Ever since the dramatic arrest of the former Chilean dictator Auguste Pinochet in London in 1998, at the behest of the Spanish judge Baltasar Garzon, human rights advocates and victims of both torture and crimes against humanity have seen the Spanish courts as a possible place to look for judicial redress. If Spain is willing to take a stand on universal jurisdiction, then victims hope that they will find in Spain a justice denied to them at home.
Now Spain is faced with a large test of its judicial courage. A court case is underway which, if successful, could see former Chinese leaders Li Peng (ex prime minister)and Jiang Zemin (ex president) facing charges for crimes against the Tibetan people. Given the reluctance of any European nation to offend China, that is still quite a big "if".
Such cases are argued on Article 23.4 of Spain's Fundamental Judicial Laws. This article recognises that Spain possesses the jurisdiction to pursue universal crimes beyond her frontiers, regardless of where these crimes are committed, or the nationality of either the victims or the perpetrators.
The Tibetan case has been brought by Thubten Wangchen, a Tibetan born Spanish citizen, supported by the Comite de Appoyo al Tibet . The case was rejected on September 6th by the Spanish National Court no 2, but will now be appealed by the plaintiffs.
In rejecting the case, the court cited an earlier Supreme Court descision over a case brought against the Guatemalan government by a group of Mayan Indians in which the Spanish judiciary appeared to be rowing back from the liberal interpretation of Article 23.4 favoured by Baltasar Garzon. The Supreme Court in the Guatemalan case ruled that there was "insufficient national connection" between the plaintiffs and Spain for the principle of universal jurisdiction to apply. That case, too, has gone to appeal.
Thubten Wangchen is a Buddhist monk and Director of Casa del Tibet in Barcelona. His mother was disappeared in 1957, when she was eight months pregnant and he himself was arrested in Tibet in 1987.
It is a case that is guaranteed to make the Chinese government furious and the Spanish government extremely nervous. The CAT and their legal experts have vowed to pursue their appeal to the Supreme and Constitutional Courts and, if necessary, the European Court of Human Rights.
In the meantime, remembering what happened to Pinochet, it might be prudent for Li Peng and Jiang Zemin to postpone that holiday in Marbella for a year or two.