South-South Justice for Colombian Victims? Shedding Light on the (Limited) Potential of Universal Jurisdiction in Argentina

[Silvia Rojas Castro is a Legal Advisor at the European Center for Constitutional and Human Rights (ECCHR) in Germany and a South-North Expert between ECCHR and the Centro de Estudios Legales y Sociales (CELS) in Argentina. Both ECCHR and CELS supported the filing of the complaint against Uribe Vélez in Argentina.

Dr. Julieta Mira is a researcher at the National Scientific and Technical Research Council (CONICET, Argentina) and based at the Institute of Justice and Human Rights of the National University of Lanús (UNLa). She currently coordinates a research project on universal jurisdiction in Argentina and is co-founder of the Academic Network Memory, Truth and Justice.]

In recent years, civil society organizations have increasingly turned to Argentina to file criminal complaints under the principle of universal jurisdiction (UJ) for international crimes committed in the Global South, including in Myanmar, Nicaragua, Venezuela, and Colombia. Under this principle, Argentine authorities can investigate and prosecute grave international crimes committed outside of Argentina by non-Argentine nationals. Having Argentina as a forum for UJ carries hope to overcome the warranted criticism that UJ is a neo-colonial project reinforcing the hierarchies of the Global North over the Global South. Still, there are reasons to be cautious in this optimism considering the challenges that, in general, UJ cases face and the particularities of bringing such cases in the current Argentine context. 

This post will focus on the complaint filed by Colombian victims and human rights organizations against former president Álvaro Uribe Vélez for crimes against humanity and war crimes. Taking this case as an example, we aim to share a critical analysis of the current status of UJ in Argentina, and the long way ahead to become a cornerstone of South-South justice.

The Colombian ‘False Positives’ Crimes Denounced in Buenos Aires 

On 7 November 2023, four Colombian citizens and three human rights organizations, namely Colectivo de Abogados José Alvear Restrepo (CAJAR), Corporación Jurídica Libertad (CJL), and the Comité de Solidaridad por los Presos Políticos (CSPP) filed a UJ complaint against former President Álvaro Uribe Vélez for at least 6,112 cases of crimes against humanity of murder and enforced disappearance, and murder as a war crime. The complaint was supported by Maximo Castex and Bénédict De Moerloose, Argentine and Swiss human rights lawyers respectively. 

These cases are commonly known in Colombia as ‘false positives’ (falsos positivos), referring to the army’s massive murder or enforced disappearance of civilians who were falsely presented as guerrilla rebels killed in combat. Army brigades targeted impoverished young men, community leaders, indigenous persons, peasants, or people with disabilities to increase their statistics on combat casualties. On many occasions, their murders were staged, disguising them with combat wear and weapons and their bodies disposed of in mass graves. Although such crimes have been documented since the 1980s, the majority of the cases occurred between 2003 and 2008. 

Álvaro Uribe Vélez was President and Commander in Chief of Colombia between 2002 – 2010. At the time, Colombia was experiencing the most violent period of its 60-year internal armed conflict. In this context, Uribe Vélez enacted a policy of ‘Democratic Security’, consisting in the increased militarization of the country to confront guerrilla groups, thus pressuring armed forces to boost their operational results. For soldiers who killed large numbers of alleged guerrilla combatants, this policy created perverse incentives including awards, promotions, or increased days of leave, among others; in turn, army units who did not achieve the desired number of casualties were sanctioned. As a result, ‘false positives’ increased exponentially during Uribe Vélez’ term in office until 2008, when UN reports and news exposés brought to public attention the grave and systematic character of these crimes. 

Since then, Colombian civil society has been relentless in their struggle for accountability for these crimes, with the UJ complaint in Argentina being the most recent effort. Domestically, they have been successful to a certain extent, particularly after 2016 when the Colombian government and the Fuerzas Armadas Revolucionarias de Colombia (FARC), the biggest rebel group in the country, signed a peace agreement. Among the transitional justice measures created with the agreement, the Special Jurisdiction for Peace (SJP) was established to investigate crimes committed by both parties. Since then, the SJP included the ‘false positives’ as one of its 11 prioritized macro-cases. There is one major caveat to the work of the SJP though: it is barred from investigating the responsibility of former presidents, including Uribe Vélez. Under Colombian constitutional law, only a special commission of the Congress can investigate him, which, to date, has remained inactive. 

In international fora, namely at the International Criminal Court (ICC), the efforts to open an investigation against Uribe Vélez were unsuccessful. Based on submissions by human rights organizations, the Office of the Prosecutor (OTP) of the ICC opened a preliminary examination for the situation in Colombia in 2004. In 2012, the OTP reached the conclusion that there were reasonable grounds to believe that ‘false positives’ could amount to crimes against humanity of murder and enforced disappearance and prioritized these crimes to continue its complementarity assessment. The assessment was concluded in 2021, when the OTP decided to close the preliminary examination arguing that Colombian authorities were “neither inactive, unwilling nor unable to genuinely investigate and prosecute Rome Statute crimes.” This despite the fact that human rights organizations had expressed their criticism of the results that the Colombian government presented to the OTP, including the lack of genuine efforts to investigate the responsibility of Uribe Vélez for ‘false positives’ crimes. 

