asymmetrical haircuts

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[INTRO TUNE]

 Asymmetrical haircuts Justice. Update with Janet Anderson and Stephanie Vandenberg in partnership with Justice info.net. 

Janet: 00:10  Hi, Steph.

Steph: Hi Janet. 

Janet: 00:12  So ever since we did a podcast, a couple of years ago now, about how alleged crimes against humanity in Venezuela might be investigated and put on trial in Argentina, there’s been kind of an itch for me that I’ve been wanting to look more directly at universal jurisdiction in Argentina, and to understand the hows and the whys. 

Steph: 00:33  Yeah, I did a big story on Ukraine and universal jurisdiction cases in Argentina related to that, and more recently we did the podcast with, uh, Gissou Nia about Iran and having a universal jurisdiction case there. And it does make you wonder, how do all these cases get to where they are? 

Janet: 00:53 And of course we’ve done the Myanmar case, which is a really influential one as I found in, uh, in Argentina when I did end up down this rabbit hole. And we’ve done stuff on it, particularly about the NGOs getting witnesses to Argentina to actually testify, for example.

Steph: 01:12  So there’s a lot here to explore and a lot of those examples that you mentioned, we’ll probably keep coming back to. 

Janet: 01:17  Yeah. Also, just something to put on people’s mental radars is that there’s a really old case that, um, might get mentioned by some people, which is about Spain and Argentina, and that’s about putting Franco era alleged suspects on trial in Argentina. So really just so many different examples. But on behalf of both of us, and hopefully on behalf of some of our listeners, I’ve done the journalistic thing, which is find some interviewees, ask some basic questions, and then kind of put it together to try and make sense of it. I’ve done this, so we could all get up to speed. My suggestion, if that’s okay with you, is that you ask me some questions and then I just kind of pull what my experts have said because I can’t pretend to be an expert myself. And we’ll get some of the answers for you. 

Steph: 02:10  No worries. I can play the annoying, uh, journalist, the pesky journalist I call it, to my interviewees, uh, who asks a lot of questions. And also these are the kind of questions I get from editors, and the first one is always: Why Argentina? Now, you and I have watched earlier this week a movie with Louis Moreno o Campo being a prosecutor in the Argentinian Junta trial in the 1980s called Argentina, 1985. So, I understand why that case was big in Argentina because you know, the Junta was there and they did it. But you know, that’s 40 years ago. And how does that still impact, and is that why you still have these cases in Argentina? 

Janet: 02:55  So, let me introduce our special experts that we’re going to bring in as we hear from them. To start with, we have Maia Czarny. She’s a criminal lawyer, Argentinian. She works directly in the federal criminal system dealing directly with universal jurisdiction cases. She’s recently put together a kind of collective book, sort of interviewing different people within the system. It’s the first one that’s been put together about universal jurisdiction. And she’s also recently collaborated with Elies van Sliedregt, who’s been on our podcast before, who is running a whole big program out of Tilburg University called Joined Up Justice. And Maya was involved with conducting interviews in Argentina with different judges and prosecutors. So with Maia I mentioned that first podcast we did with Dalila Seoane, and when we’d asked her sort of why this is, she’d used this phrase, which I loved, which was: “it’s in our genes”. Now, Maia is a bit younger, and she’s definitely a different generation of lawyer. So I asked Maya whether that was still true. Is it really in her genes? 

Maia Czarny: 04:10  I would answer that absolutely. Not only in our social historical DNA, let’s say, but also in how we carry out our tasks when investigating crimes that are basically international crimes or atrocity crimes. But also I would add something that I think is crucial in practical terms, something that Alejandro Teman, an Argentine lawyer specializing in international criminal law, as well, once said something like: “we know how to cut the cake”. And with this, I mean that we have these prosecutors, judges, and their teams, and they all know how to deal with these complex crimes, how to deal with the massive evidence or how to map this kind of atrocities. It’s something that, it’s a special capital that we have in that, in that regard.

Janet: 05:07  And I also approached another Argentinian lawyer, Ezequiel Jimenez, who also helped out by answering some of our questions. And Ezequiel has quite a range of different hats, but in this context, I approached him because he did a kind of academic paper for an organization called CILRAP. Specifically looking at the Myanmar application and what the challenges were around that, and I asked him as well, why he thought that universal jurisdiction was so important, still, in Argentina.

