New Delhi, Feb. 16: 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 sizeable 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 testifying if
their testimonies were beneficial to the case.
"From a legal point of view, it would be very good for the case and the
victims if their testimonies were beneficial to the case," 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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