Global Policy Forum

By Lisa Abend & Geoff Pingree

When Thubten Wangchen was 4 years old, his mother died in a Chinese work camp. She was pregnant at the time, and according to Mr. Wangchen, the Chinese were rounding up pregnant women and working them to death. "That was their way of limiting the Tibetan population," says Wangchen, a Tibetan refugee who has lived in Spain for 24 years. Since the Chinese invaded Tibet in 1950, hundreds of thousands of Tibetans have been killed, arbitrarily imprisoned, or forced to flee their country. But when the victims of what some call genocide finally get their day in court, it probably won't be in China. Instead, Spain - which is conducting a judicial investigation on the issue - is likely to hold the first trial.

Although Spain had no citizens affected by the suspected crimes, its National Court decided in January to investigate whether China did indeed commit genocide. The decision raises questions about whether Spain's policy of universal jurisdiction is enforceable, as well how it will impact trade.

Ever since National Court judge Baltasar Garzón ordered the arrest in 1998 of former Chilean dictator Augusto Pinochet for crimes against humanity, Spain has taken the lead among individual countries prosecuting human rights violations that occurred outside their own borders.

At first, the court confined itself to cases like General Pinochet's, in which Spaniards were among the victims. But last year, the Spanish Constitutional Court ruled that the National Court could investigate charges brought by Nobel Peace Prize winner Rigoberta Menchu Túm for killings, torture, and disappearances that occurred during Guatemala's civil war. With that decision, Spain became one of the few countries to exercise the legal principle of universal jurisdiction, which gives countries the right to try individuals of any nationality for crimes committed outside that country's border.

One of the most notable examples of this in recent history is a Belgian jury's conviction of four Rwandans on genocide claims. Belgium has since restricted the scope of its universal jurisdiction law. "Most countries base their legal system on the principle of territorial jurisdiction," explains Ruben Carnerero, professor of international law at Madrid's Complutense University. "But there is growing support for the idea that in some cases of extreme human rights violations, this principle has exceptions."

The Madrid-based Committee to Support Tibet (CAT), which brought the Tibet genocide suit against former Chinese President Jiang Zemin and six other former leaders, sees Tibet as one of those exceptions. In its 80-page complaint, it charged the Chinese with the murder or displacement of 1 million Tibetans since China's 1950 invasion of the autonomous province. The National Court agreed with CAT, saying the allegations "show signs of crimes of genocide which ought to be investigated."

China's Ministry of Foreign Affairs called the decision "ridiculous." A spokesman at the Chinese embassy in Madrid, speaking anonymously according to embassy policy, says, "It's absurd to expect that China is going to respond to the demands of another country." Referring to the case of a Spanish cameraman killed by US fire in Iraq, he adds, "No one expects George Bush to stand trial for José Couso's death."

Although the case could incriminate former Chinese President Jiang Zemin, few here believe that the investigation will threaten China's status as Spain's most-desired trade partner, a relationship that has flourished in the last year. Not only did the two countries' prime ministers exchange visits in 2005, Spanish companies invested a total of 60 million euros in China that year, up from 46 million euros the year before. And in 2006, Spanish investment in China is expected to double.

For supporters of the decision, the investigation diverges from Europe's usual willingness to gloss over China's human rights record in favor of promoting better trade relations. "We're used to letting them get away with everything on the basis of our belief that they'll buy more or sell cheaper," says CAT's coordinator Alan Cantos. But others are skeptical about the decision's effect on trade relations. Alfredo Pastor, a professor of economics and China expert at the University of Navarra's International Graduate School of Management says, "Countries always underestimate the reaction that this kind of thing will provoke," but adds that he doesn't expect the case will have an impact. And the spokesman at the Chinese embassy firmly denies any effect on trade adds, "No one is taking this seriously."

The court has the power to call the Chinese to testify, but cannot force them to comply. Professor Carnerero admits, "It's unthinkable that Spanish justice will have the Chinese before it in court." For Thubten Wangchen, that likelihood doesn't matter. "Just the fact that the National Court has agreed to take the case is a great success," he says. "Spain may not have sufficient power to force China to justice, but at least the Spanish people will know what Tibetans are suffering."