Ezequiel Jimenez: 05:45  This has a very heavy, rich, and important historical background. It doesn’t, you know, exist in isolation. And, and this is obviously perhaps the movie that came out a few years ago makes, the the best argument about the Junta trial in the eighties where coincidentally, Moreno Campo was one of the prosecutors. I think for the audience to remember the, you know, the attacks on the Israeli embassy during the nineties in Argentina, which created a tragedy, that AMIA, AMIA is the name of the organization of the Jewish organization in Buenos Aires, that was bombed, that went for decades and decades and decades, it is still not resolved. The culprits are very likely in Iran or Lebanon, and we are unable to get them to testify and they’ve been Interpol read notices for them. And so in the, in the general imaginary of people in Argentina, universal jurisdiction is justice for the victims of the AMIA bombing. To the extent that only a few months ago, this new government passed a law for trials in absentia for that particular case. So in that particular case, yeah, maybe the government or in general there is not a lot of support, but I think in general, the support for jurisdiction for these crimes is still there and it has to do with these elements of history and policymaking that is quite recent as well. 

Janet: 07:09  Okay, so that’s the first point that I think is interesting for people to acknowledge. You mentioned the movie, Steph, and do check out our Patreon this month to hear our review. That really focuses on these really first big trials against the military leadership, the Junta. So homegrown trials about homegrown issues. And uh, this month also we’ve just put out a pod on corporate complicity. Again, this is about Argentine companies and Argentine cases, but also, and we will come back to them. As Ezequiel started to say there, sort of the politics, the political sphere does matter and Ezequiel was mentioning in that, and I think one other interviewee, but I’m not using a clip from them at this point, he says that, you know, it’s because it’s seen as part of what is useful for Argentina, that universal jurisdiction has still that deep emotional appeal, because of these 1980s cases and then because of what happened in the eighties when it was either Iran or Iranian agents who were alleged to have been responsible for the bombing of that Jewish institute that he mentions in Buenos Aires. So lots of different factors are going on there. I’m gonna set it up now and say, you know, the continuation of Universal jurisdiction against this political background, might be in some kind of precarious position at the moment, but, you know, let’s explore all of the elements and then, then come back back to that. And there are loads of factors that pose challenges. 

Steph: 08:53  Well, you’re, you’re dangling a very big piece of red meat in front of me and I am not gonna be too shy to nibble at it. When you talk about these factors and the resources and what makes universal jurisdiction possibly precarious in Argentina, I am mostly looking at politics and we have the recent change in government in Argentina with the Milei government, which is quite right wing, I would say, and uh, seems to be more of the Trump style of government, uh, than anything else. So, um, looking at what we’ve seen from that kind of corner of politics, it seems like maybe there won’t be universal jurisdiction and accountability for alleged mass atrocities.

Steph: 09:40  You’re a woman after my own heart, Steph, exactly the kind of question that I got to, but okay. We’ll tackle that towards the end of the podcast because exactly, I mean, I, I can’t imagine doing a podcast about this and not asking that kind of question. And also we’ll look a bit at resources, but just before we get there, I also want to introduce the third voice that I had interviewed, this is Ben or Bénédict De Moerloose, who is a lawyer who specialized in universal jurisdiction in particular, and particularly in Argentina. The reason why I tracked him down was a via via contact, but also because he co-drafted some kind of law and practice document that you can find on the trial international website, which is quite a technical document. But he definitely kind of knows his stuff about all the ins and outs of Argentina’s sort of way that it does its universal jurisdiction. He’s also part of the team of lawyers in a case that’s about Columbia. And again, we’re not gonna go into the specific details on that, but that’s also part of, you know, again, one of those names of things that comes up with Argentina. So Ben told me that he also thought that Argentina’s universal jurisdiction interest is not only because of the domestic sort of, it’s part of the way we do things, but also because there are lots of universal jurisdiction trials against Argentine military in other parts of the world. That also then got reflected back in Argentina with people asking themselves, well, why are they being put on trial somewhere else like Spain? And we are not doing it ourselves.

Bénédict De Moerloose: 11:30  I think it’s also important to remember that the accountability process in Argentina is at least partly a product of universal jurisdiction elsewhere because of the reopening of domestic prosecution in Argentina were influenced by universal jurisdiction cases against Argentine suspects abroad and, principally in Spain where the Slingo case was a very important one. Former, a navy official Argentina, navy official who actually confessed having participated in the death of thousands of opponents to the dictatorship who were drugged and thrown from planes into the sea. And that case was brought against him, but also, uh, with more than hundreds of suspects who were not, uh, judged because they were not extradited to Spain, but they were, it was still part of this process. And this. It triggered a dialogue between Spain and Argentina where Argentina at first was reluctant to share information and to extradite suspects, but this in turn triggered a debate in Argentina, and it helped I think also in unlocking justice in this country. So, in a way, there is a back and forth. Now, UJ has been instrumental to the trials in Argentina and now Argentina, UJ is also instrumental to many cases around the world. 

