War Crimes

Episode Notes

Transcript

J. Craig Williams: Before we begin today’s show, we want to thank our sponsor, Posh virtual Receptionists.

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Jonathan Hafetz: Putin in some ways will be, it’ll be less of a challenge in terms of it. Clearly, he’s at the top. He’s clearly was responsible for initiating the war of aggression, but how far down and what other leaders would be held responsible would be a primary focus of the evidence. I mean, who else is responsible for initiating, planning, executing this war and has a sufficient degree of control that they could be held responsible for the crime of aggression?

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named “May it Please the Court” and have two books out titled “How to Get Sued in a Sled.”  A war crime is defined as a violation of the laws or customs of war as established by international customary laws and treaties.

On February 24, 2022, Russia invaded Ukraine, pushing for control in the east and south of Ukraine. Days later, on February 28, Karim Khan, the international criminal court’s chief prosecutor, said he had opened the war crimes investigation following this invasion.

And on April 4, President Biden called for the prosecution of Russian President Vladimir Putin for war crimes over the discovery in Bucha, Ukraine of mass graves and bodies bound of civilians shot at close range. So, will President Putin be charged with war crimes and what would that mean?

Today on this episode of Lawyer 2 Lawyer, we’ll discuss the Ukrainian-Russia War and what constitutes a war crime, the potential war crime charges against Putin and his associates. And to do that, our guest today is Professor Jonathan Hafetz. He’s an expert on constitutional law, national security, international criminal law and transnational justice, from Seton Hall Law School. Professor Hafetz is also an internationally recognized Constitutional and Human Rights Lawyer. Prior to joining Seton Hall, he was a Senior Attorney at the American Civil Liberties Union, a Litigation Director at New York University’s Brennan Center for Justice and at John J. Gibbons Fellow in Public Interest & Constitutional Law at Gibbons PC. Welcome to the show, Jonathan.

Jonathan Hafetz: Hi. Thank you. Great to be here, Craig.

J. Craig Williams: This is absolutely horrific thing to be talking about and I’m sure a sensitive issue for a lot of people, but let’s get your generalized thoughts about the Russia-Ukraine War and how it got started, and what the prospects are as we look forward.

Jonathan Hafetz: Well, the war began from all reports and it seems very clear by Russia’s invasion of Ukraine. It breached its territorial sovereignty and launched what was called an international law war of aggression that violates international treaties and customary international law basics, essentially the practices that nations engage in and are bound by.

In addition to the invasion which has been going on now was that like February, we have the commission of individual war crimes within Ukraine. That is what seems to be the indiscriminate acts against civilians through bombings and possibly also deliberately charging civilians. And so, we’ve seen this type of death and destruction that we read about and these have legal implications because these are violations of war crimes.

War crimes just essentially, in a nutshell, are when nations engage in armed conflict. They’re bound by certain rules, certain basic rules and it’s a little bit strange because war itself allows for legalized killing, but that’s of individuals who were combatants, individuals who are fighting. So, the laws of war seek above all to protect civilians, people who are not engaged in combat or fighting from unnecessary death and destruction. And this Russia has seemingly breached these principles by exposing civilians, either deliberately or recklessly to death and destruction due to violence that is unnecessary for military objectives.

J. Craig Williams: You know, it seems like the first point in almost all kind of procedural discussions, if this is one, where does jurisdiction lie for these war crimes?

Jonathan Hafetz: Well, I think there are multiple places where there could be jurisdiction. There’s the International Criminal Court, which was set up through a treaty in 1998, went into effect in 2001 called the Rome statute which has jurisdiction over war crimes.

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Now, that’s one area. The other area are domestic courts. Some individual’s countries courts have jurisdiction over war crimes. They can punish war crime certainly committed on their territories like Ukraine, but they also have statutes that provide for what’s called universal jurisdiction. That is, they can punish crimes unit. There’s no connection to those countries or their citizens, just by virtue of the universal nature of the crime. It’s such an elevated horrific crime that they can exercise jurisdiction.

So, those are two current places where jurisdiction can be exercised. There’s also discussion of creating a new tribunal that would be designed to address the specific conflict between Russia and Ukraine, and war crimes and other international crimes that may be committed in that conflict. One of the issues is that the international criminal court is limited in several respects. First of all, not every nation has joined the court and two of the notable outliers — well, a few of the notable outliers are Russia, the United States, as well as China. So, in this case, Russia is at the center of the conflict and so they’ve not joined the ICC, the International Criminal Court.

