The Argentinian Exercise of Universal Jurisdiction 12 Years After its Opening

[María Manuel Márquez Velásquez is an LL.M. Candidate in Advanced Studies in Public International Law at Leiden University. LL.B. Universidad del Rosario, Bogotá-Colombia.  She is currently Assistant Student Editor at Leiden Journal of International Law and Coordinator of the Theory of Public International Law Research Group at Universidad del Rosario.]

In 2005 while Argentina’s amnesty law was in force, Spain sentenced the former Argentinean officer Adolfo Scilingo to 640 years of imprisonment. This marked the first time in history a national court had processed and convicted an individual for crimes against humanity committed in another country. Five years later, the situation would be reversed when the first case against the Spanish dictatorship was opened.

In 2010 after being blocked by Spanish authorities, two victims of Franco’s regime and several NGOs presented a claim to the Argentinian judicial system for the alleged commission of genocide and crimes against humanity in Spain from 1936-1977. The plaintiffs plead the principle of universal jurisdiction contained in article 118 of the Argentinian constitution and developed in article 5 of Law 26,200/06 to sustain Argentina’s jurisdiction and seek justice.

However, to open the Cause, Argentina had to resolve several preliminary issues: the characterization of the crimes, the prevalence of Spanish courts’ jurisdiction, and the possibility to prosecute the crimes according to domestic law. In this regard, Argentina stated that the facts constituted international crimes covered by the principle of universal jurisdiction. It established that no investigation was being carried out in Spain for the same facts or crimes; thus, other countries could prosecute those responsible. It explained the need for extraterritorial jurisdiction, referring to the obligations arising from the four Geneva Conventions, the Rome Statute, the Convention Against Torture, the Convention for the Prevention and Punishment of Genocide, and customary international law, and finally, established the possibility of such exercise under article 118 of the constitution.

Since opening the investigation, Argentina has been highly proactive. It has requested Spanish authorities to gather and hand over elements of proof and information, taken the testimony of dozens of plaintiffs, and ordered consulates to take the testimony of witnesses overseas. It has issued 24 arrest warrants against alleged torturers while asking Spain to extradite the alleged perpetrators and aid with the diligences, as well as coordinating regionally and internationally with victims, national authorities, and NGOs.

The Cause 4591/10, instructed by Judge Servini, better known as the Argentinian Complaint, is a milestone for victims, a rekindling, and a geographical shift in the implementation of universal jurisdiction, and the beginning of a stony path that counts today with over 350 complaints.

Critiques and Challenges Faced

The process has been complex and full of setbacks for the victims. Judge Servini and the plaintiffs have dealt with difficulties ranging from challenges to legitimacy and admissibility to obstacles in collecting testimony and proof. 

From the outset, Spain has firmly resisted the investigation and rejected the extradition requests of the individuals against whom arrest warrants have been issued. It has contested the Cause’s legitimacy on the restrictive application of the legality principle, retroactivity prohibition, Amnesty Law validity, the statute of limitations applicable to the crimes, ongoing investigations, prescription of ordinary crimes, and preference of territorial jurisdiction.

Likewise, opponents to the claim have argued its inadmissibility under the concurrence of jurisdictions and/or the subsidiary nature of such exercise; Highlighting that the proceedings being held in Spain –the country with territorial jurisdiction– would prevent Argentina or any other country from exercising universal jurisdiction.

Another issue faced in the process has been collecting evidence and testimonies. An ocean between victims’ ages and the obstacles to their travel, the lack of cooperation of Spanish authorities, and the fear of the rupture of relations with Spain have made it difficult for Argentina to investigate. The distance from Spanish people, the national nature of the proceeding, and the absence of support; have hampered discussion, diffusion, and participation in Spain. This is aggravated by a lacking collective memory in Spain, characterized by the influence of the Pact of Silence in Spanish society and education and the general dearth of information available about the events.

Innovation, Resilience, and Positive Impacts 

However, Argentina has shown judicial resilience in responding to the pushback and critiques by accepting the concurrent jurisdiction and subsidiarity arguments and refuting its application to the Complaint. Judge Servini has argued on behalf of absolute universal jurisdiction, stating that the prosecution of serious offenses is not conditioned on the presence of the allegedly responsible on the territory or the seriousness of the violations.  Furthermore, she has affirmed that the concrete facts of the claim and Rogatory Commission have not been the object of judicial actions in Spain, whose jurisdiction to prosecute is prevalent. Thereby, allowing any other state to prosecute the crimes.

To overcome the distance of the proceedings, Servini has implemented innovative methodologies taking testimonies via video conference or through consulates, traveling to Spain, and seeking regional and autonomous authorities’ aid in collecting evidence and articulating witnesses.

Moreover, ‘the investigation has resulted in concrete progress in plaintiffs’ efforts to seek redress for crimes committed by Franco-era officials.’¹ The Complaint has gathered a documentary record of the alleged crimes, given space for the victims to testify before public authorities, and created a platform for the victims of repression, specifically those of the ‘less violent’ second period, to acquire visibility. It has led to the uncovering of mass graves and enabled the identification of the buried victims rendered otherwise impossible by the Spanish government’s decision to cut funding for exhumation processes.