Steph: 13:07  That puts a really interesting kind of, it’s almost a dialogue between Spain and Argentina. And I told you, uh, when we were recording the Patreon Podcast about the movie that I felt that maybe my idea that the ICTY was so very much the beginning, I might have to switch that up for Argentina being the beginning of this kind of accountability for mass atrocities and more things. And now you’re telling me that I might have to look to Spain, which triggered Argentina. So it’s never gonna stop finding the origin. It’s like finding the origin of the Nile, I guess a kind of a Livingston kind of situation. 

Janet: 13:45  Okay. I’m just gonna throw in just for everyone to remember. Another of our Patreons about Pinoche. For a lot of people that’s the kind of the start of the process. So I think that there’s some, there’s a lot of origin stories. 

Steph: 13:55  There is a lot of origin. So I guess international law has many fathers, kind of has many origins. What I am still curious about that if we shelve this discussion about where it all started, is how did it, I don’t wanna say escalate, but how did it grow so much in Argentina? What made Argentina now, not the ground zero, but the place where all these different UJ cases are flourishing because there is a possibility to do it in Spain. We sometimes see it in Spain, but Spain is not the hub of where you really kind of bring your universal jurisdiction cases. All we hear about is people going to Argentina. 

Janet: 14:36  Well, I’m glad you asked me that Steph because I have Maia again and she points to the way that Argentina gives a special space for victims to have a form of direct access. They can really lobby directly. 

Maia Czarny: 14:54  This crucial thing is that the role that victims have under the translation would be private plaintiff, but in Spanish is querella autonoma. As you may know, the UJ cases are carried out applying the local procedural law and under the procedural code of the city of Buenos Aires, it’s not entirely clear if the private plaintiff can file and go further with a case without the presence of the prosecutor. But, criminal courts interpreted in domestic cases that this was possible that they could go further and appeal decisions to close the cases even without the prosecutor. That’s what we call a private plaintiff or querella autonoma. So this logic was transferred, again through case law, to UJ cases, and this was what enabled, uh, victims to appeal the first instance decisions that initially decided to close the cases under UJ. And in this way, they granted the reopening of the cases, and this is how the Federal Appeals Chamber or, afterwards, it depends on the case, the Federal Cassation Chamber, decided to reopen the cases. This is how the most prominent and important cases went further. Namely the one of the Franco Eras, uh, Spain, the one involving Myanmar or Burma. And the one, involving Venezuela mainly. As, it would be expected, maybe this is because Argentina became also gradually a center of attraction, for cases that have high political sensitivity and visibility because it’s an important hub for victims, you know.

Janet: 16:36  Maia mentions there sort of how cases have been rejected at one level and then been allowed by the appeal system in Argentina. We aren’t going to go though into a lesson about exactly how the Argentine system is fully constructed. I’d say reads Ben’s Guide on Trial International for that, which we’ll put a link in the website for, but something I do think it is important for us to acknowledge is that we have investigative judges, which have been very much the people who’ve pushed things forward, and then you have prosecutors who are more part of the system. Part of this kind of thing that may be changing is that the system itself may be changing just as we speak because there are some new guidelines that have come in. There’s a new procedural code, which gives a lot more of the power to the prosecutors who are more part of the system and less these kinds of independent investigative judges and gets them a bigger role to say yes or no to cases. So here’s Benedict describing that new procedural code. 

Bénédict De Moerloose: 17:44  The procedure is about to change or should be changing because there is a new procedural code that has to enter into force. There, the investigation will shift from the investigative judges to the prosecutors and, and with strict or maybe stricter deadlines. So that might also change a bit also how UJ is conducted, how investigations are, are conducted. Maybe for some positive aspects, but it might also change a bit the way. UJ is perceived. The investigative judges are famously very independent on the political sphere; they have been along the years very independent on our forces in these cases and others. The prosecutors are maybe a step closer to the politics. The head of the prosecution is elected by, by the Senate, so that might also change a bit how universal jurisdiction cases are conducted.

Janet: 18:56  And Benedict goes on.

Bénédict De Moerloose: 18:57  I don’t wanna sound too negative on UJ and, you know, to, uh, predictive. And so hopefully nothing will change and the court will uphold the way UJ investigations are conducted and what are the conditions to universal jurisdiction. But we need to observe also, uh, this change from the investigative judges to the prosecutors and see if that has an influence and also if the prosecutors have a different approach to universal jurisdiction, if they try to put more conditions into place. How the courts will react to that, uh, because the case law is pretty, let’s say, stable, saying that there are no conditions on universal jurisdiction, but the principle of subsidiarity, which entails that there cannot be two competing investigations in two jurisdictions, meaning if there is an investigation ongoing somewhere else about the same case and this is a genuine and thorough investigation than the investigative judge in Argentina has to relinquish his competence on the case. 