Ukraine had not joined the court, but has accepted its jurisdiction going back to 2014. So, the problem is that Russia is not a member and has not accepted the jurisdiction of the International Criminal Court. So, legally, there are like two issues here. First is, can the International Criminal Court exercise jurisdiction over Russian war crimes? And if so, under what circumstances and which crimes? And so, under the Rome statute, the court can exercise jurisdiction over individuals from non-member states like Russia if the crimes are committed on the territory of a member state or state that’s accepted its jurisdiction. So, in this case, the ICC could potentially exercise jurisdiction over war crimes as well as crimes against humanity, another ICC crime that were committed on the territory of Ukraine.

However, the ICC, under no circumstances, really is going to be able to exercise jurisdiction over another crime and that’s the crime of aggression. This again is the sort of paramount crime, it’s the apex crime that deals with the initiation of the war itself, the planning and execution of an invasion of another country. And so, while the ICC could exercise jurisdiction over war crimes committed by Russian forces on Ukraine, it’s not going to be able to exercise jurisdiction over Putin or other Russian leaders who planned and executed the war itself because the ICC has not signed on to the Rome statute, and the crime of aggression is subject to its own jurisdictional regime, its own regime which does not allow it to exercise jurisdiction over a country that is not a party to the treaty.

So, those are the legal issues around jurisdiction, which is one reason why a number of people have called for the creation of a separate tribunal designed for these particular conflicts that would be empowered to create or exercise jurisdiction over the crime of aggression, potentially the crime of starting the war. Now, there are a whole host of practical considerations as well, but those are the main legal issues surrounding jurisdiction.

J. Craig Williams:  Right. How does the Hague Convention fit into this situation?

Jonathan Hafetz: Well, that also is a part of the laws of war and so that’s treaty and customary international law particularly in terms of the protections of civilians and also the use of certain weapons that may have been used. So, this could be another basis for charging war crimes against Russian forces. Again, not for what’s happened in Ukraine. So, this is another level of a layer or source of international criminal law that would be relevant to any prosecution. You have the Hague Conventions, Geneva Conventions of 1949, as well as customary international law. So, there’s a long body of law that would be drawn on by a tribunal in terms of prosecuting Russian forces for crimes that they committed.

Now, in theory, if Ukraine forces also committed war crimes in this conflict, there’s been some mention of that could be subject to the jurisdiction of a tribunal as well, but Most of the reporting that I’ve seen so far has focused on the crimes that have been committed by Russian forces at Bucha and elsewhere in Ukraine.

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J. Craig Williams: Since Russia is a member of the United Nations, does it have any jurisdiction to do anything here? I mean, they removed Russia from the Human Rights Committee and that’s all I’ve read about so far.

Jonathan Hafetz: Yeah, it’s good you bring up the United Nations. It’s one thing. It’s very important. The UN is relevant in a few respects. So, Russia is a member of United Nations of course, also a permanent member of the Security Council which gives it a veto power over actions by the Security Council. So, this is important in a few respects, mainly as a barrier to any type of accountability mechanism that would have UN authorization.

So, the one area where the Russian crime of aggression could go before the ICC is if it was through a UN Security Council resolution. So, if the UN Security Council, including the five permanent members, United States, Russia, China, France, and England, all approved of the authorization, they would all have to support it. But that’s essentially not going to happen under any foreseeable circumstances while Putin still in power because Russia will block any action by the Security Council to give the ICC jurisdiction over the crime of aggression.

The UN Security Council could also and has authorized other types of tribunals. So, in the former Yugoslavia and Rwanda, the UN Security Council created its tribunals to address the atrocities committed in those countries and regions. It exercises powers under Chapter 7 for protection of peace and security to create these tribunals and these were very important tribunals that were created in the mid-90s.

So, in theory, even without the ICC, the UN Security Council could create or authorize a tribunal, special tribunal for Ukraine to address a range of crimes, war crimes, crimes against humanity, as well as crime of aggression, but the problem is that Russia as a permanent member will certainly block any action by the UN Security Council. So, the UN Security Council is sidelines in significant respects in terms of creation of a war crimes tribunal.

