Could Putin Face Prosecution as a War Criminal?

apartment buildings, maternity wards, hospitals. But Biden did not use the words war criminal to describe Putin until lass Wednesday, talking to reporters after a White House Events work. At first, the White House tried to walk back those words, but then Secretary of State Anthony B. Lincoln doubled down. Yesterday, President Biden said that, in his opinion, war cry have

been committed in Ukraine. Personally, I agree, joining me as Katon McIntosh executive director of the Promise Institute for Human Rights at u c l A law school. She's held many roles in international criminal tribunals. The term war crimes is often used colloquially, what does it mean legally? Speaking?

So legally, a war crime is a serious violation of the laws of war, So a serious violation of the rules that are set out in the Geneva Conventions, for example, about how war should be fought, and not every violation of those rules is a war crime. Had to be a serious violation. War criminal is a loaded label. When President Biden first said it, there was immediate backtracking by the White House. It seems like now they're coming around to that label for Vladimir Putin. How many people have

actually been convicted of being a war criminal? Well, hundreds, hundreds have been convicted of being a war criminal. I mean, as you can imagine, the rules of war are violated during our conflict, and as I said, when that's really serious, when we're talking about things like direct targeting a civilians,

that is a war crime. And they have happily been quite a few prosecutions specifically around some recent conflicts in the nineties, for example, so apart from the prosecutions after World War Two, the Nuremberg and Tokyo tribunals, which was really when we saw the first major wave of prosecutions

for war crimes. It was in the nineteen nineties with the tribunals that were set up to deal with the war in the former Yugoslavia, and with the war and genocide in Rwanda that started to prosecute these international crimes, and so since then we've actually seen hundreds of people be prosecuted for these What has to be proven to prosecute someone like Vladimir Putin? Do you have to show that his actions were intentional? What has to be shown

you do? And I think that is the reason for the slight hesitancy in declaring that he is a war criminal before any proper investigation has taken place, and just based on reports of what we've seen occurring actually on the ground. Because intentionally directing military attacks against the civilian population or civilian targets like hospitals or the art school that we saw recently or a museum, that would be

a war crime. But the fact that these targets are hit during a conflict does not necessarily mean they were intentionally targeted. So it would be possible, I mean, frankly, this seems unlikely in the kind of situation we've seen reported in Ukraine. It would be possible for a legitimate target to be targeted and for there to be incidental or what we often hear of referred to as collateral damage, which actually wouldn't be a war crime as long as

it wasn't completely out of whacking, completely disproportionate. So I think that's the hesitancy. So in order to find Vladimi, Cruity or anybody else guilty of a war crime, it would have to be established that they intended, directed, or gave orders to the effect that something like civilians should be targeted, hospitals should be targeted, and Mariople actually is another example, because besieging a city or trying to inflict

starvation on a civilian population is another war crime. So where that can be tied back to specific orders and direction, then a war crime is proved. That sounds like you would need someone on the inside who Putin is giving orders to, or who overheard what Putin was saying. It

could come down to that. I mean, I've worked at the Yugoslavia War Crimes cribuneral and also the Rwanda tribunals, so I've seen these cases, and in some cases it did rely on intersepts or inside a witnesses to establish a chain of command, but the threshold is not necessarily that high. There's also legally a possibility that intention can be inferred, right, if it's so obvious from the situation that there's no way anything else, any other intention could

be inferred than that that instruction had been given. So, for example, if there is an attack on a hospital and there's nothing in the vicinity that could be in a legitimate military objective, there's no allegation that the hospital was being used as some kind of military headquarters, then we can infer that there was a deliberate intention to

attack that hospital. The Chief Prosecutor at the International Criminal Court said on February that, based on a preliminary assessment by his office conducted mostly in there's a reasonable basis to believe that both alleged war crimes and crimes against

humanity have been committed in Ukraine. What is he referring to, because the recent invasion just started, you know, a month ago, right, Well, the officer, the prosecutor has actually been carrying out what they call a preliminary examination, so the examination they carry out before opening a proper investigation, since two thousand and fourteen.