Janet: 20:05  But for a different perspective. This is how Maia sees it as someone who’s kind of worked actually within the system. 

Maia Czarny: 20:16  I see a big problem there because there is a very different criteria among, prosecutors and judges, and both between prosecutors and first instance judges, as well as between the two chambers of the Federal Appeals Court and the Federal Cassation Chamber. For example, some prosecutors consider that preliminary examinations are necessary before opening investigations while others just initiate the case as it would be any domestic crime. That would be one example. And the other, for example, is that the judge I worked for, he, for instance, considered that in these particular cases, private plaintiffs cannot trigger by themselves investigations without the decision of the prosecutor to investigate. And I agree with this point of view because I think that prosecutors should play this role of gatekeepers when analyzing what the states need to do in terms of resources, in terms of preserving international relations, etc. However, this is not the criteria that the appeals Chamber or the Federal Cassation Chamber might have or other judges might have. So this is the great problem of not having a national law that regulates universal jurisdiction in Argentina, that I think that we should have it as soon as possible. 

Steph: 21:39  So from Maya’s perspective, where she worked with prosecutors, she thinks that they would have more balance, but that overall, the biggest issue is consistency, and that could be fixed by national law, but it seems extremely complicated with very big regional differences. 

Janet: 22:01  Yeah, I think that’s also why she’s pushing hard for a new national law. I didn’t include this, but I was discussing with her also whether it’s via different cases that the law has been built up and she said yes to some degree, but still individual regional prosecutors, this provincial system where it gives a lot of power to the different prosecutors, they can all have their very different approaches. So somebody like Bénédict, who has actually been a representative of some of the victims who’ve been applying, says that his experience is that, and Maia’s right there is a lot of experience in Argentina, but one of the problems is the actual capacity behind that experience is quite limited, and there isn’t a lot of ability to be able to drive cases forward very quickly. 

Bénédict De Moerloose: 22:55  In Argentina, I think that one of the issues is the institutional capacity, the judges who are investigating those cases rely on small teams. They’re conducting the investigations by themselves. They have no judicial police force or specialized units backing them up. So, those cases are usually slow and rely a lot on the organizations and on the victims that provide the information. So that’s one of the hurdles that we see.And then you have also the question of the enforcement of the arrest warrants issued by Argentina. Interpol first is quite reluctant to issue the red notices, which are very important to have international cooperation and finally extraditions. So this is also a difficulty that we are facing. Also, there is a lot of leeway of, the judges are really independent in the way they are conducting the investigations and if they wanna sit on an investigation and they want to progress, it’s very difficult for civil parties victims to actually push or pressly judge to you to act because there are no strict deadlines to this date.

Janet: 24:15  Again, just to give you a perspective from somebody from within the system, Maia says that she thinks that that breadth of experience is actually much more important than throwing a huge amount of resources at it. 

Maia Czarny: 24:31  We have specialized units. In fact, it’s a national procurator on crimes against humanity. But, it assists the prosecutors and judges that carry out the investigations of crimes against humanity across the country. So they’re not the ones, maybe they are, it depends on the case. So it’s very interesting how if you go through the federal criminal system in Argentina, it’s probable that every single federal judge, and federal prosecutor dealt with some kind of investigation related to the crimes against humanity of our last dictatorship.

Steph: 25:07  I just wanna throw back to the other podcast we did about corporate crimes in Argentina. We understood from our interlocutors there that it takes an enormous amount of years to get these cases going because of the kind of lack of institutional capacity. So, it’s interesting to see that reflected back on, in every aspect of this. But of course, I have more questions about this. Universal jurisdiction: the great problem with doing UJ cases, and we’ve seen it in the cases that the Netherlands had about Liberia and and Afghanistan and things like that, is that Argentina’s a very long way away from cases that are the subject of these UJ cases like Myanmar and Iran. So how do they get the evidence? 

Janet: 25:49  Maia was concerned about that kind of, again, taking a bit more of a distant view that Argentina’s becoming the kind of place where they get a lot of evidence in and they’re really, really good at analyzing it. They really understand what it makes to say that something might be potentially a crime against humanity. They really understand those terms: systematic and widespread. But, the cases really do lack field investigations, you know, so they don’t have this evidence from the grounds that they have collected themselves. And the book that I mentioned that she was helping to put together, she said that some of the contributors to that were thinking the same way as her about this issue. 