Now, it can take some actions. The UN can take actions like removing Russia from the Human Rights Council, but those are not going to produce accountability for war crimes.

J. Craig Williams: You know, I’m no un constitutionalist, but it seems like that’s a huge omission that like there’s an automatic conflict of interest about Russia being able to veto its investigation into itself.

Jonathan Hafetz: Yeah, it’s really a conflict of interest and it’s essentially the international legal system around the UN builds in this influence of these great powers, these powers that were victorious after World War II. And so, in some large sense, the post-World War II International Legal Order accepted that such a thing really exists is dependent on the kind of behavior of the five permanent members of the Security Council and the leadership, but this not the first time that there have been problems along these lines.

I should say, you know, I mean the US very controversially invaded Iraq in 2003. Many international law scholars and experts believe this was a violation of the UN charter as well. So, it’s not the first time it’s happened. It’s just probably one of the most dramatic times and it’s in the center of Europe.

J. Craig Williams: So, we have no right to complain?

Jonathan Hafetz: I think it’s important to complain, but I think it does, you know, the fact that the US as well as other countries have done this before undercuts the consistency of the of the complaints, but it doesn’t mean that it’s not valid to call out aggression when it exists.

J. Craig Williams: Let’s take a look back at what happened in Yugoslavia with Slobodan Milosevic and his extradition and then trial, or lack of a trial, I guess, because he died in prison.

Jonathan Hafetz: This is the ICTY, the former Yugoslav Tribunal, which was created in the mid-90s to address war crimes, crimes against humanity, as well as genocide, another core international crime in the former Yugoslavia which broke up after the fall of the Soviet Union and there was a war between Serbia, Croatia, Bosnia, Herzegovina and other former parts of this empire in which Serbia was largely than not exclusively the aggressor.

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And so, basically the UN created this tribunal to address international crimes that were committed during the conflict. And now, the tribunal was created as the conflict was going on and for many years, it was very difficult for the ICTY, the former Yugoslav Tribunal to get custody over individuals and especially over high-level individuals like Milosevic or Radovan Karadzic. All of whom were eventually brought before the ICTY, but initially it was really — you know, the first years of the tribunal, it was really low-level individuals who were brought before the court and prosecuted there.

So, you know, essentially what happened is the political situation changed internally in Serbia as well as in Croatia were made possible situation where high-level individuals were brought before the court. It’s really kind of a long game in that sense and that a nation that’s fighting a war is not going to subject or hand over its high-level officials to an international tribunal and so it has to essentially any kind of — you know, accountability in that sense has to follow usually peace and then some kind of a situation where the country is willing to — there’s a shift so that a country is willing to turn over its former leaders who are responsible for waging war and committing war crimes and other grave crimes to the jurisdiction of an international tribunal. And I think in Russia, that certainly not happening in the foreseeable future, although it’s not clear that that won’t happen ever.

I think another very relevant historical marker is the Nuremberg Trials after World War II, which are really the start of modern international criminal law, one of the most famous and celebrated trials in this area in which the Allied Powers traded tribunal to hold accountable Nazi leaders for their war of aggression and for the horrific crimes that were committed against civilians, Jews and others during the conflict.

And this was really possible because the Nazis had been completely defeated. There was an unconditional surrender and so the Nuremberg Tribunal and the Allied Powers had complete control over the situation. That type of model seems very unlikely with respect to Russia, you know, given Russia’s nuclear power. I think you’re not going to want a situation where there’s a — an unconditional surrender like that is not foreseeable given the current military situation, the fact that Russia is a nuclear power and the amount of death and destruction you got to go through to get to that point.

J. Craig Williams: At this point, we need to take a quick break to hear a word from our sponsor. We’ll be right back and talk a little bit further about the Nuremberg Trials.

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J. Craig Williams: Welcome back to Lawyer 2 Layer on the Legal Talk Network. I’m joined by Professor Jonathan Hafetz. He’s an expert on constitutional law, national security, international criminal law and transnational justice from Seton Hall Law. We’ve been discussing war crimes and in particular, right before the break, we were talking about the parallels, if any, that may exist between the current situation and the Nuremberg trials. Anything we can draw from them that’s usable here, Jonathan?

