nº 2 is still open.

BACKGROUND: The now closed lawsuit was accepted
on 5th August 2008 for various crimes of
repression committed in Tibet between 2006 and
2008 in a lawsuit opened in that court for crimes
against humanity in the brutal repression after
the demonstrations of 10th March 2008. A
subsequent extension to the lawsuit included the
crimes in the border pass of Nangpa La and the
massive population transfer of Chinese to Tibet.

SEPARATION OF POWERS:  The disgraceful sequence
of events was as follows: In spring 2009 the
judge Santiago Pedraz asked the Chinese
Government for permission to question three
current ministers against whom there was evidence
of their having committed crimes against humanity
by supposedly having organized ‘a generalized and
systematic attack against the Tibetan civilian
population, causing 203 deaths, more than 1,000
wounded and nearly 6,000 people arrested
illegally or disappeared’. Two days later the
Chinese Government demanded that Spain take
‘immediate and effective’ measures to withdraw
‘the false lawsuits’, one of them about the
Tibetan genocide, in order to ‘avoid damaging Sino-Spanish relations”.

Within weeks the PSOE and PP, in a burst of rare
mutual understanding, quickly amended for clearly
political motives Article 23.4 of the Law of
Judicial Procedure, which included the principle
of universal justice. Despite which the Vice
President, Mª Teresa Fernández de la Vega, and
the Foreign Minister, Miguel Ángel Moratinos,
both repeatedly declared that this amendment
strengthened ‘our commitment’ with this principle
and endowed it with ‘greater effectiveness”. In
view of the result, one can only wonder who this
commitment is with? Certainly not with the
victims. And what effectiveness were they
referring to ? That of juniversal justice or the effectiveness of impunity?

During the Spanish Prime Minister Zapatero’s
visit to Israel last October, the Israeli
President, Simon Peres, thanked him publicly for
shelving the Palestinian lawsuit concerning one
of the Gaza bombings (RTVE.ES / EUROPA PRESS
15.10.2009). Yet the law hadn’t even been changed
at that time. In this case, one wonders whether
congratulations and thanks have already been
received from the Chinese Government or whether
the triumph of impunity will be celebrated behind
closed doors at the next meeting on commercial agreements?

ARGUMENTS: Below are our arguments against this
decision to shelve the lawsuit and against some
of the points in Santiago Pedraz’s ruling, which
are as surprising as they are weak:

1) The judge declares: "No international treaty
or convention exists that obliges courts to try
the crime against humanity that this case
involves", when in fact this type of criminal
have been persecuted ever since the Nuremberg
trials, not only by Allied courts since 1945 but
also in 1961 by the court of the district of
Jerusalem and Israel’s Supreme Court (the
Eichmann case) in 1971, by the Bangladeshi courts
in the case requesting the extradition of
Pakistani officials to India in 1981, by the
Dutch High Court in the Menten case, and in 1983
by the French High Court in the Barbie case. More
recently the International Criminal Courts for
former Yugoslavia and Rwanda and the Statute of
the International Criminal Court have demanded
that these crimes against humanity be persecuted.

2) The judge similarly avoids going into detail
about the facts that led to an extension to the
lawsuit being presented, namely, the massive
transfer of the occupying population, Chinese, to
the occupied territory of Tibet, which
constitutes a serious violation of the Geneva
Conventions and is thus a war crime. Article 146
of said Geneva Convention lays down that every
State “has the obligation to pursue those persons
accused of having committed or having ordered
someone else to commit a serious violation and
should bring them before the courts regardless of their nationality."

3) The ruling to shelve the lawsuit also scorns
the idea that resolving conflicts through non
violence and encouraging peace should be
considered sufficient link to continue processing
the lawsuit. It would appear that this principle
- the backbone of the entire United Nations
system and all international human rights law, of
which Spain is part - is not valid in this case,
unlike the impunity of those who violate these
same fundamental rights. The ruling also ignores
that there are important cultural links with
China (conventions between universities, the
Cervantes and Confucius Institutes, etc) and does
not consider as such the many economic and
commercial deals that often lead to company
relocations that in turn leads to massive job loss in Spain.

4) The ruling also cuts short the preliminary
proceedings by, amazingly, applying the new
requirements of Article 23.4 of the Law of
Judicial Procedure both preventively and
retroactively, while choosing to forget that
during the course of these proceedings some of
the accused could travel to Spain and could  be arrested.

5) The CAT is deeply saddened by the legal
interpretation made by central Court Nº 1, which
now bases itself on the amended law and no longer
recognizes its competence not even for genocide,
despite precedents in the Audiencia Nacional
itself, like the Pinochet case or, more recently,
that of Central Court Nº 4, which on 26th
November 2009 considered the Spanish courts
competent to try war crimes in Iraq without
requesting any links of national connection.

6) We believe that international law has not been
interpreted in good faith as required by the
Vienna Convention (which is part of Spain’s
internal law), as what International Human Rights
Law wishes above all else is to put an end to
impunity, not to endorse it. In this respect the
Council of Justice of the European Union
(Decision 2003/335/JHA of 8th May 2003) makes it
the obligation of all EU States to bring to trial
and punish all those responsible for
international crimes, something the court has apparently ignored.

REACTIONS: Many Tibetan victims and their
families, such as Palden Gyatso, Takna Jigme
Sangpo and the young nuns of Drapchi prison, have
already expressed their deep concern at the
threat of being abandoned by Spanish justice
halfway towards the first glimmerings of legal
protection. One of the prisoners tortured at
Drapchi, Rinzin Choenyi, declared to El País that
“Spain should continue defending her independence
even if Chinese pressure is very strong. Spanish
democratic principles have no price." Similar
feelings were voiced in the same article (EP
3-06-09) by victims of other cases, such as those
of Falun Gong, the Sahara, Palestine and
Guatemala, who felt threatened by the at that
time possible alteration to the law. It is a sad
tale regarding the progress of our democratic
principles that we have to tell today.

The investigative lawyer who drew up the lawsuit,
José Elías Esteve, on hearing the news, declared:
"I’m ashamed that a country like Spain that calls
itself a democracy has given in to the
aspirations of dictators to bury the hopes of
thousands of victims of international crimes.
This decision not only insults the aspirations
for justice of the most helpless, while allowing
more deaths to take place with total impunity,
but this morally vile act that is in opposition
to what should be the aims of a state governed by
rule of law, clearly shows us in whose hands our political leaders lie."

CONCLUSION:  To conclude by echoing the words of
Carlos Castresana (prosecutor who triggered the
Pinochet case) on another occasion and who has
been a source of inspiration in this battle for
justice in Tibet, our political leaders and many
of those who interpret the rights of the victims
so restrictively “are blind to the world of
values, bow down before domineering power
relations, are insensitive to judicial solutions
to conflict and are incapable of meeting the
human needs of the victims and those who suffer."

End of PRESS RELEASE

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CAT: Comité de Apoyo al Tíbet
Costa Rica 11 (1, A26)
28016 Madrid Spain
Tel. (0034) 91 350 2414
info@tibetcat.com

CTC National Office 1425 René-Lévesque Blvd West, 3rd Floor, Montréal, Québec, Canada, H3G 1T7
T: (514) 487-0665   ctcoffice@tibet.ca
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