Photo credit: AFP

Photo credit:  AFP

On November 18 Spain’s National Court ordered international arrest warrants against five former senior Chinese leaders for their suspected role in committing international crimes in Tibet. The order came on the back of the Court indicting former Chinese President Hu Jintao. The decisions were received with wild excitement by some, for the hope the court order carried. Others, however, wondered if such warrants were simply an exercise in futility because political expediency would never allow these warrants to be enforced or the Chinese leaders to be brought to court.

While these questions are certainly important, what is significant at this point is not the eventual outcome, but the message that these court cases send. Whether or not these warrants are enforced and justice is properly served, the decision sends the important message for Tibetans and supporters of the Tibet movement that a national court has accepted their claims of torture and repression. These two court cases are also significant for the larger world of international justice and human rights.

Many have likened the November 18 decision to that of the Augusto Pinochet case. Chile’s President Pinochet (1974-1990) was indicted for human rights violations committed in Chile by Spanish magistrate Baltasar Garcon on October 10, 1998. Six days later he was arrested while on a visit to London and was held under house arrest. After a lengthy judicial process, the House of Lords (the highest British court[1] at the time) found that Pinochet could be extradited to Spain under UK law.[2]  Jack Straw, the Home Secretary at the time, however, decided that Pinochet was too ill to be extradited to Spain and let him return to Chile in 2000. Pinochet was never convicted for his crimes.

The case of Pinochet was not significant for its final outcome. It was significant because it broke down barriers that ex-leaders benefit from impunity. The court order on the Chinese case has the same significance – that ex-leaders can be held accountable despite having been in power and still enjoying powerful friends

The next question is on practical enforcement. Are these warrants of any use if no country is going to enforce them because of the realities of power politics?  Clearly, China will not hand over its ex-leaders to be prosecuted. Yet there are consolations. Due to these warrants, the ex-leaders could be detained when they travel to Spain, or other countries, which recognize court orders signed by Spain. So, while the final decision on extradition would indeed be political (as in the case of Jack Straw deciding to ignore the judicial ruling), in most countries – especially in Western Europe – there would at least have to be a judicial process before politics comes to play on whether the Chinese leaders are to be extradited to Spain to stand trial.

As a judicial process would have to determine if the accused person can be extradited or not, all the while the person in question would, like Pinochet, remain under house arrest. Therefore, unless the order is reversed, future international travel for the five Chinese ex-leaders means taking a risk. They will be in fear that they could be arrested even for a short while. It is also likely that in countries where the Spanish writ runs, leaders of the host country would discreetly advise against the Chinese ex-leaders visiting because the political fallout would be embarrassing to the host as well.  The risk, the anxiety and signals from foreign leaders that they are unwelcome, all serve to sully the image dictators like to cultivate. And for dictators who kill and torture to preserve their image, image is everything.

Therefore, if any one of these five ex-leaders wants to travel, he will have to ponder the possibility of the country he is visiting carrying out the warrant. Further, every time they weigh the pros and cons of travelling, they will also remember that Tibet is the reason. The ex-leaders will not be as free as they used to be.

For survivors of the mass human rights violations, simply sullying an ex-leader’s image or barring foreign travel is not enough. However, it is a step in the right direction. Almost all of the international criminal cases against leaders have come to court not because officials in government wanted it, but because of the patient persistence of survivors and the tireless support of human rights activists. Both survivors of mass human rights violations, as well as human rights activists the world over, understand that the road to justice and accountability is long and hard. But acts such as the decision by Spain’s National Court serve as beacons that ensure both survivors and activists stay the course until justice is done.

[1] Until 2009 the British House of Lords functioned as its court of last resort. The upper house of the British Parliament (called the House of Lords) appointed “Law Lords” – highly qualified full time judges to carry out the judicial work of House of Lords. These Law Lords functioned as Supreme Court justices would do in the US.  The Constitutional Act of 2005 created a separate Supreme Court for the UK in 2009.

[2] House of Lords v. Evans and other Ex. Parte Pinochet.  Decision given on March 24 1999


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