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Ukrainian Victim Initiates Legal Action Against Russians — in Argentinian Court

By T. Evan Eosten Fisher, Esq. | Last updated on

A Ukrainian man, who uses the pseudonym “Mr. M” to protect his identity, has filed a complaint against the Russians who allegedly tortured him and another person who facilitated the international war crime. Although Ukrainian authorities have opened investigations and prosecutions of Russian war criminals since the 2022 invasion, this case is garnering attention because it was filed in Argentina.

Argentina’s modern legal system allows prosecutions for certain egregious crimes regardless of where they occur, based on the concept of universal jurisdiction. Now that Mr. M has put the complaint in the hands of Argentinian prosecutors, they will determine whether to move forward with the case.

Allegations of Torture at the Hands of Russians

Mr. M’s allegations detail nightmarish events. His seventy-page legal complaint describes how he was detained from work before being tortured by his captors. Supported by testimony from others held prisoner at the same Russian site and expert findings from the United Nations, Mr. M alleges that his captors forced up to twenty prisoners to share a tiny cell of just ten square meters. In what seems like a scene from a horror movie, Mr. M also alleges that his abusers attached electrical cables to his finger and his ear to subject him to electrical shocks.

An attorney for Mr. M explains that he was held, questioned, and tortured for nearly three weeks before he was released without any formal charges. Mr. M calls himself one of the lucky ones, considering himself fortunate to have survived and noting that others imprisoned with him were not released. After his ordeal, Mr. M escaped to an unoccupied portion of Ukraine and eventually made a new home in Argentina, far from the horrors of the war.

Sadly, Mr. M’s story is not unique. A U.N. Commission found that Russian invaders have committed widespread torture and other abuses since the beginning of the war. Ukrainian authorities have gathered information related to over 125,000 victims of Russian war criminals. Mr. M might be the first victim to see his case go forward in Argentina, however, by taking advantage of the country’s universal jurisdiction statute.

The Case for Universal Jurisdiction

An overwhelming number of crimes are prosecuted in the places where they occur under a concept known as territorial jurisdiction. For example, most criminal prosecutions in the United States take place in state courts, usually in the courthouse of the county or judicial district where the alleged criminal acts took place. Universal jurisdiction, on the other hand, is the concept of allowing a domestic judicial system to investigate and prosecute certain crimes regardless of where they occurred or who was involved.

As a legal concept, universal jurisdiction gained acceptance after World War II, with the ratification of the Geneva Conventions that govern the laws of war. It is invoked only for the most serious crimes, such as genocide, war crimes, piracy, terrorism, and torture – crimes that are otherwise difficult to prosecute. Although some of these crimes are also subject to investigation and prosecution by the International Criminal Court in the Hague, prosecution of universal jurisdiction cases in national courts can reach events otherwise beyond the ICC’s grasp.

In Argentina, where Mr. M has filed his complaint, universal jurisdiction was recently used to investigate and prosecute alleged war crimes perpetrated by military officials in Myanmar against the minority Rohingya population. Argentina’s universal jurisdiction over these types of crimes is enshrined in its 1994 Constitution, which reflected a renewed commitment to respecting humanitarian law and human rights after the country’s “Dirty War” era ended with the restoration of democracy in 1983.

Critics of universal jurisdiction complain that it leads to international interference in purely domestic matters. The ICC itself often receives criticism from powerful UN nations like the United States and Russia, which maintain that the international prosecutor lacks jurisdiction over their nationals. Other critics complain that universal jurisdiction is impractical and ineffective. Targets of international prosecutions often remain at large for years without facing justice, like former Sudanese president Omar al-Bashir, whose rule continued for about a decade after he was indicted by the ICC.

Still, the practical consequences of universal jurisdiction prosecutions cannot be entirely denied. Indictments for international crimes can effectively restrict the travel of the accused, as they must avoid countries with extradition treaties with the indicting nation. Only the most powerful leaders can avoid prosecutions indefinitely; even then, they are vulnerable after a regime change. Even al-Bashir now seems likely to face justice at the Hague. For the perpetrators named by Mr. M, an indictment in Argentina might prove to be a major inconvenience.

Potential Impact of the Landmark Case  

The case of Mr. M is still in its earliest stages, but the unusual legal maneuver could encourage other Ukrainians who have sought refuge abroad to bring their own stories forward to governments with universal jurisdiction statutes. Some may never achieve justice, and most prosecutions will have trouble moving forward while the war continues to ravage Ukraine.

International humanitarian law often seems like a poor remedy to an ageless problem, but it does provide a better alternative to the prior governing principle of “might makes right.” Mr. M and others who have suffered in Ukraine would undoubtedly prefer delayed justice to denied justice.

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