Additionally, due to the efforts in Argentina on 5^th of December 2013, the Spanish justice summoned Juan A. González Pacheco –Billy el Niño– and Jesús Muñecas Aguilar –Capitán Muñecas– to appear before Court. This is the first-time alleged torturers of the regime have had to testify before a Spanish and have been imposed precautionary measures.

The lessons of past exercises of universal jurisdiction have been learned. With multiple organizations working across borders, the victims at the forefront of the Complaint, and partnerships between the Latin America and Spain, the investigation has progressively acquired visibility and international support. It has continued giving the victims measures of restitution and memory while fomenting trans-nationalization and the generation of self-recognition discourses among the plaintiffs.

All of which portrays that although controverted, the Complaint has sanctioned Spain’s approach to justice and obfuscation of the past. While reconfiguring victims’ realities and self-perception, the Cause has reshaped international law’s approach to universal jurisdiction.

Legitimacy and Authority

In seeking to legitimize its exercise of extraterritorial prosecution, Judge Servini has invoked relevant national and international law sources characterizing the crimes as genocide and torture as a crime against humanity; thus, covered by universal jurisdiction. The methodology implemented by Argentina aims to protect and promote international and democratic values such as those contained in the prohibition of torture, genocide, and other jus cogens norms, demonstrating that the procedure is carried out following the core values of the society in which the Court operates both in the national and international level. 

Concurrently, the procedure has been fair and equitable, allowing Spanish authorities to present their arguments, progress, and express their opinion requesting, among others, the presentation of reports and urging them to cooperate with the procedure.

Furthermore, to guarantee the representation and adequate defense, the Court has sought for proceedings to be carried out with the accused’s presence in the national territory. Hence, Argentina has requested their extradition under the judicial cooperation treaty while allowing the Spanish authorities to contest such requests. 

Likewise, it is relevant to note that equal opportunities to contend the decisions of the Court have been given to the accused. Proof of this is the appeal filed by the defendant Martín Villa against his arrest warrant, culminating in the order’s revocation by the Federal Chamber of Argentina.

Ultimately, the Complaint has provided space for both victims and non-litigating actors to participate in the procedure, receiving, among others, the testimony of Judge Baltazar Garzón of Spain, International Organizations, NGO declarations, and different amicus curiae.

Moreover, although initially criticized, the Complaint has gained more strength and weight at the national and international levels. The Complaint has received the support of numerous Argentine and Spanish victims’ organizations and the testimonies of more than 5,000 people. 

The recognition and authority of the Cause are shown among others by the support document signed by more than 40 Spanish congressmen and deputies, the creation of the platform for the coordination of state activities ‘CEQUA’, the approval by an absolute majority of the Institutional Motion of the Basque Parliament, the creation of the Andalusian, Zaragoza and Catalan-Balearic and Switzerland platforms of support, the political and legal discussion of extradition requests in Spain and the approval by the Argentinian Chamber of Deputies of the Motion to Support the complaint and arrest warrants.

Additionally, the authority of the exercise is verifiable through the involvement, acceptance, and support of various NGOs and international institutions. The Amnesty International Spain campaign asking to extradite the alleged perpetrators, the report of the Work Group on enforced disappearances, and the report of the UN special rapporteur Pablo Greif and the recommendations to Spain are notable examples of the involvement, transnational support, and relevance of the Complaint. 

Finally, the summons to appear and measures imposed by the Spanish National Court to the two accused –Pacheco and Muñecas–, the absolution of Judge Garzón, the collection of testimonies through offices around the different regions of Spain, and the exhumation of Timoteo Mendieta and others buried in mass graves are undeniable proof of the authority enjoyed by the Court. The application and implementation of the decisions by those opposed to the process evidence the authority and respect of the Cause even when the bases of its legitimacy might be contested. 

The Future of the Complaint

The Argentine Complaint still has a long way to go. Although the legitimacy and authority of Argentina’s jurisdiction have increased, and new actors have come to play, the possibility for the extradition of criminals, and their appearance before the Court, remains uncertain. Situations like the revocation of the arrest warrant against Martín Villa by the Argentinian Federal Court, the emphatic refusal of the Spanish authorities to extradite the defendants, and the passage of time – a quiet enemy of the victims who have died during the Complaint – demonstrate the persistent difficulties faced by Servini. 

However, along with these challenges come the achievements: the advances in the social, political, and transnational spheres encourage the struggle for justice. The recognition of the victims, their participation, the discussion of the ‘untouchable,’ breaking the pact of silence, clarification of truth, the exhumations, support by autonomous authorities, and administrative actions such as the renaming of streets; show the profound impact of the Complaint both in Spain and internationally. The success of the Cause makes the exercise an invaluable example of universal jurisdiction that furthers the quiet expansion of the principle and constitutes a legacy for future cases.