
Last month, Spain’s National Court indicted China’s ex-president, Hu Jintao for grave crimes against humanity, South China Morning Post and other publications reported.

The Madrid-based Tibetan Support Committee originally filed a lawsuit against then-President Hu in 2006, alleging that the Chinese Communist Party leader was responsible for the torture and repression of the Tibetan people. The lawsuit also names six other former leaders of the CCP, including Mr. Hu’s predecessor, Jiang Zemin.

Hu Jintao was party chief in the Himalayan region from 1988 to 1992. In the wake of Tiananmen Square, he declared military rule to suppress anti-government protests in the Tibet autonomous region. The indictment also cites his actions as general secretary of the CCP.

China has denounced the indictment as trying to interfere with China’s domestic affairs.

“We firmly oppose any country or person attempting to use this issue to interfere with China's internal affairs,” a Chinese Foreign Ministry spokesperson said after the indictment was handed down.

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Beijing claims sovereignty over Tibet and gained control of the region in 1950. Yet, many Tibetans remain loyal to the exiled spiritual leader, the Dalai Lama.

The Spanish court’s ruling comes at a time when tensions are running high over Tibet. Last month it was reported that Chinese police fired upon Tibetan protestors, wounding 60 people. Since 2009, more than 120 Tibetans have set themselves on fire as protest against Chinese rule.

Spain has given its National Court universal jurisdiction for cases involving war crimes and other serious violations of international law like crimes against humanity and genocide. Established in 1977, the National Court has pursued cases under universal jurisdiction ever since it issued an international warrant for former Chilean president Augusto Pinochet, who overthrew Salvador Allende and oversaw a regime that murdered thousands during his 17-year presidency. Pinochet was detained in London for almost two years until UK home secretary Jack Straw ordered his release on medical grounds, allowing him to travel back home to Chile.


Since then, Madrid has investigated mass killings by the Francoist dictatorship, and indicted Rwandan officials linked to the 1994 genocide, former Nazi guards, Israelis involved in Gaza bombings, and Salvadoran ex-soldiers for the murder of Jesuit priests during the civil war. Once considered to have the broadest universal jurisdiction in the world, in 2009 the government restricted the courts to cases where the victims were Spanish citizens. The Spanish legal system allowed the suit against Mr. Hu to be heard because one of the plaintiffs, Buddhist monk Thubten Wangchen is a Spanish citizen.

The majority of jurisdiction cases have not resulted in convictions and it is virtually unthinkable China’s indicted leaders will be extradited and forced to defend themselves before a Spanish court.

A New Precedent for Today’s Europe or A Continuation of Quiet Diplomacy?

Many EU countries, especially indebted ones, have kept quiet about Tibet. Most EU member states have left China’s human rights issues to EU institutions. That could largely be because Beijing has been known to punish other countries for perceived offenses. For example, Norway continues to incur China’s ire for awarding the 2010 Nobel Peace Prize to Chinese dissident Liu Xiaobo. High-level meetings have been frozen and deals blocked between China and EU member states for meeting with the Dalai Lama, a highly sensitive issue for the Chinese.

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Much of Europe has greatly toned down its public criticism of China’s human rights violations but the sick man of Europe is aspiring toward truth and justice. Will China punish Spain over the National Court’s investigation, ban high-level meetings, and implement soft sanctions that affect trade and investment? While it’s still uncertain what kind of diplomatic reaction there will be, investors seem concerned that the incitement could hurt Spanish brands, especially as they look to access China’s markets to help rejuvenate and stabilize the economy.

Instead of caving in to Chinese demands, this could encourage Europe to move away from its quiet diplomacy and toward a cohesive European policy on human rights that strengthens the EU’s ability to put greater pressure on Beijing and far-flung places, where its citizens are not properly protected by the rule of law. Still, it’s debatable whether or not European countries should intervene in criminal cases elsewhere and empower their domestic courts to hear international criminal justice cases.

Beyond a State of Impunity

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Trying to exercise universal jurisdiction is extremely difficult. In 2009, the National Court brought charges against the top officials in the Bush administration for breaching international law and torturing innocent detainees at Guantanamo Bay. Four years later the investigations are still pending.

It is not likely that U.S. officials will ever be subjected to arrest and trial for alleged crimes in Iraq and Afghanistan, nor will Russians authorities in the Northern Caucasus or Chinese statesmen over Tibet. Powerful helmsmen all over the world have had the muscle to avoid accountability and reaffirm their sovereign prerogatives.

Universal jurisdiction is not without its criticisms, and many failures. But at a time when the international system of justice is in shambles, and moving toward complacency, there needs to be a force willing to expose and confront abusive regimes. Why not Europe’s domestic courts? Spain’s recent indictment of a former head of state opens up an old, polarizing debate at an interesting point in time when leadership is running amok.