Judging Freedom - What Retribution Can & Should Putin Face?

Episode Date: April 5, 2022

Zelenskyy Calls for a Nuremberg-Style Tribunal #Putin #Ukraine #RussiaSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

This new year, why not let Audible expand your life by listening? Audible CA contains over 890,000 total titles within its current library, including audiobooks, podcasts, and exclusive Audible Originals that'll inspire and motivate you. Tap into your well-being with advice and insight from leading professionals and experts on better health, relationships, career, finance, investing, and more. Maybe you want to kick a bad habit or start a good one. If you're looking to encourage positive change in your life one day and challenge at a time, look no further than Tabitha Brown's I Did a New Thing, 30 Days to Living Free. In the audiobook, Tab shares her own stories and those of others alongside

gentle guidance and encouragement to create these incredible changes for yourself and see what good can come from them. Trust me, listening on Audible can help you reach the goals you set for yourself. Start listening today when you sign up for a free 30-day trial at audible.com slash wonderyca. That's audible.com slash wonderyca. That's audible.com slash wonderyca. Hello there, everyone. Judge Andrew Napolitano here with Judging Freedom. Today is Tuesday, April 5th, 2022. It's about 1235 in the afternoon on the East Coast.

I'm going to discuss in the next few minutes the calls of President Zelensky of Ukraine for a war crimes tribunal, and I'll do my best to explain to you the law around that. I've already written about this, so if you've seen my column, is Vladimir Putin a war criminal? The short answer is no. Doesn't mean he hasn't committed the crimes. It just means that there's no means to prosecute him for those crimes. And I'll get into some detail in a minute. And then coming up in 25 minutes at one o'clock is Jack Devine. Jack is a former senior official for the CIA. And many of you know, I'm not a fan of the CIA. However, Jack is my friend, has been very

helpful to me, and knows a great deal about what's going on in the intelligence community in Europe, the American intelligence agents in Europe, and in Russia. Are there American intelligence agents in Russia? Well, of course there are. I'm not going to ask him that. And if I do, he's certainly not going to answer it truthfully. So I'll discuss the war crimes in a minute. Then we'll take a break. Then at one o'clock Eastern, Jack Devine. Please remember to like and subscribe. If you like what I do and can subscribe to it, it would be very helpful to all of us. horrible, stomach-churning, gut-wrenching pictures of people whom it appears were killed, murdered, slaughtered, tortured, mutilated, any appropriate verb you want to put in there, by Russian troops in this suburb of Marisol in southern Ukraine. I'm going to assume that this is true for the sake of this argument,

that these are not actors. Here's my little Chris. Hey, hey, hey, hey, hey. That these are not actors and that, in fact, this is real. I'm going to make that assumption because President Putin and his troops are known for their brutality. I say this, there's Chris again, all right, down, down little boy. I say this as one who believes we do not have a dog in this fight. It is not ours to resolve. This is a border dispute between two countries, though the fight is for the most part one-sided. The Ukrainians have shown great courage in resisting the invasion by the Russians. But this is not something for American troops to get

involved in. I'm not a fan of NATO. I don't like the idea of a collective defense. Why we should have to fight this battle for the Ukrainians is of no constitutional significance for us at all. However, it is obvious that the Russian army, the Russian military has gone well beyond its efforts to capture or, in its words, recapture territory. And to that extent, some of these calls for investigation of war crimes appear to be based, in fact, appear to be based on what we see on television. So how would this work? At the present time, there is only one international tribunal that can hear war crimes cases, and that is the International Criminal Court in The Hague in the Netherlands. of Rome. The Treaty of Rome is a treaty signed by almost every nation in the world, notably not China, not the United States, not North Korea, not Russia, and not the Ukraine. Because neither Russia nor the Ukraine have signed this treaty, their

officials are not subject to the jurisdiction of the court. That's basic black letter law. A court in Alabama could not try a bank robber for a robbery committed in New Jersey because the court in Alabama does not have jurisdiction over events in criminal events in New Jersey. Same thing with The Hague. If a country has not voluntarily given jurisdiction to the court, like almost every country in the world did, the court doesn't have jurisdiction over events in that country and officials from that country. Having said that, I must tell you the court disagrees with me. The court is of the view that it has international jurisdiction, universal jurisdiction, that it can prosecute any war crime committed by