And people have been upsets that that has taken so long, and that it took the prosecutor until just we to need to come out and make some kind of statement about that. So here we're talking about the earlier invasion of Crimea and the acts in Ukraine in two thousand and fourteen. So when the prosecutor talks about possible war crimes and crimes against humanity, he's talking about what has happened back then and since then. He's actually not talking

about what's happening now. But once he is seized of his situations there, once an investigation is open, he is free to to investigate anything with going on in that situation, So that includes current events. Takes years for these investigations. Is it because it's so difficult or because different countries are involved. That's a very good question. I mean we alluded earlier to the kind of evidence that you need

to go up the chain of command. The International Criminal Court in particular is charged with investigating and prosecuting those most responsible, so they will be looking to people at the top of the chain of command, like putting himself

in his close circle, perhaps generals and so on. In the Russian millet tree, it's a lot easier to prove a war crime by the person that actually launched the missile, right, But building that chain of command up to the top can be complex, you know, it can need to rely on things like insider witnesses, intersects, and so on. So

that can be one reason why it takes time. Quite frankly, another reason why it's taking so long at the International Criminal Court, and I think ten years to decide on whether or not it looks like crimes were committed in two thousand fourteen, is, by anybody's reckoning, a very long time. Is quite simply resources. So the International Criminal Court is examining situations all over the world. It does not have

extensive resources. In fact, I heard somebody who's aware of the team that's prosecuting and investigating the two thousand and fourteen events in Ukraine say that the team had one Ukrainian speaker and one Russian speaker. So, you know, in order for the officer, the prosecutor who deals with crimes all over the world, to really accelerate investigations in this situation, which I think we all think would be a good thing, they're going to need a massive injection of resources. They

need going to need to bring people on board. They need to experience people, any people speak the language. They need to be able to dee divert resources from their other investigations to make this happen in a reasonable time frame. Where would they get that money? I mean, is there a process for them to get more funding. The usual place they go to to get their money are the

states who have signed up to the court. So there are hundred and twenty three nations around the world that are part of the International Criminal Court system, so have ratified the treaty, and they are also then the supervisory body of the court, and they also provide funding for

the court. Now, other states can also contribute, so the US, for example, could certainly contribute resources in order to accelerate that prosecution, even though the US has not itself ratified the statute and is in part of the court system. The US Deputy Secretary of State Wendy Sherman said that the United States is helping to pull evidence together presented to international justice parties and then have a legal threshold

that has met. What is the United States or what do individual countries have to do with this process or is it just you know, the prosecutors from the sec. Yeah, well, this is really an important way that states can assist other than transferring funds directly and enabling the sec to boost their their team because states, of course have I referred earlier to interstet materials. For intertet material has been very valuable for these international investigations and prosecutions, and that's

the kind of material that states have. States are the bodies that are in a position to intercept communications and to understand what's going on, and if they are willing to share that information with the prosecutor's office, that can be a massive assistance. And the US has been very helpful to international justice actually through providing these kinds of information, perhaps as lead material rather than evidence, through supporting in its oaring information that the US has in its possession

in the pursuit of international accountability for atrocity crime. So that's absolutely a very helpful thing that the United States and other countries around the world could do. Do you know why the United States isn't a member of the i c c oh Well, that is a long and

interesting story. So the United States was very supportive of the creation of the court, attended the Rome Conference in which drew up the statute, which was all the nations of the world deciding what this court should have jurisdiction over and how it should work. The US was very active at a big delegation actually signed the statute, but never took it through the process of ratification. In other words, never went through Congress to actually turn it into finding

law in the US. And then George W. Bush withdrew from the statute in so far as that makes any sense when it hadn't actually adopted, so kind of unsigned it. And relations under Obama improved. I don't think there was an indication that the US is going to sign up, but there was certainly support for investigations. And then relations

reached an all time low under the last presidency. I don't know if you remember, but President Trump actually issued an executive order against the prosecutor of the International Criminal Court because of the investigation in Afghanistan, which had implications the US military. So, um, you know, it's a good question. I think the hesitation, there's a hesitation over having any other body have sovereignty over or have jurisdiction and be

able to judge the acts of of US personnel. Although you know, I would say to that argument, whenever anybody of any nationality commits a crime on foreign territory, that territory has jurisdiction over those crimes, so it's not a massive step to transfer it to the International Criminal Court. I mean, let's see what position the current administration takes.

