Senior lawyers and international law experts have commented on China’s reaction to the recent Spanish criminal court rulings against China’s former Party boss Hu Jintao and five other Chinese leaders. The lawyers and professors were speaking at a conference at the University of Valencia, Spain, following the order on November 18 for arrest warrants to be issued against five Chinese leaders, including former President and Party Secretary Jiang Zemin, for their policies in Tibet. This follows the news on October 9 of Hu Jintao’s indictment for genocide in Tibet. The Confucian Institute at the University of Valencia sought to pressure the academic authorities by hosting a two-day event promoting officially-sanctioned Chinese culture on the same days as the conference, while the visa of one of the Tibetan witnesses due to speak at the event was denied by the Spanish embassy in India.

Spanish political cartoon

Cartoon, Taipei Times

This report outlines the new developments in the ground-breaking Tibet lawsuits in Spain (ICT report, Spanish criminal court orders arrest warrants against Chinese leaders following Hu Jintao indictment for Tibet policies) as follows:

  • One of the key Tibetan witnesses in the case, monk Palden Gyatso, who served 33 years in prison and labour camps, was denied a visa by the Spanish embassy in India to travel to the conference in Valencia about universal jurisdiction on November 29, although he has travelled to Spain before. The reason for the denial of his visa was not clear but is being challenged by the University of Valencia hosts and the legal team behind the lawsuits.
  • The Confucian Institute at the University of Valencia hosted an official exhibition promoting Chinese culture on the same two days as the conference about the Tibet lawsuits. Defending the need to expose crimes against humanity in Tibet through the lawsuits, leading Spanish professor Javier de Lucas wrote in Spanish newspaper El País that this highlighted the dangers of a government vehicle for propaganda being hosted by an academic institution (El País, Dos Chinas en Valencia)
  • The Spanish legal team has submitted 48 questions for former Party Secretary and President Hu Jintao about his policies in Tibet, to be forwarded to him by the court.
  • Chinese official Zhu Weiqun referred to the rulings by the Spanish judges as “malicious persecution” that was probably “plotted by the Dalai clique.” ( Prof. Dr. Manuel Ollé Sesé, a specialist in Criminal Law and lawyer in the universal jurisdiction cases for Tibet, Argentina and Guatemala, said: “The surprise would have been any other reaction. We must remind China of two things: one, that a long time ago the international community agreed to establish that the persecution of these crimes was an obligation of all the States and that they cannot be left unpunished. Second, it is not a legal case of Spain against China but a legal procedure of a court of law against particular Chinese defendants accused of the gravest international crimes.”
  • Extracts from the court writs ordering arrest warrants and the indictment of Hu Jintao are published below in English, translated from Spanish.

Dr. José Elías Esteve Molto, main research lawyer and writer of both lawsuits, told ICT: “We hope that the indictment of Hu Jintao and the warrants of arrest of the other five defendants will serve to help the international community distinguish the red lines that should never have been crossed in international politics with respect to Tibet and China. Above the complicity with economic and geopolitical interests there will always be the truth, justice and human rights. We trust that this fight against impunity will benefit the Tibetan people and all the Chinese citizens persecuted by a government they did not choose.”

The order for arrest warrants was made against five senior Chinese leaders for their involvement in policies in Tibet as follows: Jiang Zemin, former President and Party Secretary; Li Peng, Prime Minister during the repression in Tibet in the late 1980s and early 1990s (and the crackdown in Tiananmen); Qiao Shi, former head of Chinese security and responsible for the People’s Armed Police during the martial law period in Tibet in the late 1980s; Chen Kuiyuan, Party secretary in the Tibet Autonomous Region from 1992 to 2000 (who was known for his hardline position against Tibetan religion and culture), and Peng Peiyun, minister of family planning in the 1990s.

The court order issued on November 18, 2013 in Madrid states: “Having examined the proceedings consisting of the testimony sent by the investigative court, this court establishes that during the proceedings of the initial lawsuit a series of investigations have been carried out within the framework of the present proceedings from the moment the lawsuit was accepted in 2006, in testimonials, documents submitted and described and the abovementioned expert report [an ICT report on the chain of command in China], from which it can be deduced rationally and prima facie that there is evidence of the abovementioned persons having participated in the acts described in the lawsuit, given the political or military responsibility held by each one of them during the extended period in which said acts were committed, which makes it necessary to issue the international arrest warrants against the accused, and also to sustain the appeal and revoke the impugned writ.” (Extract from Court Order No 270/13, translated from the original Spanish by Comite de Apoyo al Tibet, the Spanish Tibet Committee, one of the three plaintiffs.)

The ruling, which goes further than Spanish experts expected and sends a strong signal to the Chinese leadership, mean that none of the leaders named, and others too, are likely to take the risk of travelling outside the PRC as they could be arrested for questioning on the crimes they are accused of. All the leaders face the possibility of bank accounts overseas being preventively frozen. In the earlier writ issued on October 9, the judges recognized that this indictment of Hu Jintao comes at the judicial moment “when his diplomatic immunity expires”. (ICT report, China’s former leader Hu Jintao indicted for policies in Tibet by Spanish court).

A second writ issued in Madrid on November 18, 2013, referred to reports submitted by the Spanish legal team on Hu Jintao’s responsibility for policies in Tibet. The document stated: “[Hu Jintao’s] presumed participation is supported by reports and decisions that constitute expert findings and describe the way in which decisions were adopted regarding the campaigns to be carried out and the existing chain of command to that effect. With regard to the different periods when repression was carried out in Tibet, the reports conclude that the responsibility and decision for Chinese policies in Tibet lay with China’s president, not only after he took power in 2003 until recently, during which time he was the highest ranking person in both the Party and the government, but also during the earlier repression in 1988 and later, because at that time he was Party leader in Tibet.”

