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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."

Justice Without Borders": The Viability of Universal Jurisdiction the Spanish National Court´s Historic Lawsuits for Tibet

August 1, 2010

Karen Collier
Internation Campaign for Tibet (ICT)
July 28, 2010

Scholar and writer Karen Collier gives an update
on the ‘new landscape of transitional justice'
and outlines how the work of two dedicated and
expert Tibet supporters, Alan Cantos and Jose
Elias Esteve, has tested the limits of the
Spanish judicial system. With regard to the new
downturn in the political climate in Spain
regarding cases seeking justice for those who
have suffered human rights abuses, Alan Cantos
says: “A massive principle and pillar of
democracy has almost fallen: the ‘universality’
of Universal Justice and the separation of powers.”

"Justice Without Borders"
The Viability of Universal Jurisdiction the
Spanish National Court´s Historic Lawsuits for Tibet.
by Karen Collier
the Centre for Peace and Comflict Studies,
University of Sydney, Australia.

SPAIN HAS LED THE WORLD in preparing a historic
legal analysis of the consequences of China’s
invasion of Tibet and oppression of its people.
The Spanish National Court, Audiencia Nacional
received two lawsuits prepared by Spanish lawyers
with Comité deApoyo alTibet and held evidence
admissible against members of the Politburo standing committee of theCCP.

This is the first judicial complaint ever filed
against Chinese leaders for crimes against
Tibetans. The lawsuits are an apt reply to the
impediment of exile and the political
restrictionswithinTibet under Chinese rule.
Limitations on the principle of universal
jurisdiction have emerged as a consequence of the
recent resolution by Spanish Congress restricting
cross-border cases to conditional jurisdiction,
following diplomatic pressure that now requires
amongst other things, a discernible link to
Spain, the prosecuting state. The modification of
the law, which threatens both lawsuits, will be
appealed.This article analyses the viability of
universal jurisdiction vis-à-vis the historic
lawsuits for Tibet and as a case study traces

its precedents, namely the landmark case
againstChilean dictator General Augusto Pinochet
and the Nuremberg trials. Emphasis

is placed on how legal action combined with
documentation projects such as The Tibet Oral
History Project and similar complementary social
movements have proven fundamental in fighting
impunity and seek a measure of justice for the
Tibetan people over 50 years on. The development
and application of the principle of Universal
Jurisdiction by the Spanish Courts has been,
perhaps the greatest contribution to the world in
the defence of human rights.Amassive principle
and "pillar of democracy" has almost fallen: the
"universality" ofUniversal Justice. The benefits
in Spanish lawyers pursuing such highly
politicised and audacious cases, now halted by
mounting foreign pressure, transcend the
obstacles confronting the Court, consistently
reinforcing the enlightened jurisprudential
aspiration of absolute universality over the most
heinous crimes against humanity.

Surely this is worth defending.

Several specific international treaties have
addressed the area of state jurisdiction in
criminal law, however no general treaty provides
a comprehensive solution of the jurisdiction of
states in criminal cases. Historically, the
application of the universality principle was
recognised by Hugo Grotius in the 17th Century in
relation to the crime of piracy on the high seas,
the perpetrators of which were deemed to be
hostis humani generis, "enemies of all mankind."
Today, international law continues to regard
piracy as universally cognizable. Beyond its
extension to slave trading in the 19th Century,
the principle developed in the wake of the
Nuremberg trials to the drafting of the Universal
Declaration of Human Rights, holding that
"criminal accountability need not end with the
home state." States practicing extraterritorial
and universal jurisdiction continue to cite the
Lotus principle of 1927 for support, established
by the Permanent Court of International Justice
(PCIJ) that: "States are free to adjudicate cases
of genocide committed abroad, as long as
third-party states cannot prove that
extraterritorial jurisdiction is prohibited by international law."

A Historic Legal Initiative

After meeting the Tibetan tragedy on a journey, a
young Spanish man from a village in the mountains
of Alicante, Dr. José Elías Esteve Moltó, studied
law, driven by a desire for justice and completed
his studies with a PhD thesis entitled; "The
Legal Status of Tibet in International Law." His
documented studies earned himaMagnaCumLaude,which
encouraged and obliged himto prepare a criminal
lawsuit against several Chinese leaders of
genocide against the Tibetan people. His
aspiration as a lawyer; that the Tibetan victims
are heard and members of Hu Jintao’s government
are tried, convicted and jailed for genocide. Dr.
Esteve (the main research lawyer and author of
both lawsuits) is a tireless pioneer of human
rights and shares the Buddhist philosophy.

