Genocide—Universal Jurisdiction in Spain

The Spanish National High Court has agreed to consider a lawsuit filed by a Madrid‑based non‑governmental organization (NGO), human rights group Committee to Support Tibet, concerning allegations of genocide and crimes against humanity .^[1] The complaint was rejected initially by the lower court, but accepted this week by a three‑judge panel upon appeal.^[2]

The complaint purports to have evidence that huge numbers of Tibetans disappeared or were killed by the Chinese government and military forces that entered Tibet in 1951.^[3] The complaint is also said to contain the testimony of individuals who fled Tibet, some after spending as much as 40 years in political prisons.^[4] Individuals named as responsible parties in the complaint include former Chinese President Jiang Zemin, a former prime minister, and several military and security officers (most retired).^[5]

The NGO argued that the legal principle of universal jurisdiction for international crimes should apply in this case. Spain formally embraced universal jurisdiction in 1999 and cited it in earlier High Court Opinions.^[6] Under this type of judicial authority, a foreign national court acts in the manner of a proxy or substitute for a court that might otherwise claim jurisdiction over the person (by nationality) or the act (by sovereignty).

Universal Jurisdiction
Universal jurisdiction is a principle in customary international law that establishes a right of jurisdiction in any nation to try individuals accused of international crimes, regardless of where the alleged crime was committed and regardless of the nationalities of the alleged perpetrator(s) or victim(s). Thus, a sovereign jurisdiction can not offer safe haven to its nationals accused of international crimes.

The principle is specific to crimes committed in the international plain, such as genocide, war crimes, and crimes against humanity, and is based in the rationale that such acts constitute immediate offenses to all states and that any state may act to redress the offense. Opponents of universal jurisdiction warn that courts run the risk of becoming political actors or of usurping the sovereign right of states to deal with problems in international relations with regard to past acts.^[7]

Universal Jurisdiction in Spain
Early applications of universal jurisdiction in Spain include a 1998 opinion in which the Spanish National High Court held that it was against the spirit of the Geneva Convention Against Genocide to limit jurisdiction to territorially qualified courts or international tribunals because genocide is “regarded as a crime of extreme gravity in the whole world and affects directly the international community, indeed all humanity, as is intended by the same Convention.”^[8]

If the lawsuit goes to trial in Spain, the court will apply Spanish national laws prohibiting genocide and crimes against humanity to the facts alleged. It must also defer adjudication to any concurrent charges pending against these defendants in China, should there be any such charges.^[9] There are also likely to be extradition issues involved in bringing Chinese nationals into Spanish courts to face international criminal charges.

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CORRECTION NOTE: The courtrooms of the International Criminal Tribunals for Rwanda and the Former Yugoslavia are closed today for a United Nations holiday in observance of Eid al-Adha. Eid al‑Adha is the most important Moslem feast day of the calendar year. Yesterday, we reported that the courts would resume trials today.

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[1] Spanish Court Agrees to Consider Genocide Complaint, Associated Press [hereinafter AP], Jan. 10, 2006. Originally reported by Daniel Woolls, Spanish NGO Seeks Genocide Indictment of China Over Treatment of Tibet, Associated Press, June 28, 2005. See also Spain's High Court Urged to Consider Charges Against China Over Tibet, Voice of America News [hereinafter VOA], Jul. 30, 2005.
[2] AP supra note 1.
[3] AP supra note 1.
[4] Id. See also note 6 infra.
[5] Id. Because the accused individuals are no longer office‑holders, questions of governmental immunity are less likely to arise.
[6] VOA supra note 1.
[7] For a cogent and well‑known articulation of these arguments and others, see Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, 2001 excepted from the author’s book on the Global Policy Forum website, here.
[8] Audiencia Nacional, don Adolfo Francisco (Scilingo) (No. 1998/22604) Nov. 4, 1998, at 3, Legal Ground no. 2. In the famous Pinochet decision, the Spanish National High Court made the same finding with regard to the crimes of torture and terrorism.
[9] Id.