Maia Czarny: 26:34  It’s crucial to have experts on international crimes and universal jurisdiction. And this is something that some authors Joaquim gonzalez julio, analyze in the book because they wonder, for instance, how to deal with the evidence and how to analyze the evidence because what we are facing right now in the cases that went further and investigations that ended up with arrest warrants, namely Venezuela, Myanmar, Spain, they weren’t based in any kind of field work. They were based on a couple of witness and victims statements and then reports that were filed by NGOs that of course they carry out amazing jobs, but at the same time, they have natural interest in the outcomes of the case. So, I’m hopeful that with the national law and with a system that puts in charge of the prosecutors, that can be experts on these cases, we can have cases that have more legitimacy in terms of seriousness for international criminal justice. 

Janet: 27:44  But just again, to give a different perspective, Ezequiel Jimenez says that he thinks that investigations are actually possible, particularly in this day and age, where you can do things online.

Ezequiel Jimenez: 27:57  We live in a world where evidence can be accessed electronically and you can travel very far and wide very easily. So geography might not be the main one, but it’s still a problem because Argentina is very far from some of where these cases are. Maybe not so much Venezuela as of right now, but if we look at Myanmar, it is.

Steph: 28:15  I mean, he’s not wrong. But again, if I hark back to my experience with seeing UJ cases play out in court, and that mainly is based on Dutch cases, they did send police and investigators to these countries after a lot of lobbying. And, but that also has the kind of, I imagine, bit more filled coffers of the Dutch state behind it and potentially also diplomatic clouds. So. I wonder if Argentina can do all of that. Which kind of launches me into another question about what resources does Argentina kind of set aside for these cases? Are UJ cases a big deal for Argentina? Again, you know, I am very much looking at this with the Dutch glasses, but they kind of put this, um, premium on being this country of peace and justice and celebrating the Hague as the city of justice and therefore kind of putting money and effort in universal jurisdiction cases in the Netherlands. How does that work in Argentina?

Janet: 29:15  Yeah, there’s no actual specialized unit the same way as there is in a place like the Netherlands, but there’s a lot of expertise and as we’ll come to it, it comes in different forms; To start with, here’s, Ezequiel who pointed out to me that this is exactly one of the challenges.

Ezequiel Jimenez: 29:30  The challenges that we have in Argentina for universal jurisdiction begin with resources. You know, at the moment, the jurisdictional regime in which any victim can make a case anywhere in the geography, but involving these very serious crimes. It’s through asking any federal judge to open an investigation, but then we begin with a question of resources. How many of these prosecutorial units or offices actually have the expertise? Maybe let’s not think so much about the talent. Maybe they’re able to very quickly get the grasp of the situation, but the expertise to understand evidence in a context and culture in which they’re not familiar. But also do they have the team to support them in a very lengthy procedure. I would definitely go for different routes of judges asking questions about very specific things that perhaps we don’t have the money to even invest in. And this is at the level of, of evidence, but also the level of stamina. You know, building a case takes time. 

Janet: 30:37  Yeah, but here’s Maia and she says that her experience from within the system, more as she puts it, “the kitchen”, is that there is that kind of expertise and people are, you know, they’re making some very real difficult decisions as to which cases they put their time into, but, but they are doing it.

Maia Czarny: 30:58  This comes maybe from being in the kitchen of my personal experience as I mentioned, the courts and the prosecutors that deal with these cases as well as the domestic cases of crimes against humanity are the complex crimes units, let’s say, as the ones that I worked with at the first stands court under Sebastian Casanello. There, we had to literally split our time between corruption cases or organized crime cases, that I mean we’re a global south countries in which resources are already scars for our own cases, and we had to decide how to split our time between investigating those cases and these other that were hundreds of our thousands of kilometers away. And also you had to be lucky enough to have people that knew how to deal with these cases. Not only in terms of knowing a little bit of international criminal law, but also perhaps regarding the language. So there’s a lot of things that were seen in the kitchen regarding resources.

Janet: 32:07  And again, just to come back, she really stresses that a lot of this would work better if there was a consistent national law on this that would mean that all the different prosecutors would follow the same way of approaching things.

Maia Czarny: 32:21  I would say that Argentina is now standing at a critical juncture in terms of dealing with UJ investigations. We must urgently regulate universal jurisdiction investigations, and I think that this should be under a national law with clear criteria on when the state should carry out these extraterritorial investigations. And Argentina is one of the few Latin American countries that has not enacted any specific regulations in recent years. But it is at the same time, one of the most active countries in the world in exercising it. You will notice there that we all agree that, uh, there’s something missing and that we should be aware about the lessons learned from other countries, let’s say Belgium or Spain, in which they dealt with this proliferation of cases, and then they had to narrow it down kind of urgently because of the diplomatic tensions they were facing. So. Yes. I think that that’s important, and also that we should think about the context of that law. So that would be the first important think that I think that Argentina should be prioritizing. 