Alán Cantos met with Tibetan Buddhism during a
mourning period in a small monastery in the South
of India, following the death of his mother.
Deeply comforted and inspired by The Tibetan Book
of Living and Dying, it was here, miles away from
Spain that he somehow, "read the map of Tibet’s
suffering and wisdom" in the faces of his hosts.
President of Madrid-based Committee to Support
Tibet (CAT) also the main plaintiff and
international coordinator of both lawsuits, Alán
has been a research scientist in oceanography for
over 15 years, educated at the University of
South Hampton, UK (physics) and the University
ofWashington,USA(physical oceanography). Later in
2001, Alán’s path met with that of José Elías,
during preparations for His Holiness the Dalai
Lama’s visit to Madrid. Previously, on a journey
to Dharamsala, Alán and José had missed each
other by days, where José Elías had been
conducting research for his thesis,
simultaneously, Alán had been collaborating with
esteemed Judge Baltasar Garzón on international
seminars on Tibet, including the 2005 Torture and
Terrorism Conference at El Escorial, Madrid. Back
in Spain, their fate was sealed in the first
telephone conversation. "It was obvious that
strong karmic forces had brought us together,"
Alán recalls. They didn’t know at the time the
extent and intensity of the journey that lay
ahead, but Alán says he has since been "grateful
to ‘the choreographers of destiny,’ for the
privilege of meeting this extraordinary person,
José Elías and helping him on this legal quest
for justice in Tibet." This fateful meeting of
two remarkable men and their bond with Tibet, has
inspired my thesis: "Justice without Borders."

Dr. Esteve, currently Professor of International
Law at the University of Valencia believes that
the failure of the international community to
take decisive measures on behalf of the Tibetan
people, "reflects a biased passivity." The
preference for non-judicial mechanisms to date,
has limited the Tibetans’ ability to
gainmeaningful reparations for the injustices
they have suffered, he says. The lawsuits upheld
by Spain’s Audiencia Nacional in 2005, based on
Article 125 of the Spanish Constitution under the
principle of universal jurisdiction: a doctrine
that allows courts to reach beyond national
borders in cases of torture, terrorism, genocide
and crimes against humanity are a culmination of
almost ten years of dedication and academic
research regarding human rights violations
against Tibetans. An 80-page complaint originally
filed by Comité de Apoyo al Tibet and
co-plaintiffs Fundación Casa del Tibet and
Thubten Wangchen, on behalf of the Tibetan
victims, charged the Chinese government with:
"genocide, crimes against humanity, torture and
state terrorism." In a predictable response China
labelled a "false lawsuit," demanding that the
Spanish government block the ground-breaking
investigation in the Spanish High Court,
nevertheless a second lawsuit was submitted by
Comité de Apoyo al Tibet against the Chinese
government just days before the Beijing Olympics
in 2008 and admitted by Judge Santiago Pedraz.
The further proceedings include investigation
into the harsh crackdown on dissent in Tibet,
commencing inMarch 2008 and theNangpa La shooting
of 2006when a 17-year old nun,KelsangNamtso,was
shot dead by Chinese border forces while
attempting to cross Tibet’s border into
exile––and the massive population transfer of
Chinese into Tibet. The Chinese ministry was
informed of rulings against twoChinese
governmentministers and five other officials,
including the former President of China, Jiang
Zemin and former PrimeMinister, Li Peng.What has
ensued has been an unprecedented legal battle.
The two cases seek to hold Chinese leaders
accountable for killings, torture and
imprisonment in Tibet. Perhaps themost sensitive
feature of the second lawsuit, is the targeting
of three members of the current regime against
whom there is evidence of having committed crimes
against humanity: a generalized and systematic
attack against the Tibetan civilian population:
"causing 203 deaths; more than one thousand
wounded and nearly six thousand people arrested
illegally or disappeared," since March 2008.

