The request from Human Rights Watch for an Argentine judge to look into potential crimes against humanity committed by Saudi Crown Prince Mohamed Bin Salman has already provided the G20 Leaders Summit with its first political (and literally palace) intrigue, even before it formally begins.
The advocacy group based its inquiry on allegations of war crimes during the Saudi-led military intervention in Yemen, as well as the murder of journalist Jamal Kashoggi in the country’s consulate in Istanbul, which the CIA concluded he ordered.
The request will have to be reviewed by both Federal Prosecutor Ramiro González and Judge Ariel Lijo, who will determine whether the evidence merits basing an investigation on the principle of universal jurisdiction.
In an interview with TN, Human Rights Watch lawyer Reed Brody had assured that, should the prosecutor and the judge conclude that Bin Salman is guilty of crimes against humanity before he leaves Argentine soil, they could successfully arrest him because he does not enjoy the immunity of a head of state. Brody clarified that Bin Salman is technically Saudi Arabia’s Minister of Defense, and not the head of state. “He is the de facto head of state. Therefore, he does not enjoy that immunity,” he said.
“[G20] does not exempt the Argentine authorities from their responsibilities. If they don’t arrest him, they can at least investigate him for his role in the assassination of Jamal Khashoggi,” Brody added.
Speaking with The Bubble, however, an official working at the office led by Prosecutor Ramiro González said that, at the present time, “no warrant [had] been issued.” Moreover, the official explained that “the accusation is going through the standard procedures,” and explained that reviewing it will probably take longer than the Crown Prince’s stay in Argentina.
This was effectively the case. Shortly after noon, Prosecutor González formally asked Judge Ariel Lijo to “determine the status of prince Mohamed Bin Salman and the existence of ongoing cases in the Kingdom of Saudi Arabia and the Republic of Yemen,” before deciding whether to open a formal investigation in Argentina.
If the Saudi prince is not currently facing any cases against him, Judge Lijo could, in theory, open an investigation. However, if the judge sends the requests to Saudi Arabia and Yemen, they will take a long time to make their way to these countries, and it will be an even longer while before any response arrives back in Argentina. It seems safe to conclude that even if the judge receives an answer from his counterparts, the case could take years to unfold.
So, how could the process continue, then? If Judge Lijo decides to move forward with the investigation and in the future – i.e. after Bin Salman leaves Argentina – reaches the conclusion that the prince is guilty, he could issue an international arrest warrant.
However, there is precedent suggesting that this would most likely not have any tangible effects. In July of this year, the Chinese and Russian governments avoided responding to an Argentine request to extradite a high-ranking Iranian official, who stands accused of being involved in the 1994 AMIA Jewish center bombing, when he visited both countries in an official capacity.
- Read More: Russia, China Avoid Extraditing High-Ranking Iranian Official Accused of Involvement in AMIA Bombing
The event in Russia was more significant: authorities failed to reply before the official left the country even though there is a standing bilateral agreement of extradition between Argentina and Russia. There is no such treaty between Argentina and China. The Argentine government had already made similar attempts last year, when the Iranian official traveled to Singapore, Malaysia, and Lebanon; all of them were unfruitful.
As for the principle of universal jurisdiction, Argentina has previously been involved in different cases in which it was applied, however, in most, it was on the receiving end. During the period in which the 1987 amnesty laws – known as “obediencia debida” and “punto final” – protected officials in Argentine jurisdiction who took part in crimes against humanity during the last dictatorship, Spanish Judge Baltazar Garzón, then head of the Spanish Audiencia Nacional, tried Argentine repressor Adolfo Scilingo and sentenced him to 640 years in prison.
Garzón was also the judge who, in 1998, issued an arrest warrant against Chilean dictator Augusto Pinochet, who was in London at the time to undergo surgery. The British House of Lords determined Pinochet could only be extradited for alleged crimes of torture and conspiracy, and approved the request. But after a legal battle, Home Secretary Jack Straw decided to release Pinochet in the year 2000, arguing he could not stand trial due to his precarious health. Pinochet then returned to Chile, where he was sentenced and acquitted in numerous cases before his death in 2006.
There is only one case in Argentine history where a judge used the principle of universal jurisdiction. In 2010, Federal Judge María Servini de Cubría decided to investigate crimes against humanity committed during the Franco era in Spain. The case had in fact been initiated by Judge Garzón in Spain, but he was prevented from moving forward with it after being accused of knowingly undertaking an investigation that could never be legally concluded given the fact that, in 1977, Spanish authorities granted amnesty to those who committed crimes in the name of the political dictatorship that spanned for over 40 years.
Servini de Cubría issued international arrest warrants against four people in 2013, but a Spanish counterpart, Pablo Ruiz, did not take precautionary measures (medidas cautelares) to ensure their detention.
In January 2014, the Spanish Audiencia Nacional opposed the extradition of the alleged criminals. The country’s prosecutor’s office also refused to respect the decision, arguing that Spain had priority when it came to investigating the events. Later that year the Argentine judge issued arrest warrants against 20 alleged criminals and requested their detention through Interpol. Spain, however, announced once again that it would not comply with the decision because Interpol’s orders were not binding.
Despite its difficulties, the current investigation in Argentina is still on course. However, precedent shows that if there is no willingness from the country in which the accused are, the chances of extraditing them and applying the principle of universal jurisdiction are slim to none.