The Spanish Supreme Court has decided to overturn a lower court decision and accept a case accusing a top Chinese official of genocide, placing Spain once again at the forefront of holding to account those responsible for international crimes.
"This is the good news in international justice at the moment because international tribunals can do what they can do, but they are very limited," says Geraldine Mattio, a researcher in Human Rights Watch's (HRW) International Justice Division.
The Supreme Court decided on 6 June that the Spanish judiciary should rule on a case against Jia Qinglin, reportedly ranked fourth in the Chinese Communist Party (CCP). Jia is accused of genocide for his complicity in persecuting Falun Gong during his term as a top official in Beijing from 1999 to 2002.
Falun Gong, a spiritual practice claiming tens of millions of adherents, was banned in China in 1999 and has since received brutal treatment from the Chinese regime, particularly in Beijing where many go to appeal the ban. Human rights organizations and the United Nations have documented thousands of cases of torture by Chinese authorities against members of the spiritual group, including 2898 death cases.
Taking the Lead
Overturning a lower court's ruling to reject the case, the Supreme Court based its decision on a provision of Spanish law for exercising universal jurisdiction. This legal principle allows domestic courts to hear cases of genocide and crimes against humanity regardless of where they occur and what the nationality of the defendant is.
"From a legal perspective, this is a very important step since it recognizes the application of Spanish Law for investigating the genocide against Falun Gong," says Carlos Iglesias, the Spanish lawyer who helped file the complaint. "It will serve as a channel for other countries so that they can also apply universal jurisdiction. It will be a legal reference, but also mainly a moral one."
The decision is the latest in a series of rulings over the past decade in which Spanish courts have attempted to try foreign officials for grave human rights abuses. The first and most famous of these was the case of Augusto Pinochet, the former Chilean dictator, in 1999.
"Spain has been at the forefront of the exercise of universal jurisdiction in Europe," says HRW's Geraldine Mattio. "It has the most open and extensive law."
According to Mattio, in addition to political will, the specificity in Spain is that the law does not require the alleged criminal to be on Spanish territory and that besides the public prosecutor, private actors like victims groups can also push for an investigation.
Both provisions bear on the recent decision regarding Jia. He does not currently reside in Spain and the case was initiated by fifteen Falun Gong practitioners, who were either victims themselves or had family members who had suffered abuses in Beijing during Jia's time in office.
Investigation and Extradition
The immediate consequence of the ruling will be the launch of an investigation by a Spanish court into the crimes committed by Jia. Similar investigations have already begun in Spain regarding officials accused of genocide in Rwanda, Guatemala, and most recently Tibet.
Mattio says that such initial inquiries are important because they provide flexibility in issuing arrest warrants when alleged criminals arrive in a country.
"If there is a fair expectation that they could one day be in Spain, it is important to have an investigation," she says. "Denmark was once warned that a Russian general accused of war crimes was coming for a conference, but he had left before they could investigate and act on the information."
Should the evidence arising from the inquiry suffice, this could lead to a request for Jia's extradition to Spain to stand trial. Though it is unlikely that China would comply, Jia could be extradited to Spain should he travel abroad, joining several Latin American officials with a similar fate.
Last year, following extradition from Argentina, ex-naval officer Adolfo Scilingo was successfully brought to trial and sentenced to 640 years in prison for committing crimes against humanity during the country's "Dirty War." According to Mattio, another Argentinean official was recently extradited to Spain from Mexico and will go to trial this year.
What Difference Does it Make?
Even if officials are not extradited to face trial, Mattio and Iglesias maintain that the investigation process itself has value. According to Mattio, from a practical perspective, it punishes criminals by putting them on notice and preventing them from traveling abroad for fear of being extradited.
Iglesias says that there is also a moral and deterrent aspect to the inquiry. "[The investigation] is a measurement of recognition for the dignity of the victims," he says. "It will send a clear message to the Chinese Communist government: universal jurisdiction exists over the human rights violations and horrible atrocities it is committing and each person that has taken part in these crimes will be held accountable. None will escape punishment."
He says that Jia's case also serves as an important precedent for the more than 50 other complaints filed in 33 countries against former Chinese president Jiang Zemin and other top CCP officials for their active role in persecuting Falun Gong.
Despite such potential to punish and deter human rights abusers, many governments have been hesitant to exercise universal jurisdiction for fear of diplomatic backlash or placing their own officials in danger of being sued abroad.
Morton Sklar, Director of the World Organization Against Torture USA, rejects such concerns. "Some kinds of abuses like torture and genocide are so horrendous and so universally condemned that the exercise of universal jurisdiction is called for," he says.
"It may be true that it would be undesirable to apply [universal jurisdiction] across the board to all human rights violations, but when talking about the most serious abuses, every country has a responsibility."
As for those who doubt the effectiveness of law suits abroad, Sklar says that every little bit counts. "Every pressure point, every time, every place where courts or international agencies or governments are able to make clear that abuses have taken place, that is significant," he says. "No one action is necessarily going to change [the situation] but collectively, building condemnation can have an impact."
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