The two cases were not without historical
foundation. In July 1959, the International
Commission of Jurists reported in: "The Question
of Tibet and the Rule of Law" that: "[T]here is
prima facie evidence that the Chinese Communists
have by acts of genocide attempted to destroy
theTibetan nation and the Buddhist religion in
Tibet." These findings were reinforced in Dr.
Esteve’s PhD thesis and in his book: "Tibet: the
Frustration of a State, The Genocide of a
Nation." Despite three United Nations General
Assembly Resolutions (1959, 1960 and 1965) that
condemned Chinese abuses and granted theTibetan
people the right to self-determination in 1960,
there has been scarce international resolution to
"promote universal respect for, and observance
of, human rights and fundamental freedoms" for the Tibetan people.An essential complaint in the
cases is the genocide of Tibetan people and
culture. The Nuremberg Tribunals (1945 -1949)
established the principle that therewere such
things as "crimes against humanity, systematic
crimes against civilians that can occur inside a
country but that might be tried anywhere else."
In 1948, the United Nations adopted the
Convention on the Prevention and Punishment of
the Crime of Genocide to give meaning to this
principle. The Genocide Convention stipulates
that: "persons charged with genocide shall be
tried by a competent tribunal of the State in
territory inwhich the actwas committed or by such
international penal tribunal as may have
jurisdiction with respect to the Contracting
Parties." TheChinese invasion and oppression of
the Tibetan people is scarred with acts that fall
within its definition. Due to the modification of
the law in order to restrict the application of
Universal Jurisdiction, the Spanish tribunals may
not achieve either criteria now illustrating the
conflict between the principles ofUniversal
Jurisdiction and state sovereignty. "In launching
this lawsuit,we are seeking amoral and legal
answer to the acts committed upon the Tibetan
people by the authorities of the People’s
Republic of China," says Alán Cantos. "We have
great confidence in the Spanish legal system and
we hope that it will be able to apply the
universal lawsuch as it iswritten and not as
certain governments and dictators would wish it to be."

Duty to Prosecute

As part of the legal proceedings, Judge Santiago
Pedraz submitted a request to the Indian ministry
of justice on 19 January and again on 19 July,
2009, seeking permission to travel to India and
interview Tibetan exiled witnesses in Dharamsala,
been forthcoming to the judicial request. The
Indian government declined an earlier request on
the basis they do not recognize the principle of
"universal jurisdiction"or the Spanish cases,
despite signing the Mutual Legal Assistance Treaty with Spain in 2006.

The treaty included assistance in legal cases by
ensuring people could testify or cooperatewith
investigations.Additionally, there is a clause of
"compulsory law," ius cogens, dating back to the
Nuremberg trials, tacitly agreed by all countries
of the United Nations, binding governments to
respond and cooperate in the event of certain international crimes.

Spain has been reputed internationally for its
model of advanced democracy.Cases ofUniversal
Jurisdiction have been pursued in Spain
rigorously since Spanish Judge Baltasar Garzón,
served an international arrest warrant against
former Chilean President,General Augusto Pinochet
in 1998 for crimes against humanity during his
tenure, based on the UNConvention Against
Torture. Ever since, Spain has taken the lead in
prosecuting human rights violations beyond their own borders.

It has been noted that the Pinochet case,
exercising the principle of Universal
Jurisdiction was "a triumph of justice" --
"together with Nuremberg, the most important
international prosecution of the past 100 years.
Spain applied the principle of Universal
Jurisdiction to prosecute former Argentine
military officer Adolfo Scilingo, convicted and
sentenced to 1,300 years in prison for his role
in the notorious "death flights," where political
opponents were drugged and flown out and dropped
into the sea.Ricardo Miguel Cavallo, another
Argentine,was extradited from Mexico to Spain in
2003 to stand trial for terrorism and genocide
during Argentina's "dirty war." Scilingo’s case
provides an example of absolute universality
actually resulting in a prison sentence and
lasting proof that the principle is enforceable.
Judge Santiago Pedraz issued international arrest
warrants against eight senior Guatemalan
officials in 2006 and in a historic move, the
Guatemalan Courts responded by accepting the
international warrants and arrested two of the
eight defendants. These legal precedents have
kindled the hopes of victims of torture and
crimes against humanity sending a warning to
future violators that they will be held accountable for human rights abuses.

