Lasciando cadere il procedimento legale tibetano rimangono impuniti i cinesi responsabili di migliaia di vittime tibetane

La Cat, insieme ai co-querelanti, la Fondazione casa del Tibet e Thubten Wangchen, conferma il suo disappunto e rigetto per la chiusura del procedimento legale e dei deboli argomenti adoperati nella principale Corte Centrale.

Segue l’articolo in inglese:

CAT and co-plaintiffs Fundación Casa del Tíbet and Thubten Wangchen, wishes to express its deepest rejection and disappointment at the shelving of the lawsuit and the weak legal arguments wielded in the Central Court Nº 1’s ruling. This rejection and disappointment is especially motivated by the return to helplessness and impunity that this ruling implies for the victims of Chinese repression and their families, many of whom had already testified in this court.

Although it is true that the shameful modification of the law in order to restrict the application of universal justice made it necessary for the judge to reconsider the viability of the case, it is equally true that on 21st December the CAT’s lawyers presented a detailed document on the grounds of law to prevent this legal black hole.

To the political complicity with impunity we must now add that of a legal decision supported by the public prosecutor. The forceful arguments put forward by the CAT’s lawyers showed with a wealth of detail about national and international law, that interpreting the law should necessarily lead to the investigation being maintained rather than shelved. But it appears that this abundance of allegations was not enough.

The CAT will of course appeal this decision and informs that the other lawsuit for genocide and various other crimes in court room nº 2 is still open.

BACKGROUND: The abovementioned lawsuit was accepted on 5th August 2008 for various crimes of repression committed in Tibet between 2006 and 2008 in a lawsuit opened in that court for crimes against humanity in the brutal repression after the demonstrations of 10th March 2008. A subsequent extension to the lawsuit included the crimes in the border pass of Nangpa La and the massive population transfer of Chinese to Tibet.

SEPARATION OF POWERS:  The disgraceful sequence of events was as follows: In spring 2009 the judge Santiago Pedraz asked the Chinese Government for permission to question three current ministers against whom there was evidence of their having committed crimes against humanity by supposedly having organized ‘a generalized and systematic attack against the Tibetan civilian population, causing 203 deaths, more than 1,000 wounded and nearly 6,000 people arrested illegally or disappeared’. Two days later the Chinese Government demanded that Spain take ‘immediate and effective’ measures to withdraw ‘the false lawsuits’, one of them about the Tibetan genocide, in order to ‘avoid damaging Sino-Spanish relations”.

Within weeks the PSOE and PP, in a burst of rare mutual understanding, quickly amended for clearly political motives Article 23.4 of the Law of Judicial Procedure, which included the principle of universal justice. Despite which the Vice President, Mª Teresa Fernández de la Vega, and the Foreign Minister, Miguel Ángel Moratinos, both repeatedly declared that this amendment strengthened ‘our commitment’ with this principle and endowed it with ‘greater effectiveness”. In view of the result, one can only wonder who this commitment is with? Certainly not with the victims. And what effectiveness were they referring to ? That of juniversal justice or the effectiveness of impunity?

During the Spanish Prime Minister Zapatero’s visit to Israel last October, the Israeli President, Simon Peres, thanked him publicly for shelving the Palestinian lawsuit concerning one of the Gaza bombings (RTVE.ES / EUROPA PRESS 15.10.2009). Yet the law hadn’t even been changed at that time. In this case, one wonders whether congratulations and thanks have already been received from the Chinese Government or whether the triumph of impunity will be celebrated behind closed doors at the next meeting on commercial agreements?

ARGUMENTS: Below are our arguments against this decision to shelve the lawsuit and against some of the points in Santiago Pedraz’s ruling, which are as surprising as they are weak:

1) The judge declares: “No international treaty or convention exists that obliges courts to try the crime against humanity that this case involves”, when in fact this type of criminal have been persecuted ever since the Nuremberg trials, not only by Allied courts since 1945 but also in 1961 by the court of the district of Jerusalem and Israel’s Supreme Court (the Eichmann case) in 1971, by the Bangladeshi courts in the case requesting the extradition of Pakistani officials to India in 1981, by the Dutch High Court in the Menten case, and in 1983 by the French High Court in the Barbie case. More recently the International Criminal Courts for former Yugoslavia and Rwanda and the Statute of the International Criminal Court have demanded that these crimes against humanity be persecuted.

2)  The judge similarly avoids going into detail about the facts that led to an extension to the lawsuit being presented, namely, the massive transfer of the occupying population, Chinese, to the occupied territory of Tibet, which constitutes a serious violation of the Geneva Conventions and is thus a war crime. Article 146 of said Geneva Convention lays down that every State “has the obligation to pursue those persons accused of having committed or having ordered someone else to commit a serious violation and should bring them before the courts regardless of their nationality”.

3)  The ruling to shelve the lawsuit also scorns the idea that resolving conflicts through non violence and encouraging peace should be considered sufficient link to continue processing the lawsuit. It would appear that this principle – the backbone of the entire United Nations system and all international human rights law, of which Spain is part – is not valid in this case, unlike the impunity of those who violate these same fundamental rights. The ruling also ignores that there are important cultural links with China (conventions between universities, the Cervantes and Confucius Institutes, etc) and does not consider as such the many economic and commercial deals that often lead to company relocations that in turn leads to massive job loss in Spain.

4)  The ruling also cuts short the preliminary proceedings by, amazingly, applying the new requirements of Article 23.4 of the Law of Judicial Procedure both preventively and retroactively, while choosing to forget that during the course of these proceedings some of the accused could travel to Spain and could  be arrested.

5)   The CAT is deeply saddened by the legal interpretation made by central Court Nº 1, which now bases itself on the amended law and no longer recognizes its competence not even for genocide, despite precedents in the Audiencia Nacional itself, like the Pinochet case or, more recently, that of Central Court Nº 4, which on 26th November 2009 considered the Spanish courts competent to try war crimes in Iraq without requesting any links of national connection.

6)  We believe that international law has not been interpreted in good faith as required by the Vienna Convention (which is part of Spain’s internal law), as what International Human Rights Law wishes above all else is to put an end to impunity, not to endorse it. In this respect the Council of Justice of the European Union (Decision 2003/335/JHA of 8th May 2003) makes it the obligation of all EU States to bring to trial and punish all those responsible for international crimes, something the court has apparently ignored.

REACTIONS:   Many Tibetan victims and their families, such as Palden Gyatso, Takna Jigme Sangpo and the young nuns of Drapchi prison, have already expressed their deep concern at the threat of being abandoned by Spanish justice halfway towards the first glimmerings of legal protection. One of the prisoners tortured at Drapchi, Rinzin Choenyi, declared to El País that “Spain should continue defending her independence even if Chinese pressure is very strong. Spanish democratic principles have no price”. Similar feelings were voiced in the same article (EP 3-06-09) by victims of other cases, such as those of Falun Gong, the Sahara, Palestine and Guatemala, who felt threatened by the at that time possible alteration to the law. It is a sad tale regarding the progress of our democratic principles that we have to tell today.

The investigative lawyer who drew up the lawsuit, José Elías Esteve, on hearing the news, declared: “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.”

CONCLUSION:  To conclude by echoing the words of Carlos Castresana (prosecutor who triggered the Pinochet case) on another occasion and who has been a source of inspiration in this battle for justice in Tibet, our political leaders and many of those who interpret the rights of the victims so restrictively “are blind to the world of values, bow down before domineering power relations, are insensitive to judicial solutions to conflict and are incapable of meeting the human needs of the victims and those who suffer.”

Fonte: Cat Press Release, 2 marzo 2010


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