The World as Argentina’s Oyster: Understanding Article 118 and Universal Jurisdiction

By: Ethan Abisellan

Edited By: Faith Magiera and Anna Dellit

In October 2008, in Spain, Judge Baltasar Garzón opened an investigation on alleged crimes against humanity committed under the Franco regime. However, the Criminal Chamber of the Spanish National Court quickly blocked the investigation, citing the currently in effect 1977 Amnesty Law, which guarantees impunity to those who participated in crimes during the Spanish Civil War under the Franco regime. [1] Frustrated with this ruling, relatives of victims traveled to Argentina seeking justice. Soon after, on April 14th, 2010, a criminal complaint was filed before Argentine courts alleging crimes against humanity in Spain perpetrated by the Franco regime. Since then, “la querella Argentina” – “the Argentine complaint” – has grown into an ongoing 14 year investigation withover 330 complaints filed on behalf of victims.[2]

But, why Argentina?

Article 118 of the Argentine Constitution grants Argentine courts jurisdiction over cases “committed outside the territory of the Nation against public international law”, conferring Argentine courts with a unique universal jurisdiction. [3] Essentially, any crimes in violation of international conventions can be prosecuted in Argentina. Cases like the Argentine Complaint ground their investigations on violations of the Rome Statute of the International Criminal Court (ICC), which established four international crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. [4]

The Argentine Complaint against Spain marked the first time Article 118 was invoked to prosecute crimes against humanity outside Argentina. Since then, human rights activists from around the globe – often with the help of their Argentine counterparts – have brought about dozens of cases accusing countries of international crimes. Currently, there are ongoing investigations regarding international crimes allegedly committed in China, Colombia, Myanmar, Saudi Arabia, Venezuela, and more – all thanks to Argentina’s universal jurisdiction. [5]

The effectiveness of universal jurisdiction, however, seems to be painfully minimal. The demands, findings, and verdicts of Argentine courts hold no real enforcement outside of Argentina. The attempts of Argentine courts to exact justice can be written off by other countries as encroaching on sovereignty or simply denied outright, as in the case of Spain. For example, Judge Maria Romilda Servini – who presided over the Francoist investigation – issued arrest and extradition warrants against 20 senior officials of the Franco regime in late 2014, to no avail. [6]

Although it may not have any real enforcement or pressure to effect change, Argentina’s universal jurisdiction demonstrates the nation’s unwavering commitment to international law and human rights. This commitment gives human rights activists – especially those living in oppressive regimes – avenues to express dissenting opinions, expose human rights violations, and pursue justice in impartial, competent courts. [7] Moreover, universal jurisdiction might have powerful implications on guiding Argentine foreign policy and raising awareness of human rights violations on an international scale.

Notes:

1. Garcia, “Overview of the Argentine Lawsuit against the Crimes of the Franco Regime:Outcomes and Challenges,” 2.

2. Íñigo Álvarez, Laura, and Aintzane Márquez Tejón, “Ten Years of the Argentine Inquiry into Franco-Era Crimes: What Has Been Achieved?”

3. Digital Library of the Ministry of Justice, “Constitution of the Argentine Republic,” 20.

4. International Criminal Court, “Rome Statute of the International Criminal Court,” 3.

5. Uyghur Human Rights Project. “Landmark Decision as Argentina Court of Cassation Reverses Judge’s Decision Not to Open Uyghur Case for Crimes against Humanity and Genocide.”

6. Garcia, “Overview of the Argentine Lawsuit against the Crimes of the Franco Regime:Outcomes and Challenges,” 3.

7. Amnesty International, “Argentina: Amnesty International Makes Submission to Argentine Criminal Court’s Investigation into Crimes against Humanity in Venezuela.” 

Bibliography:

Amnesty International. “Argentina: Amnesty International Makes Submission to Argentine Criminal Court’s Investigation into Crimes against Humanity in Venezuela.” Amnesty International, 27 Feb. 2024, www.amnesty.org/en/latest/press-release/2024/02/amicus-curiae-argentina-venezuela-crimes-against-humanity-universal-jurisdiction-human-rights/.

Digital Library of the Ministry of Justice. CONSTITUTION OF THE ARGENTINE NATION, www.biblioteca.jus.gov.ar/Argentina-Constitution.pdf.

Garcia, Alejandro Lerena. “Overview of the Argentine Lawsuit against the Crimes of the Franco Regime: Outcomes and Challenges.” Journal of Political Sciences & Public Affairs, 2021, www.longdom.org/open-access-pdfs/overview-of-the-argentine-lawsuit-against-the-crimes-of-the-franco-regime-outcomes-and-challenges.pdf.

International Criminal Court. Rome Statute of the International Criminal Court, 2021, www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.

Íñigo Álvarez, Laura, and Aintzane Márquez Tejón. “Ten Years of the Argentine Inquiry into Franco-Era Crimes: What Has Been Achieved?” Oxford Human Rights Hub, 27 Oct. 2020, ohrh.law.ox.ac.uk/ten-years-of-the-argentine-inquiry-into-franco-era-crimes-what-has-been-achieved/.

Uyghur Human Rights Project. “Landmark Decision as Argentina Court of Cassation Reverses Judge’s Decision Not to Open Uyghur Case for Crimes against Humanity and Genocide.” Uyghur Human Rights Project, 12 July 2024, uhrp.org/statement/landmark-decision-as-argentina-court-of-cassation-reverses-judges-decision-not-to-open-uyghur-case-for-crimes-against-humanity-and-genocide/.