Several States have prosecuted authors of
international crimes on the basis of universal
jurisdiction including: Germany, Australia,
Belgium, Canada, Denmark, United States, France,
GreatBritain, Israel, theNetherlands and
Switzerland. Scholarly opinion has characterised
the case of Polyukhovich v Commonwealth of
Australia [1991] HCA 32; (1991) 172 CLR 501, by
the Australian High Court as a "manifestation" of
Universal Jurisdiction. In January 1990,
Ivanechko Polyukhovich, an Australian citizen and
resident of South Australia, was accused in
Australia, of: war crimes for the murder of 24
Jews including women and children and complicity
in the murder of more than 850 others, between
August 1941 andMay 1943, during the German
occupation of the Ukraine in World War II.
Polyukhovich was prosecuted pursuant to
theWarCrimes Act 1945 (Cth), providing that: "any
person who committed a war crime in Europe
between 1 September 1939 and 8 May 1945 was
guilty of an indictable offense." On 14 August
1991, Polyukhovich challenged the constitutional
validity of the War Crimes Act that:

"the Act purported to usurp the judicial power of theChapter III courts."

By amajority of 4 to 2 (Brennan J not deciding)
theHigh court of Australia held that the statute
did not invalidly usurp the judicial power of the
Commonwealth and the trial proceeded. Against the
Spirit of Universal Jurisdiction Since 1985,
Spanish Criminal Lawhad permitted the Court in
pursuing criminal cases outside of Spain,
"without limitations," setting aside the direct
link or "legitimizing" requirement. In September
2005, the Spanish Constitutional Court declared
in the case of human rights violations, the
principle of Universal Jurisdiction "prevails
over the existence of national interests."

However,withmounting political pressure in 2009,
the Spanish Congress passed a law on 19May that
limits the competence of Audiencia Nacional under
Article 23(4) of the Judicial Power Organisation
Act. This decision now warrants fierce debate
about the binding treaties that contradict this
new law (Geneva Convention, Rome Statute,
Genocide Convention, Vienna Convention,
Convention against Torture). The reform by the
Spanish government restricting the Courts to
"conditional" jurisdiction came into force
5November, 2009 after pressure fromcountries such
as the United States, Israel and China.
Prosecutors and judges of the cases affected will
soon be taking decisions and positions around
these restrictions. The parliament has sponsored
a controversial change in the law, which limits
the future scope of universal jurisdiction to
caseswhich: the victims are Spanish; the alleged
perpetrators are in Spain, or; some other clear
link to Spain can be demonstrated." In a response
to the resolution, numerous open letters and
manifestos were addressed to the President of
Spain, Mr. José Luis Rodriguez Zapatero. Upon
hearing the news of the shelved lawsuit, Dr. José
Elías Esteve expressed his deepest disappointment
and rejection over the ruling in a press release
with Comité de Apoyo al Tibet on 1March, 2010:

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.

Despite the newruling, jurists and international
human rights organisations are fervently
challenging the restrictive interpretations of
Universal Jurisdiction. Manuel Olle Sese,
President of the Spanish Human Rights Association
underscores the principle as "an obligatory
instrument," in persecuting the most serious
crimes that destroy human dignity. Currently
eleven international cases are being investigated
by Spanish judges under the principle of
Universal Jurisdiction, holding that some crimes
are so grave, they can be tried anywhere
regardless of where the offences were committed.
The Audiencia Nacional has heard complaints of
human rights abuses as far afield as Guatemala,
Rwanda, Chile, Gaza, Guantanamo Bay and Western
Sahara to name but a few. At the time of writing
this article, the original lawsuit for genocide
and various other crimes in relation to Tibet,
admitted in 2005 is still open while the judge
considers the viability of the case. The second
lawsuit admitted in 2008 will be appealed.

Peace with Justice

International Courts were established to deal
with allegations of human rights abuses in
Rwanda, the formerYugoslavia, Sierra Leone and by
the International Criminal Court (ICC), under the
auspices of the UnitedNations in 2002. Tibet’s
case falls outside the competence of the ICC
preventing it from investigating crimes prior to
2002. Only when a case is assigned by the ICC
signatory nations, orwhen theUNSecurityCouncil
hands down amandate can a case be pursued.
SinceChina does not recognize the principle of
Universal Jurisdiction, is not a signatory to the
ICC’s Rome Statute and as a permanent UN Security
Council member able to veto any resolutions,
including referrals to the ICC––China, therefore
escapes the competence of this Court.
Regrettably, China and the USA’s lack of
cooperation with the ICC will remain a crippling
factor in the Courts’ competence in establishing accountability for war crimes.

The International Criminal Tribunal for the
former Yugoslavia (ICTY) is worth noting as a
case study accentuating the symbiotic
relationship between peace and justice. The ICTY
was established by Resolution 827 of
theUNSecurity Council in terms of itsChapterVII
powers, to help restore peace and security.