Steph: 33:39  Now if we get down to the nuts and bolts of these prosecutions, what are the kinds of crimes that an Argentinian prosecutor can charge? They are members of the ICC. Have they incorporated the Rome Statute? Should we imagine Rome Statute crimes? Are there different crimes in the Argentinian penal code? What are we looking at? 

Janet: 33:58  Yeah, I felt this was a bit technical for me to get into really in depth, but basically, yeah, they’re members of the International Criminal Court. Yes, they’ve absorbed Rome statute, but universal jurisdiction cases are actually using the domestic penal code, so when they come up with things like Crimes Against Humanity, that’s in the domestic penal code, but it’s based on things like murder and torture. I mean, you know, specific crimes which aren’t defined in the same way as under the Rome statute. And one of the reasons why it’s important to acknowledge that is that the application, for example, on Iran that we discussed with Gissou Nia, also included details about alleged gender persecution. And there’s a question, how likely is it that Argentine judges would agree to have that included in the list of crimes? Because it’s actually not in the domestic penal code. So here’s Ben discussing that.

Bénédict De Moerloose: 35:09  In Argentina,the practice of the courts is not in general to apply the crimes as they’re defined in the ICC statutes. They rely on the ordinary crimes in the domestic penal courts such as homicide, lawful detentions, torture, and then they characterize those acts as having been committed as part of crime of crimes against humanity. It could be a, a bit of a, of a challenge in order to frame more innovative prosecutions such as gender prosecution. I don’t want to make this sound like they’re not going to succeed because I want them to succeed. But I think it’s a challenge.

Janet: 35:54  And Ezequiel also says that this issue of gender is a political one. You have to basically strategically decide as the representatives of various forms of victims, as you’re getting your complaint in and as you are trying to build, let’s say, a public messaging or campaigning around it, what it is you’re going to emphasize. So, gender, as you can imagine, as you’ve already described this somewhat right wing government of Javier Milei gender is not the subject that they really want to have discussed in courts.

Ezequiel Jimenez: 36:30  If you go for gender, which I think they should, but then they get the attention of the foreign ministry or whatever Milei is tweeting that night. Yeah. They’re likely to face more barriers to get their case, go through the different hoops of the judicial system. So it is a strategic question rather than a legal one, unfortunately, because it’s how you position your case to be successful in the beginning to long term. I should also mention that your question is pertinent because now in New York, when they were negotiating the first draft of the Crime Scenes Humanity Treaty, Argentina which has a very long history of backing gender apartheid or some sort of gender linked criminality is for the first time in 20 years saying that they will not, and this is the Milei government in action. So it is unfortunate, of course. My recommendation would be to build the case anyway and let the judges decide. But I do understand strategically why the victims group wouldn’t do that, and I cannot, I cannot say that’s wrong. It’s of course, for the, for the ment of the case and for not attracting unnecessary attention from a government that doesn’t believe in climate change, doesn’t believe in gender, doesn’t believe in inequality in general. So, so I, I wouldn’t, I would suspect that to be the root, but hopefully a short term one. He got two more years, and as of right now, he’s likely to be reelected, so probably looking at six years. But, in Argentina, everything depends on the economy. So maybe next week we will talk again. I tell you, he won’t be reelected, so it depends week by week. 

Steph: 37:59  Even with all this political turmoil and uncertainty, Argentina is still a member of the ICC, and we know with Myanmar that the ICC is also investigating it, albeit in a roundabout way. And here is that the thing that the ICC loves more than anything else, this notion of subsidiarity, the ICC is looking at Myanmar, so how does it work with Argentinian universal jurisdiction cases? 

Janet: 38:28  Yeah, subsidiarity is how the Argentine courts approach it, saying if there’s already another court doing it, we don’t. And you know, we’ve got that awful word for us, Steph complementarity, meaning, you know, who’s doing what. What I understand there when it comes to Myanmar itself is that these are very different crimes that are being looked at to. The extent to which though some of the underlying acts, some of the underlying evidence might be similar we don’t know. So Argentina has looked at that though. I mean, I think, if I remember correctly, one level of the court said, “no, we’re not going to go ahead”. And then that was reversed. So this was seen as a tremendous success by the NGOs bringing that case. So they are planning to go ahead. But Ezequiel told me that, you know, the basics that you have to understand is that there’s a memorandum of understanding between Argentina and the international criminal court in the Hague, and then based on that there will be sharing of evidence. Will there be sharing of witnesses? As he explains, it’s not very public.

