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Richard Helppie
Hello, welcome to The Common Bridge. I'm your host Rich Helppie and we've got one of our favorite guests returning today from Southern Methodist University in Dallas, Texas, Dr. Anthony Colangelo. We're going to be talking about international law. Professor Colangelo, welcome to The Common Bridge.
Professor Anthony Colangelo
Thank you.
Richard Helppie
There's a lot going on in the Ukraine. I don't know that anybody forecasted that the war would turn this way or the special military operation - as Vladimir Putin captioned it at first, I think he may have changed that - but it does impact a lot of international law. The UN has been investigating and it seems that there's pretty clear evidence of war crimes. We're going to talk today about a concept of universal jurisdiction and what other nation states around the world can do. Of course, we're doing this against this background of what's going to happen next with the bridge to Crimea being destroyed, the Nord Pipeline being destroyed, nuclear saber rattling, and even our own president using the word Armageddon. So very perilous times, indeed. But where are we on the international law, Professor? What should we be thinking about today?
Professor Anthony Colangelo
I think the key issue right now, in light of the UN fact finding mission, is that war crimes have likely been committed. I actually think, looking at the fact finding mission, there's no question in my mind that war crimes have been committed. The prosecutor at the International Criminal Court has opened an investigation into prosecuting war crimes, prosecuting for war crimes, and that's actually where a lot of the attention has been focused at this point. What I want to talk about is something a little bit different, which is if the ICC, or International Criminal Court, is taking a long time or is not doing a very good job, what other mechanisms are there out there for states to combat war crimes and hold the perpetrators accountable. And here, I think, is where international law has a lot of teeth. There is a concept called universal jurisdiction. Universal jurisdiction allows any state in the world to prosecute the perpetrators of certain crimes against international law. These would include genocide, crimes against humanity, torture, and war crimes. What's so interesting about this is it does not require any connection to the crime. So any state can prosecute and there doesn't have to be a territorial connection, [it] doesn't have to happen on that state's territory, it doesn't have to involve that state's nationals. And my thesis, going back to 2006 when I originally started writing on this topic - it's a real specialty of mine - is that what states are doing when they assert this universal jurisdiction is they're acting as the vessel for the application of international law. It is a decentralized enforcement mechanism for the application and vindication of international law. This is a thesis that has now been cited and quoted by numerous courts around the country.
Richard Helppie
So let me see if I understand that. If the UN believes war crimes have been committed, anybody from a foot soldier to Vladimir Putin himself, Chile - just to pick a random country - could say we're going to prosecute that war crime, and they would have standing to do that. How would they even go about bringing that case? It almost sounds like the Texas abortion law; you don't even have to be a party to what's going on in order to prosecute.
Professor Anthony Colangelo
So I'll give you a little history here, how it started out. It started out with piracy - the high seas, nobody had jurisdiction. But these pirates were a scourge on international trade and human rights. There are cases in our jurisprudence dating back to the founding, in which the court said - Chief Justice Marshall, in fact - the pirate is a wolf's head that any man may slay. So everybody in the international community has an interest in prosecuting pirates. Today, especially after World War II, there was a big boom in this category of cases to include human rights violations. The theory is that international law prescribes these at a very, very high level, because they are so damaging to the rule of law that every state has an interest in prosecuting. Moreover, if you look at the states that ordinarily would prosecute crimes, it's the territorial state or the national state, but of course, who are the authors of the crimes we're talking about? They're the state itself. So we need some enforcement mechanism outside that state, to have jurisdiction to prosecute crimes that occur inside that state, perpetrated by the very state itself.
Richard Helppie
So in a criminal proceeding, there's a reasonable doubt there's a crime, there's an investigation done, and then perhaps an indictment, and then an arrest, and then a trial. I mean, I can't imagine Vladimir Putin submitting to any of that. It seems to me that in history, prosecution of war crimes has been the purview of the victor; clear cut war post World War II Nuremberg, post World War II Japan and such. How would something like this play out where this universal jurisdiction would actually have reach into soldiers that have committed atrocities that would be defined as war crimes, or indeed the attacks that were directed by Putin would be described as war crimes? Is there really any teeth in it?
Professor Anthony Colangelo
So it actually happens. There's the famous case of Israel versus Adolf Eichmann, Eichmann being a Nazi who perpetrated crimes in Germany, during World War II when Israel was not even a state. So what would have been the basis of Israeli jurisdiction at that time? It couldn't be that Eichmann committed these crimes on Israeli territory; Israeli territory didn't exist. He didn't commit crimes against Israeli nationals. I mean, they were Jewish, but they weren't nationals of the state of Israel. So what was the basis of the crime, the basis of the prosecution? It was the crime itself that gave rise to jurisdiction. I mentioned some of my work being cited and relied upon by courts in the United States; there are a couple of Somali pirates that are in jail right now because one of the articles that I wrote.
Richard Helppie
Sounds to me, from a lay perspective, that's really groundbreaking legal thesis, legal theory. So tell us a little bit about maybe where was the state of the law prior, then your research and subsequent column, and then the application for the Somali pirates? What changed in there?
