Ruling allows for investigation of China's population transfer to Tibet under the principles of international law on belligerent occupation.
On March 30, 2011, Court Nº2 of Spain's National High Court, the Audiencia Nacional acknowledged Tibet is an occupied state under international law. This means, among other things, that China's conduct in Tibet since 1949 may constitute "grave breaches" of the Fourth Geneva Convention of 1949, as well as violations Articles 608 and 611.5 of Spain's Criminal Code, the Spain-based Centro de Apoyo al Tibet recently announced.
"This recognition by Court Nº2 of the Audiencia Nacional is a major step in the Court's investigation of the case for genocide and other crimes committed in Tibet by Chinese officials" said Alan Cantos of Centro de Apoyo al Tibet (CAT).
The designation comes as the result of CAT's submission of a request last year to the Audiencia Nacional during the Court's broader investigation into the case for genocide and other crimes committed in Tibet. In particular, CAT's request sought to recognize Tibet as an occupied state since 1950, thereby making the mass transfer of Chinese population (the occupying state) to Tibet (the occupied state) illegal under Article 49 of Geneva Convention IV, to which China is a party.
The ruling references Article 23.4 of the Spanish Law of Judicial Procedure, which asserts that while the application of the principle of universal jurisdiction may be restricted by requiring a connection to a state, this limitation can only be applied "without detriment to what is laid down in the international treaties and conventions signed by Spain." In this light, according to Article 146 of said treaty ratified by Spain in 1952, serious violations of the Geneva Convention should be pursued regardless of the nationality of the defendants.
The Court's decision not only accepts CAT's arguments regarding population transfer from an occupying state (China) to an occupied state (Tibet), but does so in the same terms as those the prosecutor used in his report, which the Court's judge quoted: "the investigation be extended to war crimes foreseen in Geneva Convention IV, and in agreement with the plaintiffs request and congruent with the lawsuit lodged."
Dr. José Elías Esteve Moltó, the vice president of CAT and the lawyer who drew up the lawsuits, declared: "This legal decision shows the relationship between universal jurisdiction and human rights, and shows how international crimes committed in Tibet have their root in the China's military occupation of the nation and people, an occupation that has systematically denied the Tibetan people the right to self-determination as recognized by the UN General Assembly in 1961".
"It is especially gratifying that these judges and prosecutors are still evaluating the evidence and applying the law without giving in to other interests or pressures," continued Mr. Cantos. "The principles of universal jurisdiction shall continue to be UNIVERSAL, as it was conceived, and not "a la carte" by submissive governments and powerful states or businesses that use a double standard when applying International Law."
BASED ON A PRESS RELEASE BY Comité de Apoyo al Tíbet (CAT)