Jonathan Hafetz: So, the Nuremberg trials offer, I think, important lessons but also important reminders of some limitations of international criminal law. The Nuremberg trials were made possible because there was a complete surrender of Nazi Germany, and the Allies had full control over the territory and were able to impose essentially their will.

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What’s important about Nuremberg is that what the Allies did after World War II was over was not to simply execute the Nazi leadership which is something that was proposed by Churchill and others that they should just be brought before a firing squad. But instead, to create an international criminal trial to hold them to account, document their crimes and sort of demonstrate the victory of law over power or former lead US Prosecutor Associate Supreme Court Justice Robert Jackson said, this was an unprecedent tribute that power paid to reason. They were going to subject the Nazi leadership to a legal process and hold them accountable in a legal setting through a fair trial.

That kind of aspiration has continued through this day through other conflicts, the genocide in Rwanda, the war in former Yugoslavia as well as other matters and that was continuing to the present with Russia where there’s a goal to hold Russia accountable, but not to do it through by seeking revenge for the war crimes, the invasion by subjecting the individuals to the leaders and others responsible to a legal process to trial, to have evidence put on and subject them to legal standards, the legal standards of international criminal law. And if proven guilty, to impose legal consequences.

So, Nuremberg is kind of the ultimate overarching precedent for doing this and it’s important in that respect and kind of shows how far the international legal system has come in the sense that this is sort of how nations view the goal. The goal is what? The goal is ending the conflict, but the goal after is not simply to punish the aggressor and not to take the aggressor before a firing squad or something along those lines that was proposed after World War II, but to use the law and this legal process of international law to impose legal accountability. So, that’s sort of a key overall present of Nuremberg, but the limitation which Nuremberg also suggests is that this was only possible after World War II because of the complete and unconditional surrender of Nazi Germany.

Absent that type of end of the conflict and that type of ability to impose control, it would have been very difficult to have a Nuremberg Tribunal. And so, with Russia, at some point, there will be a choice between the trade-offs between some kind of diplomatic political settlement and pushing on to try to impose a legal responsibility. So, it’s hard to see a true Nuremberg moment here unless there is some very significant regime change in Russia.

J. Craig Williams: What’s the burden of proof that’s required in the International Criminal Court and how do prosecutors go about gathering the evidence to be able to meet that burden of proof?

Jonathan Hafetz: Well, the prosecutors are already looking and investigating to try to gather evidence. I mean, this is a very big challenge. They have the burden of proof in international tribunals. I mean, it depends on the tribunal of what the burden of proof is going to be. They can have differing ones, but the ICC has a beyond the reasonable doubt standard. So, that’s the generally accepted standard, generally used standard is the highest standard in criminal law and so to require a proof beyond a reasonable doubt because the international criminal law, its legitimacy rests partly on the fairness of the trial.

So, you have to have — if the trials are viewed as show trials, they’re not going to be viewed as legitimate and this sort of undermines the whole exercise. So, you had this high standard of proof, you have impartiality of judges and you have a whole range of other procedural protections that would be familiar from a US domestic constitutional system in terms of the — for a defendant to put on evidence to examine documents and witnesses. So, there are significant procedural protections including but not limited to the burden of proof standard at the ICC and at other recent international criminal tribunals.

But there also unique challenges that are posed by applying international trials and conducting international trials in an area where there’s a war and especially in Ukraine where there’s an ongoing war with identifying witnesses, collecting evidence, preserving evidence. I mean, these are all significant challenges. There’s been a lot of experience that’s been learned over past tribunals from the Yugoslavia Tribunal, Rwanda Tribunal, as well as other tribunals in the Sierra Leone and other tribunals that have been set up over the past 20, 30 years.

(00:25:06)

So, there’s been a lot of experience gathered by prosecutors and investigators in terms of preserving evidence. One other thing which really came to light in Syria and the conflict there and is now very evident, Ukraine is the evidence that’s provided or made possible by iPhone social media and the like. And so, there’s a tremendous amount of evidence that is out there, but it’s a question of identifying it, collecting it, preserving it, ensuring its reliability, but that’s a process that’s going on now even before there’s any trial plans, even when there’s only an investigation at the ICC and only proposals for a special tribunal for Russian aggression.

J. Craig Williams: Let’s assume that there’s some type of regime change in Russia and it turns out that it’s possible to reach Putin. How do you find the evidence to put his responsibilities at his feet?

