New Delhi
16 February 2008
A Spanish lawyer fighting an unprecedented battle against the
Chinese authorities for genocide in Tibet is touring India to encourage Tibetans living
here to testify before a Madrid court.
The lawyer, Dr Jose Elias Esteve, decided to make the journey after India refused to set
up a Rogatory Commission that would have allowed the Tibetans to testify here. The
Interpol had informed India of the Spanish court's order to collaborate in the questioning,
through a Rogatory Commission, of victims and witnesses.
India, which is home to over one lakh Tibetan refugees, is the only country with a sizable
Tibetan population not to cooperate with the Spanish investigation. The United Kingdom,
Sweden, Canada, Belgium and the Netherlands have agreed to assist in the case.
"The reply from the Indian Government was devastating, as it concludes by saying that
India does not recognise the principle of universal jurisdiction. It argued that the
apparent crimes had not been committed on Spanish soil, so Spanish courts were not
competent to try them," Dr Jose told this newspaper.
"The reply violates the most basic rules of international law and is utterly inappropriate
for a democratic country like India," he added.
Dr Jose, who is visiting India with his associate Alan Cantos, Director of Tibet Support
Group (Comite de Apoyo al Tibet in Spanish), said that the Spanish court has held that it
is competent to judge cases of crimes against the Tibetans. (The case was admitted on
January 10, 2006.) There is also a legal precedent of a Spanish court pronouncing the
late Chilean dictator Augusto Pinochet guilty, they said.
According to Dr Jose and Mr Alan, their lawsuit is the first case seeking to define the
Chinese State's treatment of the Tibetan people, where it is estimated that over one
million Tibetans were murdered or died at the hands of Chinese officials, and over 90 per
cent of the religious and cultural institutions destroyed.
Dr Jose and Mr Alan are now trying to arrange plane tickets for the Tibetans living in
India, so that they could testify in the Madrid court. They hoped that the elected
representatives of the Tibetan Government-in-Exile or the Dalai Lama could consider
giving their testimonies.
"From a legal point of view, it would be very good for the case and the victims if the
representatives of the Government-in-Exile or the Dalai Lama could come to Spain. We
have asked the judge to invite their testimonies and to also consider interviewing some
of them," Dr Jose said in response to a question.
So far, one Tibetan victim of genocide has testified in person before the judge. Over 10
victims have deposed before the Rogatory Commissions set up outside Spain.
According to Dr Jose, the transfer of civilian population to the occupied territory of Tibet
is a flagrant violation of Article 49 of the Fourth Geneva Convention. He said that the
1951 agreement between the Chinese and the Tibetans was signed under coercion and
is legally not in force. "Therefore Tibet is occupied territory," he added. China has sought
to justify the influx of Han Chinese into Tibet as a necessary step to promote economic
development.
If Dr Jose and Mr Alan are successful, Chinese leaders like Li Peng, Jiang Zemin and
five others could be held guilty for crimes of genocide, crimes against humanity, torture
and terrorism committed upon the Tibetan people. Then if those Chinese leaders travel
abroad to any country with which Spain has an extradition treaty, they could be detained,
like it happened to General Pinochet.
Tenzin Tsundue (33), who was born in India, advocated non-violent, active resistance
popularised by Mahatma Gandhi. Tenzin was jailed in 1997 by the Chinese authorities
for daring to visit his homeland. He wanted more Tibetans to stand up and speak out
against the intimidation and humiliation by China.
Dr Jose could not agree more. He hoped more Tibetans like Tenzin would join what he
calls "challenge against impunity." Mr Alan, in turn, felt that Satyagraha is the way
forward as it contains the main elements defined and put in practice by the Mahatma.
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