The establishment of the ICTY was unusual in many
respects, most significantly, its simultaneous
establishment as amechanism for the "restoration
of peace, "while conflict continued to rage in
the former Yugoslavia. Critics argued that such a
step: "was counterproductive to initiatives aimed
at promoting a negotiated settlement." This
assumption "fails to identify the essential
relationship between peace and justice,"
according to Richard Goldstone, former chief
prosecutor of the United Nations ICTY and
ICTR(Rwanda).The relationship between peace and
justice is so profound, that peace negotiated in
the absence of the pursuit of justice––"will
beworth littlemore than the paper an ensuing
peace agreement is written on," Goldstone argues.
Comparably, the dualistic critique that the
lawsuits for Tibet may impair fragile peace
negotiations (Sino-Tibet dialogues) is unfounded.
The dialogues have resumed parallel to the
lawsuits, compatible with theMiddle-WayApproach
in redressing the basic human rights of six
million Tibetans––while maintaining the
commitment to resolving conflict through strategic non-violentmethods.

Transitional Justice -- A New Landscape

Soon after his flight into exile, the Dalai Lama
devised a transitional government in exile
promulgating a Constitution based on "people’s
democracy," being officially adopted in 1963.
Such a move has enabled the exiled community to
maintain a strong sense of unity built on the
foundations of democracy, with a diaspora of some
150,000 stateless refugees governed by the
Tibetan Government in Exile (TGIE) committed to
the hope of returning to Tibet. Although
traditionally, most mechanisms of transitional
justice are applied following a negotiated peace
agreement, I argue that further to the
establishment of a thriving democracy in exile,
the Spanish lawsuits have marked the beginning of
transitional justice for Tibet as an exception to
this norm, in light of the protracted nature of
the conflict and sheer complexity of political
dynamics only further delaying redress for the
Tibetan victims and their families. According to
Kofi Annan, in the United Nations Secretary
General’s Report of 2004, transitional justice comprises:

[T]he full range of processes and mechanisms
associated with a society’s attempts to come to
terms with a legacy of large-scale past abuses,
in order to ensure accountability, serve justice
and achieve reconciliation. These may include
both judicial and non-judicial mechanisms, with
differing levels of international involvement (or
none at all) and individual prosecutions,
reparations, truth seeking, institutional reform,
vetting and dismissals, or a
combination  thereof. Key to all transitional
justice mechanisms is the exposure of the truth
and the acknowledgement of suffering of the victims.

Key to understanding what informs transitional
justice mechanisms adopted in conflict arenas are
these "specific" political power dynamics at
play. When, where and how they can be applied is
dependent on these dynamics and the stages of
conflict to a certain degree. Since Tibet is
currently occupied by a foreign power, these
mechanisms and treaties have little practical
relevance to the Tibetan people without
international enforcement and political will to
back them up. Evidently, the precedents set by
the Spanish Courts have demonstrated that the
legal infrastructure is willing to encourage such
initiatives, but the lack of political will
combined with fear and ignorance are the biggest
impediments to the application of the legal
principles and the numerous legal avenues
available. In August 2007, Judge Baltasar Garzón
maintained at the Edinburgh Festival of
Spirituality and Peace, that "there is nothing to
stop states implementing the legislation required
to exercise universal jurisdiction."

Within a "new landscape" of transitional
justice,NaomiRoht-Arriaza, Professor of Law at
the University of California, describes
transitional justice as, "involving anything that
a society devises to deal with a legacy of
conflict and/or widespread human rights
violations, which aims directly at confronting
and dealing with past violations of human rights
and humanitarian law." Alex Boraine (former
deputy Chairperson, South African Truth &
Reconciliation Commission) in Transitional
Justice and Human Security, broadens the vision
of justice: which seeks to confront perpetrators;
address the needs of victims and assists in the
start of a process of reconciliation and
transformation." In light of such theories, Emile
Hunter of the international press office for CAT
believes the lawsuits for Tibet will open up the
truth of what has happened to Tibetans and
possibly lead to better relations and
understanding between ordinary Chinese and
Tibetan people. The emphasis on transformation of
relationships has become a key approach of His
Holiness the Dalai Lama and the TGIE in garnering
worldwide moral support and participation in the
Tibetan movement, continually fortifying the
non-violent struggle. However effective this
transformative approach to peace-building has
been, to consolidate peace with justice, the
complementarity of judicial mechanisms will
strengthen the Tibetans’ ability to gain
meaningful reparations, as argued by Dr. Esteve.
The implementation and pursuit of justice plays
an important role of providing detailed and
accurate records of historical events. In
Barcelona, April 2005,Dr. Esteve and Alán Cantos
came to one of several conclusions following a
Conference; “Impunity as an Obstacle in the
Process of Building Democracy,” that it is
necessary to combine legal action with social
movements, which has proven fundamental in the
fight against impunity, (a root cause of conflict
and structural impediment to long-term peace).
Furthermore, their report concluded that:

Impunity understood as the exemption of
responsibility for criminal acts committed from a
position of power, has conditioned the processes
of institutionalising democracy in some countries
and of consolidating it in others, because only
truth, justice and reparation are the basis on
which genuine democracy can be built.

The Untold Truth

The impact of social movements and grassroots
community participation should not be
underemphasized. Patricia Lundy highlights this
observation in: "Transitional Justice from
Below," citing the Ardoyne Commemoration Project
-- "Ardoyne: the Untold Truth." Lundy argues that
these participatory approaches to development,
post-conflict transition and justicemaking, "are
clearly significant and should inform policy
making and practice." Lundy illustrates these
potential values in her analysis of the
initiative developed in Northern Ireland,
described as: "the foundation for a
community-driven truth-recovery process,"
designed to deal with the legacy of past conflict
and violence inNorthern Ireland.Asimilar
initiativewas undertaken in Sydney, Australia
between 2006 - 2007 in consultation with the
Tibetan community ofNSW,with 18 interviews
transcribed and published in 2009 in a book
entitled: "Eclipse of the Spirit," A personal and
dialogical (social) narrative (or truth) of
Tibetan refugees recalling torture, denial of
their basic human rights, separation fromtheir
families and forced into exile. The initiative
inspired a social dialogue that offered the
political prisoners a platform to tell their
stories, they regarded as part of––but not a
substitute for seeking justice. The project,
complementary to the judicial mechanism applied
in Spain, engaged the wider community and local
government in recognition of the ongoing
suffering of the Tibetan people and has begun to
address the gap between knowledge and
acknowledgement of the Tibet issue. Similarly,
"TheTibetOralHistory Project," (TOHP) based in
India and theUS, is a documentation initiative
that mirrors the efforts of Cambodia’s Victim
Participation Project at the Documentation Centre
of Cambodia, “DC Cam,” a comprehensive database
documenting the atrocities of Pol Pot’s Khmer
Rouge regime. The aspiration of the Tibet
OralHistory Project is to document the oral
histories of Tibetan elders living in exile for
the purposes of education and preservation of the
culture and history of Tibet. Now in their 80’s
and 90’s these elders are the last generation to
have lived in a free Tibet. Political and
physical barriers currently restrict the pursuit
of a more comprehensive data gathering project,
as in Cambodia, although the testimonies of
Tibetan witnesses in Spain have transcended these barriers.

Lodi Gyari, Special Envoy of The Dalai Lama has
urged Tibetans inside and outside Tibet to record
their experiences of suffering over the past 50
years. "It is vitally important, especially as a
testament to those Tibetans no longer here, that
we record our personal experiences of
suffering.We should do this not to fuel
resentments but to help the Chinese people
understand our true history and to knowthatwe are
justified in our hopes for a future Tibet," Gyari
accentuates.The Spanish legal proceedings have
placed the victims central to the judicial
process and its outreach and cultural sensitivity
have shown deep respect for the cultural context
of Tibetan Buddhism and empowerment. A measure of
deep catharsis wasexperienced and articulated by
the witnesses who gave their testimonies
including co-plaintiff and Spanish citizen,
Thubten Wangchen. "his offers eachTibetan an
opportunity to gain legal recognition for their
suffering," he says. Another witness also
reflected, "It means so much for me to be able to
tell the judge about my brother. The Chinese want to silence us as Tibetans.

They don’t want anyone to know about the death of
my brother and of other Tibetans in prison, and
they don’t want to be called to account for their
actions. So this court case is important because
it is a step towards seeking accountability.
Nothing can bring my brother back. But this is
the one thing I can do for him to speak about his
life, to honour him." Since the testimonies in
Spain were given, including those of prominent
activists, Tenzin Tsundue and political
prisoners, Palden Gyatso, Tagna Jigme
Zangpo,RinzinChoenyi and theDrapchi nuns––Tibetan
victims and their families have expressed their
deep concern with the threat of being abandoned
by Spanish justicemidway of the "first glimmerings" of legal protection.

