China’s former leader Hu Jintao has been indicted for genocide in Tibet by the Spanish National Court (Audiencia Nacional) in a writ issued on October 9, 2013. This development, made just before China undergoes its Universal Periodic Review (UPR) at the UN Human Rights Council in Geneva on October 22, could lead to moves to seek Hu Jintao’s arrest if he were to travel out of China for questioning on the crimes he is accused of, or the possibility of bank accounts overseas being preventively frozen. The judges recognized that this indictment of Hu Jintao comes at the judicial moment “when his diplomatic immunity expires”.

The court ruling is a ground-breaking development in a lawsuit in Spain upholding the principle of “universal jurisdiction” — a doctrine that allows courts to reach beyond national borders in cases of torture, terror and other serious international crimes perpetrated by individuals, governments or military authorities. After an appeal on July 29 following the judge’s earlier rejection of a request to extend the lawsuit to include former Party Secretary and President Hu Jintao, the appeals court now accepts the argument put forward by the Spanish NGO Comite de Apoyo al Tibet (CAT) for Hu Jintao’s indictment. This includes the period he was Party Secretary of the Tibet Autonomous Region in which he presided over the imposition of martial law in 1989, and also his responsibility for policy on Tibet as President and Party Secretary of China after 2003 “due to being the highest ranking person in both the Party and the Government”.

José Elías Esteve Moltó, main research lawyer and author of both cases, and Alan Cantos from Comite de Apoyo Al Tibet (CAT) in Madrid, Spain’s Tibet Support Committee, which has pioneered the two Tibet lawsuits, said: “With this verdict we have kept our promise to the Tibetan victims and their families that we would not rest until one of the persons living who was most responsible for the brutal repression in Tibet was brought before the law. This now means that Hu Jintao could be arrested not only in Spain, but in any country in Europe by European Arrest Warrant or the rest of the world which has an extradition treaty with Spain. If he has foreign bank accounts they could be blocked by court order until he comes in front of the judge or answers questions about his responsibility in the crimes he is accused of.” Alan Cantos and Jose Elias Esteve also noted that the judge described Tibet as a ‘nation’ and ‘country’.

A report by the International Campaign for Tibet, ratified to the judge in Madrid in December 2012, outlined details of the chain of command for specific policies in Tibet — from the imposition of martial law leading to torture and a climate of terror, to systematic patriotic education, compelling Tibetans to denounce their exiled leader the Dalai Lama. ICT described how the functions of the Communist Party override those of the Chinese state at all levels, and named specific leaders including Hu Jintao, formerly the top Party boss in Tibet.

Bhuchung Tsering, Interim President of the International Campaign for Tibet, said: “This verdict sends a strong signal to the Chinese leadership and is a significant development in seeking accountability at the highest levels in China for the Communist Party leadership’s failed policies in Tibet. It is an important step on the road to pursuing universal justice as the method of obtaining criminal responsibility of the leadership of the Chinese Communist Party.”

The Chinese government has sought to quash the cases through direct intervention with the Spanish government and judiciary. Ignoring the separation between state and judicial system that is fundamental to a healthy democracy, the Chinese authorities also threatened to arrest and deport one of Spain’s most senior judges, who had accepted one of the lawsuits and proposed talking to the defendants in China to hear their arguments during the preliminary proceedings of the case. (ICT report, ICT testifies in Spain’s National Court on Chinese leadership policies in Tibet). In this appeal the prosecution also requested that the case be closed, alleging the competence of the Chinese courts, but the judges of the Audiencia Nacional (the Criminal Court of Spain’s National Court) rejected this argument, saying there was no record “of Chinese authorities having begun any type of investigation into the facts that are the object of the lawsuit”.

According to a statement issued on October 10 by CAT quoting the court writ, the judges declared their decision is supported by “international evidence of the repression carried out by Chinese leaders against the Tibetan nation and its population […] the Chinese authorities decided to carry out a series of coordinated actions aimed at eliminating the specific characteristics and existence of the country of Tibet by imposing martial law, carrying out forced transfers and mass sterilisation campaigns, torturing dissidents and forcibly transferring contingents of Chinese in order to gradually dominate and eliminate the indigenous population in the country of Tibet.”

In both lawsuits the Chinese leaders named answered the judges through the Chinese embassy, saying they would not cooperate in the lawsuits they described as ‘false’ and adding that there would be ‘consequences’ if the Spanish government did not withdraw the cases. These consequences materialized in a change of the law in Spain, limiting the application of universal jurisdiction, according to Alan Cantos of CAT. (CAT press release, October 10, ICT report, China threatens Spain over Tibet lawsuits; judge announces extension of cases to cover Nangpa shooting).

Despite the public prosecution’s attempt to close the latest case on Hu Jintao, alleging there was no national connection, the judges of the appeals court rejected this argument in the October 9 indictment, declaring that the national connection is clear in view of one of the Tibetan victims and co-plaintiffs having Spanish nationality (Thubten Wangchen, director of the Fundación Casa del Tíbet in Barcelona), while reminding the prosecution of this precedent in order to prevent further attempts to use this argument.

On October 22, China will undergo its Universal Periodic Review (UPR) at the UN Human Rights Council in Geneva. In this process, China will be ‘peer reviewed’ by other governments on whether it has met stated benchmarks China accepted in order to further human rights. (ICT report, Investigate shooting of unarmed Tibetans, ICT urges on eve of China’s rights review at UN).