I certainly think from what we've seen President Biden's day recently um that there is a much more supportive attitude to the court, and whether that leads to the US actually joining up, which I think would be a wonderful message to send about no impunity for international crimes remains to be seen. The i Sec doesn't conduct trials in abstentia, and they even get putin. Putin would have to be handed over. How would it work. Yeah, he'd have to be handed over. So that's not looking very likely at

the moment, right. I Mean, what we've seen with heads of state and international prosecutions is it tends to be once they've been ousted from power, that they might be handed over by their own stage who you may want to move on and may disagree with the way they've behaved or the kind of situation that then being accused of these international crimes, the climate or the reputational damage

that that's done to the nation. So we saw Slava down Molotovich from Yugoslavia, for example, from Serbia being handed over to the international criminal or tribunal after he lost power, as Serbi was trying to move forward and join the European Union and leave its war trodden paths behind it. So it's possible there could be a trajectory like that

for Vladimir Putin. I mean. The other possibility is that any state would be able to arrest Vladimir Putin on the basis of charges against him for international crimes, so we could see his ability to travel around the world being somewhat limited. There's an analogy there with I don't know if you remember the situation with President Al Bashir

of Sudan, former president. He was also indicted in connection with atrocities in Darfur while he was in power, and he did travel outside Sudan, but very carefully, and only two countries that he had previously screened and checked were not going to arrest him before he got there. So that could be a kind of interim effect that we

see of any possible charges against Vladimir Putin. Let me posit this and you tell me if you agree that it seems highly unlikely that lad Amir Putin at this point, or even after the war is over, will be tried for war crimes. I think it's unlikely as long as he stays in power in Russia. However, if he is no longer in power, or when he's no longer in power, I think it could become a real possibility. I want

to switch to a different topic for a moment. Does the United States have any obligation to take in refugees Ukrainian refugees specifically, Well, there is a general obligation, and this is under a combination of laws. So under refugee law, under human rights law, there is a general obligation not to send somebody back to a situation in which they

fear for their life. Now, what does that mean about people who are not yet here is an unclear point of law to be frank So many people, including the UN High Commissioner for Refugees, would say, well, that provision is meaningless if you don't let people in in the first place, because that's effectively sending them back if they have no if they can't escape the country. However, others are kind of more hardline might say, well, if they're

not on our territory, they're not our problem. So legally, you know, there's some dispute. What's absolutely clear is people cannot be sent back to a situation where they are fearing for their life. So whether that means that the US is obliged to take them, as I said, legally is kind of a point of contention. So I guess that that's why Ukrainian refugees are showing up at the

southern border rather than trying to get in. Absolutely. Yeah, I mean it would be very important for the refugees to just try and land on US soils, and then at that point the US really is under an obligation not to send them back. Then the US is not under an obligation to grant them permanent status, but it would be under an obligation on humanitarian grounds legally to make sure that they are not sent back to Ukraine.

Thanks for being on the show, Kate. That's keep McIntosh, the executive director of the Promise Institute at u c L. A last score the historic nomination of Judge Katangi Brown Jackson. If confirmed, she'll be the first black woman to sit on our country's highest court. At the end of day one of her confirmation hearings, she made a promise to be a fair and neutral arbiter of justice. I decide

cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath. My guest is John Michael's, a professor at u c l A Law School. During the opening statements, a lot of the Republican senators referred back to the Kavanaugh hearings, but not to the latest set of hearings,

which was the Amy Coney Barrett hearings. Do you think that there's some leftover hostility from Kavanaugh that might bleed further into these hearings. Well, it's not clear it's hostility as much as it's an opportunity to relitigate past grievances. And I say that because I'm not sure how sincere these these efforts are. There's certainly um powerful and destructive, but I'm not sure how how credible or sincere they are.

