Argentina’s Universal Jurisdiction

March 15, 2024

The landmark case against Chinese officials was submitted under Argentina’s universal jurisdiction provisions. On August 17, 2022, lawyers acting for the Uyghur Human Rights Project (UHRP) and the World Uygur Congress (WUC) filed a criminal complaint in Buenos Aires for genocide and crimes against humanity committed against Uyghurs and other Turkic people. It is the first time ever that evidence of the genocide happening in northwest China has appeared before a court.

While criminal prosecutions usually require a connection to the country in which they are brought, the principle of universal jurisdiction overcomes this restraint. International law recognizes certain crimes as so atrocious, that any nation should have the authority to hold perpetrators accountable for crimes such as genocide, crimes against humanity, war crimes, and torture– regardless of where the crime occurred and who committed it.

Victims and human rights groups have accused the Chinese government of committing genocide against the Uyghurs and other predominantly Muslim ethnic minorities in the Uyghur Region. Civil society organizations and journalists have documented widespread imprisonment, forced disappearances, and torture against the Turkic Muslim population since 2017. The Chinese government has detained over 1.8 million people in “re-education camps” as part of a massive, forced labor and surveillance program. And global companies sourcing from factories exploiting this forced labor benefit from these atrocities. Unlike in the United States, in countries like Argentina, victims and human rights organizations can file criminal complaints directly with the judiciary, which will then work with prosecutors to open an investigation into alleged crimes and subsequently decide whether it will hear the case on the crimes alleged.

The lawyers filed the criminal complaint pleading the principle of universal jurisdiction, which has been incorporated into Argentine law under Article 118 of the Argentine constitution provides that crimes “against public international law” committed outside of Argentina shall be tried as determined by a special law, and Article 5 of Law 26,200/06 spells out the federal courts’ jurisdiction for these heinous crimes.

Principle of ‘aut dedere aut judicare’ and universal jurisdiction* It is important to distinguish between universal jurisdiction and the principle of aut dedere aut judicare. Although, in some cases, the two concepts overlap, from a strictly theoretical perspective, they are distinct. The principle of aut dedere aut judicare is intended to prevent impunity for crimes when the requested State refuses to extradite the suspect from its territory. It does not actually establish on what basis jurisdiction should be exercised if the requested State chooses to submit the case to its own judicial authorities. By contrast, universal jurisdiction is in itself abasis that enables jurisdiction to be exercised based solely on the nature of the crime, regardless of where it was committed, the nationality of the victim or the alleged offender, or any other connection to the national interests of the State exercising jurisdiction. Hence, the principle of aut dedere autjudicare may overlap with universal jurisdiction when a State has no connection to the crime other than the mere presence of the alleged offender in its territory and, in application of the principle of aut dedere aut judicare, chooses to refuse extradition, with the result that universal jurisdiction must be invoked to prosecute the case.

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