Universal jurisdiction for crimes against humanity

The Uyghur case in Argentina´s Federal Courts

StraLi has been collaborating with the complaint presented by Omer Kanat (Director and Representative of the “Uyghur Human Rights Project”); Dolkun Isa (President and Representative of the “World Uyghur Congress” and as a direct victim of the Uyghur diaspora and genocide); and Michael Polak (President and Representative of the “Lawyers for Uyghur Rights”) against the Chinese government for crimes against humanity committed against the Uyghur community. The complaint was presented in Argentina, arguing that it must be applied universal jurisdiction to investigate these crimes.

The facts alleged and crimes committed were:

– Implementation since 1990 of public policies aimed at “colonizing” the territory historically occupied by the Uyghur people, through – among other mechanisms – the migration of members of the Han community to Xinjiang province.

– Implementation in 2014 of the “Strike Hard Campaign Against Violent Terrorism” programme, which reportedly included different forms of surveillance, restrictions on freedom of movement (mass, preventive and arbitrary, extrajudicial and judicial detentions), as well as impediments on trade and work of the Uyghurs.

– Enforced disappearance of persons previously held in detention centers called “education centers”.

– Implementation of active policies to reduce the birth rate among the Uyghur community.

– Separation of families.

– Obliteration of the Uyghur culture through various actions aimed at repressing and eliminating their cultural traditions (destruction of places of worship, prohibition of the use of their language, among others).

Based on the above, the complaint detailed the cases of three victims who suffered the alleged conduct: Quelbinur Sidik, Gulzire Awulqanqizi, and Gulbahar Jelivova, and also included expert evidence from Professor Adrián Zenz.

As for the legal, the alleged conducts would fall under the international crimes of genocide and crimes against humanity (articles 2, paragraphs “b”, “c”, “d” and “e” of the Convention on the Prevention and Punishment of Genocide; article 7, paragraph “1” a], c], d], e], f], g] and h] of the Rome Statute, approved by National Congress Law N° 25,390 and ratified on 16 January 2001).

The representative of the Public Prosecutor’s Office requested the dismissal of the proceedings due to the impossibility of proceeding, as the prerequisites to enable the universal jurisdiction of Argentine courts were not met. She argued, primarily, that there is already a criminal process underway regarding the same facts initiated before these proceedings, referring to the situation in the Republic of Turkey.

On the other hand, the Prosecutor indicated that there is also evidence of a judicial case in France, as a group of civil society organizations based in that country filed a request for judicial information on crimes against humanity, genocide, and organized crime trafficking, against some multinational apparel companies, arguing that they would have benefited from the forced labor of Uyghurs in the manufacture of their products.

The Judge, based on the Prosecutor’s arguments and the lack of impulse from the representative of the Public Prosecutor’s Office, as established in art. 120 of the Argentinean National Constitution and the procedural law, decided to close the investigation.

In December 2023, Strali submitted as Amicus Curiae, arguing that the prosecutor’s reasoning was arbitrary, and consequently, so is the judge’s resolution, which only limited itself to reviewing the legality of the prosecution’s opinion but did not perceive the arbitrariness of the prosecution’s arguments.

On 26/12/2023, The Federal Court of Appeals of the City of Buenos Aires (Chamber N° 1), confirmed that decision, the closure of the investigation. Subsequently, a cassation appeal was filed for the case to be reviewed by the Federal Court of Cassation, the highest criminal court in the country, which had overturned that closure and sent the case back to the first instance Judge to initiate the investigation into alleged crimes against humanity reported by Uyghur community representatives, committed in China.

Despite this, On 8 August 2024, the Federal Court of Appeals in Buenos Aires decided to close the case once again, despite the previous ruling by the Federal Criminal Cassation Court.

Following this decision, Strali submitted a new Amicus Curiae in support of the cassation appeals filed by the victims, with the aim of reopening the investigation. In our amicus, we argue that:

  1. There is no evidence of an ongoing criminal process in either Turkey or France that would justify the dismissal of the investigation in Argentine courts. The case was closed based on a claim that the complaint filed in Argentina concerned “analogous facts” to those alleged abroad, yet there is no evidence of identity in terms of victims, perpetrators, or conduct.

    Furthermore, the Appeals Court, in its ruling, prevented the lower court judge from ordering the    measures suggested by the Cassation Court to obtain reliable information on possible complaints    filed in   other countries.
  2. Argentina applies the principle of universal jurisdiction in its pure or absolute form, meaning that its application does not require any connection to Argentina for the offences being investigated. Indeed, such a requirement would contradict constitutional norms and the jurisprudence historically upheld by Argentine courts.
  3. Finally, decisions like this one place Argentina in a difficult position within the international community, given that the Supreme Court, in its landmark “Simón” ruling, affirmed that a state that fails to exercise jurisdiction over such crimes fails in its obligations to the entire international community.

For these reasons, we have requested that the Federal Cassation Court overturn the dismissal and directly order the investigation to proceed, and that it recognise the victims as parties in this case regarding crimes against humanity.

We remain committed to international justice and to ensuring the right of victims to obtain justice, and we will continue contributing from our role in this and other important cases.

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