Ezequiel Jimenez: 39:38 It’s a complementarity agreement in which Argentina and the court, and this is open to other states, it’s not bespoke to Argentina, it’s an MOU standard for other states. I think others have signed it as well, but in which if you ever find yourself in jurisdiction, there is overlap with the court, there are triggers and procedures in which you can work through with the registry and the OTP in this case, to see whether there are elements of collaboration. If you’re talking about two distinct cases, maybe you build them differently, but you’re aware of what those are. Now, the challenge I have with Myanmar in particular is that a lot of this information is confidential. It’s not public. The federal prosecutors in Argentina, and we know this from rumors more than anything else, are coordinating with the court. I cannot tell you how much and in which cases and which accused. All I know is that the victims groups that are represented in Argentina and the ICC are the same. So perhaps we can think about the accused being the same, or at least some of the crimes investigated are the same. But this is not something that, at least in the Argentine court system or prosecution’s office, they will be able to, to put in the public domain. 

Steph: 41:02  That is interesting to know why they have all these memorandums of understanding that they keep bombarding us with, with emails about having signed them.  do recall that complementarity at the ICC is the same person, same conduct standard. So I guess there is some space if you’re looking at different people or slightly different crimes than probably it wouldn’t hit on ICC complement charity. 

Janet: 41:21  Now let’s broaden it out just a bit. I’m now going to get back into politics more fully in the Hague. The International Criminal Court has been sanctioned, not as a court, but many of the individuals, judges, the top people, and the office of the prosecutor, and that brings politics back in. 

Steph: 41:43  I’m glad we’re back in politics because yeah, I did say some things about the Milei government, which I don’t know very much about, so I was very vague about exactly how right wing it was. But I’m sure you and Ezequiel are gonna tell me. 

Janet: 41:56  Yeah, I’m not a specialist on Argentine politics, but I can remember watching Milei wielding his chainsaw shortly after Musk was wielding his. So, you know, it’s basically Trump’s best buddy in Latin America. So that raises questions about whether this cooperation with the international criminal court will actually continue. Here’s Ezequiel.

Ezequiel Jimenez: 42:21  In that context is how at the moment Argentina is cooperating with the ICC. I do say at the moment, because the current government is hostile to the ICC, and perhaps we might see in the next few months a possible withdrawal, or at least a renunciation of, you know, the cooperation regime that Argentina has in place with the court. I don’t think it would be crazy to think that Netanyahu is visiting Javier Milei very soon, and if that is the case, well, and a lot of these things that we’re talking about today, you know, they become a bit of a moot point. 

Janet: 42:53  Okay. That’s my kind of Trump through things. What, do you still have very unclear stuff that we need to do another podcast about? Or is there, there’s some other stuff that you are thinking about? 

Steph: 43:10  Not so really that I have more questions about, but a thread I’d like to pull on is this kind of difference in powers by victims and how they can kind of trigger investigations and trigger court cases in a way that we don’t really see very much with other universal jurisdiction cases.

Janet: 43:24  Yeah, I agree. It’s surprising to me. I mean partly because I come from a common law system and all of this stuff is really weird as far as I’m concerned, all of this terminology. But I agree it’s interesting and there’s, yeah, I will always compare it to the international courts and tribunals where it’s much more difficult for victims to have a sense of what their role is. I think that’s important to explore. But just before we kind of wrap up the whole podcast, I just wanted to add in also one bit from Ezequiel. He said he really wanted to mention not only the international NGOs, the ones that we often talk about, what their plans are to get this case there and to do this, that, and the other. But Argentinian NGOs, and they’re the ones who are really doing a lot of the grunt work and the real engagement with the courts and real engagement with the victims’ communities. 

Ezequiel Jimenez: 44:27  One element that we haven’t touched upon and I think is very important, is the role that civil society plays in Argentina. I think this is a bit underneath some of the analysis because there are very good, important, large international NGOs that do this extremely well. And, and of course, you know, kudos to them. But they are usually likely supported by local expertise, local NGOs that also have an interest in building the capacity of universal jurisdiction. And in many cases, they’re not mentioned because they’re very small. They’re usually two, three people. And I think that’s important that we, we mention them, I’m not gonna mention specific names for the, for the fear of forgetting somebody. But hey are part of the story because they’re the ones who greet victims at the airport. They’re the ones who go with them to the courts. They’re the ones who help facilitate translations and interpretations. They’re the ones who help navigate the very archaic, bureaucratic system, and they’re the ones that give the good news when a telephone rings in the midnight of any, you know, any other location or, or time zone. And, sometimes we forget about them. And I think it’s important to mention that there is a very important ecosystem in Argentina, of NGOs doing this legal, strategic litigation work that might not feature in the big headlines. But they’re there and they do very important work.

