Landmark Decision as Argentina Court of Cassation Reverses Judge’s Decision Not to Open Uyghur Case for Crimes Against Humanity and Genocide
July 12, 2024 | 7:00 a.m. EDT
For Immediate Release
Contact: Omer Kanat +1 (202) 819-0598, Peter Irwin +1 (646) 906-7722
On 11 July 2024, the Argentinian Federal Court of Criminal Cassation handed down their decision in relation to a criminal complaint filed by the Uyghur Human Rights Project, World Uyghur Congress, and Lawyers for Uyghur Rights for genocide and crimes against humanity. The Court of Cassation held that the Court of Appeal of Buenos Aires had been wrong to agree with the Prosecutor’s decision to archive the complaint and ordered the Prosecutor to open an investigation. The result of yesterday decision is that the first instance judge will have to open the case and being the Court’s investigatory stage of proceedings.
This is a groundbreaking moment for the Uyghurs who are now closer to achieving justice for the international crimes committed against their people by Chinese state agents, as part of the systematic repression of Turkic people in the Uyghur Region.
The Court of Cassation’s decision follows the filing on 16 August 2022, of a criminal complaint in Buenos Aires, under the universal jurisdiction provisions set out in Article 118 of Argentinian Constitution, which allow for complaints concerning international crimes to be tried by any court in Argentina, no matter where these offences occur around the world.
This was followed by a decision of the Prosecutor to archive the complaint because she believed that a criminal complaint to the Police in Turkey and a civil case in France prevented her from proceeding. The prosecutor’s decision led to the appeal before the Court of Appeal in Buenos Aires on 21 December 2023. The judges at that hearing sided with the Prosecutor’s decision. The Court of Appeals decision to do so was overturned by the Court of Cassation in their ruling of 11 July 2024.
The criminal complaint presents cogent evidence about the international crimes being committed against the Uyghur people, including forced labour, forced abortion and sterilization, torture, mass internment in camps, and killings and is supported by both expert evidence and evidence of victims who have managed to escape from China. The complaint was filed by the World Uyghur Congress, the democratically elected body representing the Uyghur people, Washington based human rights NGO the Uyghur Human Rights Project, and Lawyers for Uyghur Rights, an organisation of lawyers who work towards countering the repression of the Uyghur people by the Chinese State.
As well as the overturning the Court of Appeal’s decision to allow the Prosecutor to archive the case, the Court of Cassation also overruled their decision not to grant the victims civil party status. Once the case is opened by the Court of First Instance, it will enter the investigatory stage, whereby victims will be called to give evidence. This would mark a historic opportunity for the Uyghur people and be the first-time that the evidence of the atrocities being committed against the Uyghurs is heard before a criminal court.
After hearing such evidence, the Judge can indict defendants, issue arrest warrants, and send the case to trial.
In a similar case brought by Rohingya victims of the Burmese regime, the Prosecutor has requested arrest warrants from the Court for the arrest of high ranking military commanders. Currently, Argentina also has universal jurisdiction cases open in relation to crimes committed in Colombia, Nicaragua, Venezuela, and Saudi Arabia.
The lawyers acting for the WUC and UHRP are international law barrister Michael Polak, who is chair of Lawyer for Uyghur Rights and esteemed Argentinian lawyers Gabriel Cavallo and Juan Nieto who have experience providing justice for the victims of international crimes before the Courts of Argentina.
Commenting on the decision, World Uyghur Congress President Dolkun Isa stated:
“This decision is encouraging, and a step closer to accountability for Uyghurs. Perpetrators of atrocity crimes should not be allowed to evade prosecution. We are very pleased about the strong stance that the Court has taken which justifies our decision to bring this case in Argentina, where there is a strong belief in justice for those targeted by repressive regimes.
We take this moment to repeat our calls for the international community to act and to help us achieve freedom and dignity for the Uyghur people”.