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.

The court writ on November 18 noted that with regard to the investigation being contingent on the Chinese authorities, “No court ruling makes any mention of the Chinese authorities having begun any type of investigation into the facts that are the object of the initial lawsuit. As a result, and in agreement with the abovementioned points, it is incumbent on this court to sustain the appeal lodged and to revoke the resolution under appeal.” (Writ No 246/13).

At the conference on universal jurisdiction in Valencia on November 28-9, ICT gave a presentation on the significance of the Tibet lawsuits and the current situation in Tibet. Organisers of the conference Jose Elias Esteve, a lawyer and professor at the Institute of Human Rights at the University of Valencia and Professor Consuelo Ramón Chornet were disappointed that Tibetan witness Palden Gyatso, who lives in exile in India, was denied a visa to travel to Spain. One of the reasons given by the Spanish embassy in India was because he required a specific type of travel insurance not readily available in India due to his health condition. However, Palden Gyatso was told in person at the embassy in Delhi that they did not know anything about his application, despite Valencia University issuing formal invitations that had been acknowledged earlier.

Alan Cantos with witnesses

Jose Elias Esteve and Alan Cantos with witnesses Tagna Jigme Sangpo, who served 37 years in Drapchi (Tibet Autonomous Region Prison), Lhasa, and Palden Gyatso, who spent 33 years in prisons and labor camps. (Photo: Angel Lopez-Soto for CAT)

filing the complaint

(From left to right) José Elías Esteve, Alan Cantos (CAT), Thubten Wangchen, Palden Gyatso, Tagna Jigme Sangpo, Tibet’s longest-serving political prisoner, and Kalsang Phuntsok, then president of the Tibetan Youth Congress, filing the complaint that investigates the National Court against seven senior officials of the Chinese government, June 28, 2005. (Photo: Ángel López-Soto for CAT)

After hearing about the latest rulings in the lawsuits, Tibetan monk Palden Gyatso, who is 80, had said that he could “die happy”. 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, who have pioneered the two Tibet lawsuits, said: “With these verdicts 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.”

In an article published in El Pais on November 28, Professor Javier de Lucas, Professor of Philosophy of Law at the University, noted that in contrast to the Chinese exhibition run by the Confucian Institute, the Institute of Human Rights did not receive any assistance from the University of Valencia in the conference about universal jurisdiction cases. He wrote: “It appears that this critical view of the Chinese government and what many of us consider genocide in Tibet, is ill-timed. […] Nevertheless, despite these absences and difficulties, the conference took place. Because there are many people – more than our prudent and realistic institutional authorities believe – who do not want the University to cease being a place of critical knowledge and open debate and one that should never be replaced by propaganda. Because there are many people – myself among them – who believe that crimes against humanity (in Tibet or the Central African Republic or anywhere else) do not expire and should not be forgotten. Because this is the way in which relations with the unique Chinese people will be based on better mutual understanding.” (Translation from Spanish kindly provided by the Spanish Tibet Committee CAT).

An internal Party document issued earlier this year gave an insight into the ideological underpinnings of the current crackdown in China against human rights lawyers, media outlets, scholars and others in civil society. In the communiqué, that came to be known as ‘Document 9’, ‘universal values’ were condemned as a one of seven political ‘perils’ to be guarded against. The list also included constitutionalism, civil society, ‘nihilistic’ views of history, and the promotion of ‘the West’s view of media.’ (Translation of the document and analysis at: ChinaFile, Document 9: A ChinaFile Translation).

Professor Javier de Lucas wrote in his oped that while: “Mutual understanding is a necessary condition for positive relations on the path to cooperation and development [this is] on condition that knowledge is not replaced by propaganda, which is, however, hard to avoid. And that is perhaps a thorn in the side of the Instituto Confucio and even that of the university as a whole. Because there are other aspects of China (as there are of Spain) and there is another China, that of its government’s regime, which should be understood even though the Instituto Confucio is not very interested in doing so. The problems suffered by the Uyghurs or by religious minorities such as Falun Gong, or the situation in Tibet are just a few examples; problems that, obviously, the Chinese government does not want anyone to discuss. The official doctrine calls them ‘internal affairs’; a classic allegation that clashes with the principle of universal jurisdiction of human rights. […]”

Prof. Dr. Manuel Ollé Sesé, criminal lawyer in the Tibet lawsuits and lecturer in Criminal Law at Universidad Complutense, Madrid, told ICT in Valencia: “The importance [of these new rulings] is evident. The validity of the principle of universal justice is reaffirmed and as a consequence the court is giving a green light to investigate and prosecute the crimes against the Tibetan people, complying with the obligations of international law. The message is a clear fight against the unbearable impunity whoever the perpetrators may be, prosecution of the aberrant crimes of genocide and defense of the victims.”

Alan Cantos, Director of Comite de Apoyo al Tibet, main plaintiffs in the cases, said: “These rulings are a step in the right direction for the Spanish judicial system and our democracy, choosing to side with the law and basic principles rather than economic and political submission as tends to be the case when seeking accountability of the powerful states of the UN Security Council.”

For more analysis please visit the ICT blog, Initial reflection on the Spanish National Court’s arrest warrant for Chinese Leaders.