There is a benefit for going back, as it were, and and muddying the playing field as much as possible, and frankly, it needs to be done in this context, if only because Jackson's record is practically spotless. So there has to be some kind of invitation for chaos in order to create the obstruction or or confusion, or let's say, to raise questions about a candidacy that is otherwise a

real no brainer. At what point did confirmation hearings turn into such a part as in totally partisan affair where you have some senators who voted for her to become a judge on the d C Circuit now saying they may not vote for her to be on the Supreme Court. Yeah, so there's a like everything else in this kind of political moment, there's a bit of a partisan debate about

when this all started. A lot of Republicans will focus on the Robert Board hearing, but a lot of other people will say, let's take a step back and realize that the first occasion for really uh subjecting the Supreme Court nominate nominees to the type of aggressive scrutiny really started when the old boys Club started to get shaken up.

And originally Bill's Boys Club was being shaken up only by folks who were white ethnics or more progressive and less within the kind of clubby world of Wall Street. So we're talking about the kind of New Deal appointments, and of course even John Marshall Harlan the second, who was of the kind of elite New York are was scrutinized aggressively because the Conservatives were worried about he'd come

down on segregation issues and desegregation issues. So if one could focus on the Wark hearings as this kind of cultural touchstone, but there were events that led up to it that defined largely, I guess, a modern era of greater kind of care and scrutiny, as this Supreme Court is taking a larger and larger role in the regulation

of our most important institutions and life choices. So Senator Lindsey Graham was complaining that Biden didn't choose Judge Michelle Chiles and said he was going to investigate with Judge Jackson the dark money behind her confirmation process. Now that seems totally inappropriate, and I'm sure she's going to say what does she know about it? Although in a nicer way than Matt I think that would be the most

candid answer um. But of course, still it still allows Lindsey Graham to leave out there unaddressed the question about whether that's actually at all a credible claim that has any validity to it. Just because Judge Jackson can't confirm or deny it doesn't mean it's actually what's been going on in a case like this. So Linday Graham is pulling out his all lawyer Lee trick in doing so and and and doing so in a form where it can be credibly rebutted unless the Democratic senator is going

to use his or her time to do so. And that's what it ends up being often, isn't it. It seems like it's more about the questions than it is about the answers. Yeah, I think that's fair. I think

it's fair, and it's um. It also then further raises the question about how how probitive these hearings ever are, because the senators are either talking to the cameras, they're talking to their Twitter followers, or they're trying to kind of reframe the questions or debates in ways that are advancing various parts of interest, and unfortunately, in many cases we don't actually learn that much more about the nominee, and the nominee has to sit there often stone face

and just watch the partisan circus kind of march past them as it were today, Senator Ted Cruz said he was going to ask her about free speech, religious liberty, gun rights, abortion, and crime. Does he expect an answer to any of those questions, because most nominees have not answered those questions except to say I'll follow precedent. I wouldn't expect to Judge Jackson to to weigh in on any of those issues. It seems unhelpful in the moment.

It could be used down the road where she could be confirmed, to suggest that she's maybe prejudged the case. So there are political reasons, and then there are professional prudential reasons for treading really carefully there. You know, in a different world, under different circumstances, we could actually learn a lot if this were truly uh an inquiry to find out and learn a little bit more about particular candidate.

It's less important in this particular moment, not just because what then Judge gors Hag did or then Judge Ruth Ginsburg did, which obviously gives Judge Jackson cover to do the same things, but also because you know, let's remember that she's one of the more experienced nominees that we've had. She's been a district court judge for many years and then more recently an appellate level judge. She served on

the United States Sencing Commission. I mean, she has a long and well understood track record, So it's not as if she's come out of nowhere and we need to learn about this candidate who no one's ever encountered before. The Republicans seemed to be ready to attack her as being soft on crime. We heard this from Mitch McConnell last week, and you know we're hearing it again in

the Republicans opening statements. There are some skirls attacks that have been raised against her that framed her as being sympathy attic or enabling at ophelia, or being soft on terrorism. Those are claims that are incredibly biting when they turn into sound bite, but have very little context or against substantiation behind them. So I find it deeply troubling the way in which it's been kind of martial to weaponized

in this fashion. I will say this that the fact that Judge Jackson served as a federal public defenders should be considered as a real virtue for a court that hasn't had someone who has that professional experience, that life experience in quite a long time, in decades in fact.