Janet: 45:51  Okay. I’ve picked out a couple of comments from my interlocutors for wrapping the podcast up, but just before we get there, some final thoughts on universal jurisdiction? If you think back to how you covered, let’s say, Ukraine or how we’ve covered Iran or how we’ve covered Myanmar, do you think we have different questions that we would ask next time round?

Steph: 46:15  Maybe. I think also because you see the landscape of international justice changing and because of the sanctions against the ICC and the kind of possibility that the ICC is not going to be as effective as it was. And I’m sure there are some people listening to this who are already snickering that it wasn’t very effective to begin with, but it’s probably even gonna be less effective now. Then I think that you should turn to universal jurisdiction, and it may be, you know, before we were also always looking at universal jurisdiction as a place to get to where the ICC can’t reach, and now we are faced with potentially an ICC that can’t reach quite a lot of places or that has to. Scale down or will slow down just because of the political pressure and obstacles that are thrown in his way. And maybe we’ll see even more people turn to universal jurisdiction. So I think this is a very important kind of growing field that we really need to look at. 

Janet: 47:18  Yeah, I think we’ve already declared it’s, this is our year for universal jurisdiction, so kicked it off with Argentina and I know we’ve got a podcast about France that we have planned to come up with month. And then we are just gonna work our way around the world. Steph, do you agree? 

Steph: 47:37  You know, that sounds great. Asking the same questions. I think I will watch this space. Uh, absolutely. 

Janet: 47:41  So before I play those final comments, I really just wanna say thank you to Maia, Ezequiel, and Bénédict for chatting. Of course, all mistakes are mine and if I’ve made any glaring ones, I’m sure somebody will tell me. We have a ton of links that we’ll put into the website if you want some more depth. There is stuff in English for people like me who don’t speak Spanish. So to wrap up, I asked Ezequiel whether he actually sees that the current system in Argentina is going to continue exactly as it is. He says, no, not surprising. As with all of the elements that we’ve mentioned, these new 2024 guidelines are starting to shift the goalposts or the boundaries, and he says that he imagines a universal jurisdiction Argentinian style will continue, but not necessarily at the kind of frenetic pace and the numbers of cases that we have seen so far.

Ezequiel Jimenez: 48:39  Yeah, I think the guidelines came about in the conversation of the Myanmar case in particular. I think the judges and the Prosecutors Association saw that, and, and the ministry in general, they saw that they needed to put some sort of guidelines around these cases because they were probably gonna get bombarded by so many, given that Myanmar was in particular very successful in terms of litigation. And so the guidelines came in 2024. But the specialized unit argument I think is important, but at the same time, that doesn’t take, I mean, it is not in detriment of the capability of a judicial system to investigate these crimes because there is a lot of capacity built by the many trials of crimes against humanity of the last dictatorship. I think there is a lot in there already that can be applied to these international crimes. But they’re not housed in one unit. They’re not housed in one prosecutor’s office. They’re not, you know, interstate, by state, I mean internal to Argentina. They don’t share those practices. But to build a unit, if I put the argument in another way, would be pretty easy. But there is a sense, and this is where your point about politics comes in, that this might not be the moment to do that, or if it’s the moment to do this, what that does mean for the Argentine judicial system. We will have a lot of cases in Argentina. Are we prepared? Do we have the resources, do we have the political background? It’s a bit of a mixed bag, but I don’t think universal jurisdiction is going away. It might be frozen, it might be applied inways that are pick and choose, but I don’t think it’s, it’s going away. 

Janet: 50:21  And finally from Maia. Maia’s now away from Argentina. She’s studying in London at the LSE, and I think that she’s really in that position looking at the book that she co-edited and looking at the conversations that she helped to do with different insiders. She’s really trying to consider how the system is working. And her final question, which I thought was a really useful one to leave everybody with, is. Okay, it might be a very open to victim system, but is it really providing justice? Is it really providing redress for those victims who apply? So I’m gonna leave the last worst on the podcast to Maia and see you soon. Bye Steph. Here is Maia. 

Maia Czarny: 51:04  In the last two or three years, arrest warrants were issued against Nicolas Maduro that is now detained by the US with an extradition petition from Argentina issued a couple of days ago. Then also to an arrest warrant issued against Daniel Ortega and his wife, uh, the president of Nicaragua. More than 20 officials of Myanmar, including the senior general Commander and other investigations are ongoing that were either opened or are under preliminary examination and they are involving China, Palestine, Cuba, Ukraine, Yemen, Colombia, and recently Iran as we discussed among others. However, no case has reached trial. And I think that’s important to take into account when we are thinking what the prospects are for Argentina because we should think about what the prospect of success is, right? This is, I think this is a great debate in international criminal justice. If an arrest warrant means something or we need the trial. or what do we need Just to say that if you are enjoying this.

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This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net,  an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.