any government official anywhere in the United States. That issue has not been tested anywhere because the war crimes prosecutions that it has conducted so far have all been of people from countries that have signed the treaty or where the crimes took place in countries that signed the treaty. The court takes the position that it won't try anyone in absentia, meaning the defendant must physically be in the courtroom. Well, now, that's a significant obstacle. How is Vladimir Putin going to get to the courtroom? Well, he's not going to go there voluntarily, and the court doesn't send agents out to kidnap people. The United States government does. In a very famous case in 1986 in which innocent American tourists were harmed by an act of terrorism in the Middle East in a country where the people who did

this would not have been prosecuted, the Reagan Department of Justice sent FBI agents to kidnap the people they thought had perpetrated these crimes, and they brought them to a federal court in Virginia. Contrary to all precedent and law, contrary to 230 years of history, the court in Virginia claimed it had universal jurisdiction, meaning jurisdiction over foreign persons who committed crimes in foreign countries. These guys were prosecuted, convicted, and are serving life terms in Florence, Colorado. So if Vladimir Putin were to submit to the jurisdiction of the court, it's a no-brainer. The court would then present a case against him. He would not be free to leave, and there would be a trial. He would have the typical defenses available to him, the right to counsel, the right to cross-examine and confront the evidence against him, the right to understand and know the charges against him. But again,

he would have to physically be there. If he's charged by the court but doesn't leave Russia, then he can never leave Russia because that charge would trigger arrest warrants in every country that has signed the agreement. So if the Treaty of Rome, so if those countries are going to be faithful to that agreement and he's spotted in one of those coup or by some popular uprising or by a vote, he could presumably be delivered to The Hague and tried there. What about soldiers in the field who have committed war crimes? Can they be tried in the Hague? The short answer is yes, but the Hague usually tries leadership rather than soldiers in the field, because the soldier's defense will be, just as was the case at Nuremberg, I was following orders. Well, we all know it is unlawful to follow an unlawful order, but the evidence needed to prosecute a soldier in the field who, for example,

tied somebody's hands behind their back and then put a bullet in their brain, which is the example President Zelensky keeps using, it would be very difficult for the soldier to claim that that was his orders. It would also be very difficult to find evidence to capture the very soldier who did this and find evidence against him. Probably the more likely event would be that Ukrainian military would capture Russian military leadership, a colonel, a lieutenant colonel, a general, and deliver that person to the Hague. And then the Hague would claim universal jurisdiction, even though it doesn't have jurisdiction over Russian officials, and it doesn't have jurisdiction over events in Ukraine. So you can see that the law is not clear here. Jurisdiction is key. No court can just say,

aha, I'm in Virginia. I have jurisdiction over what happened in the Sudan. No, I'm in the Hague. I have jurisdiction over what happened in Kiev. Even though the Ukrainians did not sign that treaty, no. But once Putin or once a Russian military leader is physically present in the Hague, there's nothing to get him out of there, and there's nothing other than force to start the trial. So that's where we are at this moment. I don't blame President Biden for raising the issue of war crimes. Legally, it's inappropriate, but politically, it helps galvanize opposition to Russia and support for the sanctions. The sanctions are horrible. The sanctions do not change Russian policy whatsoever.

The Russians were prepared for the drop in the value of the ruble and for the loss of income from the sale of oil and wheat, which are their two principal exports. The sanctions harm innocent people who have jobs at companies that now can't afford to pay them. And the sanctions harm Americans. They harm American banks, and they harm people that do business with American banks. Putin has no moral compass. A sanction is not going to stop him at all. On the other hand, there's no moral, legal, or political will to introduce force from America. Please, God, let's not go there. This is not World War III to stop Putin, but it seems that only force or some miraculous Ukrainian victory will stop him.

I hope all of this makes sense. You know, the law is often composed of bad rulings and bad facts. There are very few rulings here, but we do have a lot of bad facts, horrible facts, facts that we don't want to confront. I don't blame President Zelensky for making the claims that he makes, but when you're talking about the law and when you're talking about the authority of courts and how courts work and who they can prosecute, one needs to be precise. I hope this helps. Remember to like and subscribe. And in about 15 minutes, Jack Devine, who knows more about the intelligence community in Russia than anybody I know. Judge Napolitano for judging We'll be right back. start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus

on your future. Learn more at wgu.edu.