So the idea that the court should have a breath of legal and professional experience that informs their work strikes me as an unalloyed good um and the notion of something being soft or hard when on crime without context is really just again an attempt to undermine her her credibility and suggest that she's somehow not a responsible member

of the legal community, which again has no substantiation. Last week, Senator Josh Holly started tweeting about Jackson consistently sentencing child porn possession and distribution defendants to prison terms well below federal sentencing guidelines. And it seems true that she did sentence several to the minimum and some to the below

the minimum. But put that in context. Yeah, so again this is trying to tap into q and on conspiracy theories about the Democratic Party embracing or enabling at Ophelia.

It's taken wolfully out of context. Supreme Court justices of the right have also challenged and struck down laws that were intended to be tough on sex offenders, because sometimes one has to think about the law outside of the commission of a particular crime, and Conserve of Justices have done that in the not so distant path, and I don't recall, though I could be wrong Josh Howley taking to the public airwaves to decry when his fellow travelers have made similar moves. So they are bound to ask

her about her decision on Don McGann. How defensible is her opinion in that case. Sometimes it might be hard for a judge to explain one ruling in this type of format, not because there in any way doubtful about how they came out in the matter, but because it will open them up to criticism that they're speculating or

going beyond the record. My understanding of how best to proceed under those circumstances would simply say that, you know, I refer you back to my opinion, which is comprehensive and explained the basis for my decision and the reasoning underlying it. And I think one of the benefits we have about a judiciary that puts basically almost all of its work in writing an individuals sign their names to it is that it becomes the kind of a complete

record of the matter. And so to get pulled into a conversation about presidential power at large or about questions about corruption or transparency strikes me as I'll advise, is it likely that you'd answer the question that Republicans intend to ask her about whether she favors packing the court? No, there's no basis for doing that. And if the you know that that's a question for Congress, of course, and I mean in some ways she might it might just be an opportunity for her to say that's a matter

for you all to decide. She's been before this committee three times before, and she's described as extremely nerve racking, and that she took up knitting to sort of help her with her nerves. How do they prep for these? Is it like prepping for oral arguments, where all kinds of questions are thrown at you and you figure out

which answers work best. Is a pretty well orchestrated operation where they are kind of sharpened through the system by members of the Lighthouse, by presumably some friendly voices on the Senate Judiciary Committee side as well. It's it's a very labor intensive process. I will say that one thing that can't be taught, and that, at least my sense of Judge Jackson how she's presenting it today, at least is that you can't teach someone to have a judicial temperament.

You either have it or you don't. And at least at the early stages, Judge Jackson is evidence in a judicial temperament. And by that I mean a cool and colm demeanor, a sense of not easily ruffled. And we haven't seen that uniformly from nominees before the Seven Judiciary Committee. And again we can refer back to Justice Kavanaugh. Then Judge Kavanaugh losing to school and raising his voice to

senators and notwithstanding all that he was obviously confirmed. During Judge Jackson's hearings for the d C Circuit, Republican Senator John corn And asked her what role race plays and the kind of judge you've been, Is that an appropriate question? Do we think we'll hear that at these hearings. I'm sure we'll hear versions of that. You know, whether it's a fair question, I mean, you know, in some ways it's an opportunity. Um. The real question is would he

ask those questions of white candidates? Would he ask what role does gender play with the asset of a mail candidate? If we had a candidate that identified as l G B t Q would he ask a similar question about either gender identity or sexual orientation when it comes to a straight mail um. So one has to be on guard that there's additional burdens that are being imposed on our public officials of color or public officials who are not of the distinct, you know, ruling majority, and whether

it's fair incredible to ask them those questions. Are you fairly confident that, unless something unexpected happens, she'll be confirmed?

I would like to say I'm pretty confident, because I'm enthusiastic about her candidacy, But I think I've measured in my optimism only because we have a larm process to go, and it seems like there is not a lot of bipartisan support, that there's a lot of extra votes lying around for Judge Jackson to pick up, and this may turn into a vote where the vice president has to break the tie, and so it's hard to tell at

this point. Republicans don't seem particularly enthusiastic, notwithstanding that many of them have voted to confirm her for other positions of incredible influence and trust. Thanks John. That's John Michael's of u c l A Law School, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg

Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every week night at tend M Wall Street time. I'm June Grosso and you're listening to Bloomberg The