Uyghur Human Rights Project Executive Director Omer Kanat stated:
“This decision is great news and strengthens our belief that the Argentinian Courts will see this case through according to Argentinian law. This news gives new hope to Uyghurs. It sends a strong signal to the Chinese authorities that the perpetrators of crimes against the Uyghur people are not being forgotten.
We will continue to fight for justice for our people and we thank those who have backed our case including those who have submitted amicus briefs in support.”
Barrister Michael Polak, Director of Justice Abroad and chair of Lawyer for Uyghur Rights stated:
“This is a monumental decision in countering impunity for the most serious crimes that can be committed against people based on their ethnicity and religion.
There is a strong movement in international criminal law towards universal jurisdiction, that is the hearing of cases concerning crimes such as genocide, crimes against humanity, and torture in domestic courts. This case demonstrates why this is taking place as whilst China can block the creation of an international tribunal focussed on their well-documented repression of the Uyghurs, given their permanent membership of the Security Council, they are unable to do this when independent objective judges are involved, as is the case in Argentina.
This will be the first opportunity for victims to give firsthand evidence about the torture and abuse that they have witnessed and suffered in a criminal court. We are confident that once the investigatory stage begins the Court will find that the evidence only points in one direction and will decides to issue arrest warrants for those responsible.
The treatment of the Uyghurs is of a type that we thought had been confined to history and it is important that democratic states around the world renew their calls on China to stop the repression and to show that these types of crimes have consequences for those who commit them.”
Gabriel Cavallo of JC Abogados y Asociados stated:
“The ruling recognises the right of Uyghur victims to access justice in Argentina and paves the way for them to be heard. It demonstrates the best of the Argentine tradition in matters of universal jurisdiction. The road to is justice is long, but we hope that soon the victims will be providing their testimonies and that this leads to both knowledge about the crimes committed against them as individuals as well as generating universal awareness about the systematic attacks against the Uyghur people”
The victims’ argument was supported by an amicus brief submitted by Turkish Constitutional lawyer Ali Yiildiz and amicus submissions supporting the opening of the case were also submitted on behalf ofthe International Bar Association’s Human Rights Institute by Dr Ewelina Ochab and Argentinian lawyer Roberto Durrieu, and Italian international justice NGO STRALI by President, Benedetta Perego,and Head of the Department of International Criminal Law, Tomas Manguel.
Previously, the University of Notre Dame’s Religious Liberty Initiative submitted an amicus brief drafted by Lord Alton, a British politician and human rights advocate; Ambassador Sam Brownback, former U.S. Ambassador at Large for International Religious Freedom; Ambassador Kelley E. Currie, a human rights lawyer who formerly served as the U.S. Ambassador-at-Large for Global Women’s Issues; Nury Turkel, a Uyghur American human rights advocate and Commissioner of the U.S. Commission on International Religious Freedom; and Frank Wolf, author of the International Religious Freedom Act of 1998 and a Commissioner for USCIRF.
The organisation bringing this case are fundraising for the legal proceedings and donations can be made here:
crowdjustice.com/case/uyghur-case-argentina
For comments on this case by the lawyers or the victim organisations please email contact@justiceabroad.co.uk or call +44 020 7936 3637 or +44 741 519 1591
Notes to Editors
Judgment
The presiding judge held that:
1. “The challenged decision is legally arbitrary given the absence of sufficient foundation and a base of precise and reliable judicial information that justifies the archiving of the proceedings and the refusal to exercise universal jurisdiction. The issue involved in the complaint made by and on behalf of victims of crimes against humanity and genocide, and their willingness to resort to this jurisdiction to obtain justice, demand the maximum effort in obtaining the greatest, best and quickest combination of evidence. that define the destination of the claim”.
2. “The [appealed] ruling does not give reasons for the legal and political reasons why the priority guarantee of effective judicial protection of the victims would be restricted”.
3. “The Argentine judicial system has the adequate, necessary and effective resources for the victims of these crimes to access jurisdiction not only to report their commission but also to achieve reparation for the damage suffered. And an appropriate way to guarantee their fundamental right to effective judicial protection is by allowing them the full exercise of the right to complain recognized in our domestic legislation”.