Conclusion: Separation of Powers

The pragmatism sparked by the global financial
crisis and political powers now reaching over to
interfere with justice and cross without shame
the "sacred gap" of separation between the
judicial and executive powers that should be
preserved in healthy democracies, has given way
to an era of realism. Although, as Newsweek’s
March issue reports, devoting a six page feature
to: TheDownfall ofHumanRights, "the possibility
remains that the old idealism will return, as the
yearning for freedom remains." Realpolitik within
international relations, weakens the potential to
effectively apply the principle of Universal
Jurisdiction until an international treaty is
established with unequivocal cooperation and
enforcement from our governments. Only then, will
the enlightened jurisprudential aspiration of
absolute universalit be realized––shifting from a
culture of impunity to a culture of peace,
transcending national boundaries. Naomi
Roht-Arriaza emphasizes this in; "Institutions of
International Justice," illuminating that: "only
through combined pressure of nongovernmental
organizations and the longmemories of survivors
that have goaded states into creating
thosemechanisms that exist today, it will be
increased pressure from below that will make
themeffective." "With orwithout convictions,
AudienciaNacional has commendably shed light on
dark acts committed by closed regimes," reported:
"Spain Reins in Crusading Judges," June 2009. By
bringing Tibet’s Nangpa La pass incident back
into the spotlight, having featured in the
preliminary investigations of an open court
case––the victims have won at the very least, "a battle against silence."

The issue of competency in the judge’s decision
to close or not close a case under the new law is
going to be vital. In the words of former
Nuremberg prosecutor, Benjamin Ferencz:

"There can be no peace without justice, no
justice without law and no meaningful law without
a Court to decide what is just and lawful under
any given circumstance.” These institutions, now
under threat from interference in the wake of
events effecting world powers, amended with
dubious political purpose that will generate
impunity and without respect of the binding
international treaties that contradict this new
law, leave the Tibetans with their only weapon of
truth to fight over half a century of injustices.
At the heart of this analysis begs the question:
where on this earth are the Tibetan people to
seek justice if not the Spanish Courts? The
consolidation of customary international law in
the future, and the limits of Universal
Jurisdiction will be truly tested by the
unrelenting commitment of Spanish lawyers and
judges in tackling impunity -- by the
unparalleled courage of the Tibetans despite
political hazards to pursue this case -- and by
the conscience of humanity to defend it.
Unarguably, unique circumstances are required for
these cases to prevail. The "Pinochet effect,"
will only galvanize China into resolving the
Tibet issue as in her national interest when
there is an end to the endorsement of impunity by
global powers. Only then, will the Tibetan people
be graced with poetic justice in their lifetimes.

The Spanish lawsuits have made astounding
progress, considering the odds against them. In
supporting Alán and José Elías and their
perseverance with the historic Tibet case, we
would be wise to recall the insights of Gandhi,
who valued the process above the outcome in the
face of epic human challenges, illuminating that
means and ends are one in the same and
truth-seeking, (satyagraha) above all, is
fundamental to process. Also an example of the
Mahayana Buddhist principles, combining wisdom
and compassion––Alán Cantos and Dr. José Elías
Esteve have carried these principles to great
heights, while testing the limits of the Spanish
judicial system and of the human spirit.

"A massive principle and pillar of democracy has
almost fallen: the ‘universality’ of Universal
Justice and the separation of powers," says Alán
Cantos. "We keep fighting because ‘impossible
fights,’ (as with utopias) generate impossible strengths."

Dedicated to Spanish lawyers and judges whose
ethics and integrity are unparalleled in their
unrelenting pursuit of justice.May their efforts
unshackle hidden injustices beyond international
borders and uphold human dignity. Defending the
principle of universal jurisdiction through
international law strives for a culture of
accountability -- fostering the conditions for a
world towards peace with justice. May the voices
of the Tibetan people triumph over silence.

Sincere thanks to Mr. Alán Cantos and Dr. José
Elías Esteve Molto Written August 2009 in
‘Transitional Justice & Peacebuilding’, and revised in March 2010.

Original article in English:

Spanish translation:

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