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Authors

Craig Peters

Abstract

Universal jurisdiction is the progressive and contentious legal principle that courts have competence to adjudicate cases involving alleged violations of international law regardless of the nation in which those crimes occurred, the nationality of the victim, or the nationality of the perpetrator. While the limits of more conventional theories of jurisdiction are defined by sovereignty, territory, and nationality, the exercise of universal jurisdiction is based solely on the nature of the crime alleged. That is, when a crime is so serious that it violates peremptory norms of international law, courts are entitled, or even obliged, to hear those cases regardless of when, where, and by whom those crimes were committed. The cases at the heart of this Comment typify the use of universal jurisdiction in order to prosecute perpetrators of serious international crimes. In June 2005, Spanish nonprofit organizations, including the Committee to Support Tibet (Comite de Apoyo al Tibet) and the Tibet House Foundation (Fundacion Casa del Tibet), filed a complaint before the Spanish National Audience (Audiencia Nacional). The complaint accused former Chinese government and military officials of committing, inter alia, acts of genocide and torture in Tibet from 1950 to the present, including the murder or displacement of more than a million Tibetans. At first glance, it may seem audacious, or even outlandish, that the Spanish judiciary might concern itself with a complaint involving acts allegedly committed decades ago, thousands of miles from Spain, and by and against parties with no explicit connection to Spain. Yet, as will be explored below, the involvement of a Tibetan immigrant and Spanish national named Thubten Wangchen Sherpa, in conjunction with the gravity of the crimes alleged, clearly qualified the complaint for consideration by Spanish courts. That is, Thubten’s affiliation with both Spain and China served as a bridge connecting official Chinese acts and Spanish interests. Further, because the prohibition of genocide, torture, and other acts are regarded as jus cogens, customary international laws so fundamental that their violation is universally condemned, Spanish courts are entitled to hear claims alleging such violations. This is supported not only by the weight of international legal instruments that Spain is a party to, but also by Spain’s own criminal law and judicial statutes. Of course, just because Spain has such a right in theory does not mean it has exercised this right fully in practice. This Comment argues that Spain has a unique opportunity to provide at least a small measure of justice to countless Tibetans who have been the victims of serious crimes over the past sixty years. By agreeing to adjudicate the claims noted above, Spain can make a powerful statement that its judiciary will exercise universal jurisdiction—regardless of the politico-economic influence of the accused state or its representatives— when complainants have established a prima facie case that they have suffered violations of their fundamental human rights. In doing so, Spain can solidify its place on the vanguard of universal jurisdiction as a sorely needed leader in a tepid international system of justice that has been moving toward complacency, thereby abating the dangerous rise in impunity for state officials responsible for serious crimes.