Turning to UJ in Argentina

Even with domestic and international options leading nowhere, Colombian victims and human rights organizations saw Argentina as an adequate forum to bring their claims against Uribe Vélez. This filing is part of an increasing trend of UJ cases in Argentina, with several factors that, at least in theory, speak for Argentina: mainly the favorable legal framework for UJ complaints and the expertise accumulated by Argentine institutions for the prosecution of dictatorship crimes.  

Firstly, UJ in Argentina is anchored in art. 118 of the Constitution establishing that “when the crime is committed outside the borders of the Nation, in violation of ius gentium (derecho de gentes), Congress shall determine by a special law the place where the trial is to be held.” So far, the Congress has not regulated this situation, meaning that, in theoretical terms, UJ in Argentina is similar to the concept of broad or pure jurisdiction, with no requirements regarding any kind of national connection or the physical presence of the defendant in the country. However, trials in absentia are not allowed in Argentina, thus reducing the chances of an oral trial based on a UJ complaint where a suspect is not in the country.

Secondly, those who have decided to file complaints in Argentina point out the prestige of the human rights movements in the country. The dynamics of criminal justice are linked to the these movements and the existence of various state policies to promote Memory, Truth and Justice. This perspective translates into a positive evaluation of the Argentinean federal courts and prosecutors in terms of their knowledge of the nature of state crimes, and their expertise to investigate these acts. For instance, some of the lawyers in the UJ cases are Argentines whose trajectories demonstrate strong links with human rights, both locally and internationally.

Despite the seeming openness of Argentina to UJ complaints, where recently an Argentine prosecutor requested the issuance of arrest warrants against Myanmar’s government and military officers, to this date no cases have advanced to a trial. In fact, we are beginning to notice a pattern of dismissal of investigations following UJ complaints, which are later overturned in appeals procedures. This has occurred in several cases, for example crimes in Venezuela and the Rohingya genocide in Myanmar. 

The Colombian complaint is, however, an outlier in this trend. After filing, the case was assigned to Federal Prosecutor Carlos Stornelli and Federal Judge Sebastián Ramos. Shortly thereafter, Prosecutor Stornelli decided to formally open the investigation on 19 December 2023. Judge Ramos sent a request to the ICC for information on pending procedures involving Uribe Vélez. The judge received a response from the ICC in June 2024, and on 1 July decided to recognize the standing in the process of Colombian victims and Colombian organizations CAJAR, CJL, and CSPP. Thus, they can now participate in the proceedings, request evidence, and even request an indictment in case the prosecution abstains from it.

Cautious Optimism about UJ in Argentina 

Despite the progress in the Colombian and other UJ cases in Argentina, it is important to consider the challenges associated with these novel proceedings in the country. Firstly, as no law has thoroughly regulated UJ in Argentina, it is in the hands of the judiciary to decide on the interpretation of its underlying principles, for example, in terms of its complementary or subsidiary character. Just recently, on 8 August 2024, the National Criminal Appeals Chamber of Buenos Aires reiterated its decision to close the investigation for the Uyghur genocide – despite a previous ruling by a higher court ordering it to revise its decision – on the grounds of the complementarity rule and exceptionality of UJ, along with the existence of similar proceedings in Turkey. Whether this will become the standard interpretation of UJ in Argentina remains to be determined, in the meantime creating additional complexity for pending cases. 

Secondly, despite Argentina’s impressive record in conducting trials for dictatorship crimes, the high judicial backlog for ordinary cases is noteworthy. UJ cases, which are usually more complex and require international cooperation, would thus take even longer than an ordinary case in the country. Thirdly, the involvement of governments for cooperation, for example to execute arrest warrants or request mutual legal assistance, necessary to access evidence in these cases, could become a factor to either hinder or prioritize certain cases that are in the interest of Javier Milei’s right-wing government. 

In light of these challenges, the Colombian ‘false positives’ UJ complaint so far seems to be faring well. It is still unclear, however, whether the prosecution will request the interrogation of Uribe Vélez or even request the issuance of an arrest warrant against him. The prospects of a trial opening are still far away, and might not even occur. However, it is the first time that criminal proceedings have been opened against Uribe Vélez for ‘false positives’ crimes. Further, the UJ complaint has generated ample media attention in Colombia, with Uribe Vélez still being a controversial public figure losing the political credibility he once enjoyed. In that sense, the complaint has been successful in maintaining the demands for justice for ‘false positives’ crimes as a relevant legal and political issue in Colombia.

All in all, this and other UJ cases in Argentina are slowly opening new avenues for justice, albeit filled with challenges and uncertainties. For these reasons, we remain cautiously optimistic about its potential to become an example of South-South justice and will continue to focus on these cases to critically observe how human rights organizations, lawyers, victims and institutions continue to develop this legal practice against impunity of international crimes.