Jonathan Hafetz: Gosh! This is another area and type of evidence which is to try to prove a leadership crime of aggression. Well, I mean, there will certainly be any kind of documentary evidence, orders given, but you would also look at statements that would be made by Russia. You would look at circumstantial evidence surrounding the invasion and I think Putin in some ways will be, it would be less of a challenge in terms of it because clearly, he’s at the top. He’s clearly was responsible for initiating the war of aggression, but how far down and what other leaders would be held responsible would be a primary focus of the evidence.

I mean, who else is responsible for initiating, planning, executing this war and has a sufficient degree of control that they could be held responsible for the crime of aggression?

That’s the aggression part then there’s the individual war crimes or crimes against humanities that are committed within the conflict and who’s held responsible for those? There’s a principle of supervisory responsibility or command responsibility under international criminal law in which it’s not simply the soldier who executes civilians who’s potentially liable. It’s also those who either certainly ordered it or who knew about it, or should have known and disregarded, recklessly disregarded this risk. So, if you knew or should have known about an execution of civilians or bombing of a hospital and you allowed it to go forward and took no action after, you can be held responsible for that crime under principles of supervisory liability. So, that’s another important aspect of who’s going to be held responsible and that’s one where the evidence will be important in terms of who beyond the actual person who physically carried out the war crime, it could be subjected to prosecution.

J. Craig Williams: If it turns out that Putin is not reachable and neither are his generals or colonels or majors, can they be tried in absentia?

Jonathan Hafetz: Not under the ICC statute. That doesn’t allow for in absentia trials. There’s some argument among some who believe that the human rights law would allow in absentia trials under limited circumstances. There is one international tribunal, at least one that does allow for at the tribunal for the performer of crimes. Terrorism committed in Lebanon allows for in absentia trials with safeguards, but I think it’s problematic. In absentia trials are very problematic from a due process point of view and they’re problematic from a legitimacy point of view.

I think any trial where the defendant is not there, especially a trial of this significance is going to face kind of questions and a lot of uncertainties around it. So, it’s not possible under the Rome statute. It could be possible under a newly-created tribunal, but it’s far from ideal. So, I think, if you want to have a tribunal that’s enduring as a legacy and enduring as a symbol of accountability, the defendant has got to be in the dock. They were in the docket Nuremberg and I think that in any really successful international criminal tribunal, the defendant has to be there in the courtroom or it’s just not going to have the same meaning.

J. Craig Williams: Right, certainly. Well, Jonathan, it looks like we’ve just about reached the end of our program. So, it’s time to invite you to share your final thoughts and provide your contact information if our listeners want to reach out to you.

Jonathan Hafetz: I thik the Russia invasion and reported war crimes and other international crimes committed in the Ukraine poses a tremendous opportunity as well as a challenge for international criminal law. It’s an important opportunity because it raises or creates the possibility for international criminal law to show its role in preserving the international legal order and to holding individuals accountable —

(00:30:07)

— criminally accountable when they breach the sovereignty of another nation, unleash a horrific war and kill thousands or tens of thousands of individuals. At the same time, it creates a challenge for international criminal law because it shows or highlights its potential limitations and its dependence on power realities in order for these goals to be achieved.

There’s been a clear violation, multiple violation of international criminal law, but whether and when there’ll be accountability remains uncertain. So, it’s really one of the most important moments for international criminal war and war crimes, and principles of accountability in modern history.

J. Craig Williams: So, as we wrap up, I’d like to thank our guest, Professor Jonathan Hafetz from Seton Hall Law. Jonathan, it was a pleasure having you on the show again today.

Jonathan Hafetz: It was a great opportunity to join you, Craig. Thanks for having me on.

J. Craig Williams: We’ve all seen the horrific images on the videos that Professor Hafetz cited in the discussion and it’s hard to believe that there can’t be punishment for that. But it seems as if the problem goes back even further than just this war. It goes back to the beginning of the nuclear age. Once those powers got distributed among big powers in the world, the balance was tipped in those individual favors. So, it’s going to be almost impossible to publish Putin unless we deal with that risk of nuclear destruction, and I don’t think that’s one we want to deal with. This is a tough situation and I don’t know the solution.

Well, if you like what you heard today, please write us on Apple Podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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