Professor Anthony Colangelo
So basically there were two ways of thinking about universal jurisdiction in the jurisprudence, and one was that we looked at precedent. The main precedent on this piracy issue was from the Founding, around the Founding in the early 1800s. Piracy, as defined by international law then, was robbery on the high seas. My thesis was that piracy, or any universal jurisdiction crime, the definition evolved with changes in international law. So the court that upheld the prosecution of the pirate looked to modern day piracy, which the definition is contained in the United Nations Convention on the Law of the Sea; my argument was actually the Founders thought that international law was a fluid law, it was evolutionary, it wasn't static. So if we were to be true to the Founding thinking on this question, then we too, should be internationalizing an evolving set of norms which capture modern day piracy. Because the pirates, in the present case, their crimes were not robbery on the high seas, they were shooting at civilian frigates and things like that so the Court sided with me; another court didn't. I think the court that sided with me was right. [Laughter.] But I did want to mention one thing before we move on, which is your question about, or your comments about, getting Vladimir Putin into court or Russian soldiers. The soldiers, it's easier. If you can capture them you can prosecute them, you can even kidnap them and that would be legal under international law. It's a doctrine called Male Captus Bene Detentus: "the bad captures the good detention." For Putin in particular, and certain high ranking officials, it's a little bit more difficult because there's something called sovereign immunity; so he, as President of Russia, is immune from suit under international law until he leaves office. It's his status as a high ranking official that he's immune from suit until he leaves office. But once he leaves office, he can be prosecuted for war crimes and the crime of aggression. So that would be his status as a president; status-based immunity. There's another immunity called conduct-based immunity and that insulates, makes immune from prosecution, certain acts taken in the course of official functions of the government. Now, here, you've got war crimes. Well, war crimes are not official acts, they don't qualify as official acts under international law. So when Putin leaves office, he's subject to prosecution anywhere in the world.
Richard Helppie
So that makes sense to me because citing post World War II, those that were prosecuted, they were out of office, because their governments no longer existed. They couldn't claim that the things that they did were in the line of duty, or because it was part of the job. In fact, the famous Nuremberg defense never worked. But as a practical matter, the Allies had control of the geography, they were able to gather up these high ranking people and bring them to trial. But, I mean, as a practical matter, Vladimir Putin is not going to leave Russia and so nobody's going to go in there and make an arrest. Even some of our well-publicized arrests that we had; Roger Stone, 24 guys going into get him. So I don't know how we're going to be able to reach him. Isn't there a parallel here that there were people outside, and perhaps within the United States, after the Iraq War saying that President Bush should have been arrested for a war crime? Is it the same theory?
Professor Anthony Colangelo
It is the same theory, yes.
Richard Helppie
And the crime is the invasion, not the conduct of the soldiers on the ground, like attacking civilian targets and things.
Professor Anthony Colangelo
It's both. (Richard Helppie: Oh, it's both. Okay.) So it's both. There are two categories of war crimes. One goes to the invasion, and that's called "jus ad bellum," the Latin for it. That is the law governing the territorial sovereignty of the state that's been violated. So here, aggression is a violation of jus ad bellum. The other category of crimes or "jus in bello," is the Latin for that, and those are the war crimes. So you can have, for example, a war that is perfectly legitimate, a war of self-defense. So here we've got Ukraine now, Ukraine's acting in self-defense; perfectly legal under international law. But the Ukraine soldiers can still commit war crimes, they could violate the "jus in bello" even though the "jus ad bellum" is perfectly fine.
Richard Helppie
I see. So thinking back in our history - Vietnam. If memory serves me correctly, Secretary of Defense Robert McNamara, late in his life, said he probably could have been prosecuted for war crimes. Is that because some of the atrocities that were carried out by military people under his command did something or because of violating the territorial integrity of another country?
Professor Anthony Colangelo
If he said war crimes, he was probably referring to the jus in bello, the conduct of the soldiers in Vietnam. The liability would run from the soldiers straight up to him, straight up to the top of the chain of command.
Richard Helppie
Right. And it could be that the policies of the carpet bombing and things that we were doing indiscriminately hitting...
Professor Anthony Colangelo
Yeah, and that would be a war crime, that would be a war crime.
Richard Helppie
Right. So as this conflict in Ukraine grinds on, I know there's been more talk about the weaponry that we've sent into Ukraine. If memory serves me correctly, that you felt we were legally justified - we being United States - legally justified in doing that. First of all, did I recall that correctly? And do we have - I'm not going to comment on the policy itself, but just the legality - is one country allowed to arm another as much as we've armed Ukraine?
Professor Anthony Colangelo
I think the answer is absolutely yes. Article 51 of the UN Charter says collective self-defense and this is a collective self-defense. I think it's perfectly legal, yes.
Richard Helppie
Do we know that in history, has there ever been a surrender or a ceasefire or any cessation of hostilities where one of the terms was non-prosecution of war crimes?
Professor Anthony Colangelo
Well, war crimes...I would have to think about it some more but there are amnesties that have been set up for human rights abuses - as the first thing that pops into my head. So like truth and reconciliation, that type of commission, what was happening in the background there. I don't know if I can come up with a war crimes instance off the top of my head.
Richard Helppie
Well, it's comforting to know there is such a thing as universal jurisdiction. I would think a person in Vladimir Putin's place [is] probably thinking about winning the war first, because [there's] really not much risk absent a defeat. We've had Professor Jesse Kaufman on talking about what may happen in the Ukraine and his view was that this war would not end without regime change, either in Moscow or Kyiv. So it seems to me that much of this might be academic at those senior levels, but those soldiers that would be captured would be subject to prosecution. I believe one of them actually pled guilty, at one point, and has been sentenced to ten years in a Ukraine prison.
Professor Anthony Colangelo
I agree with that, that we stand a very small chance of getting Putin in our courts. But as you say, he's not going to be leaving Russia anytime soon, we could capture him there. That's an option - going to be very hard. But I don't know that we want to do that for any number of reasons. It also does tie into the allegations against President Bush and Donald Rumsfeld from the Iraq war, that it was a violation of international law and therefore, Belgium should be able to prosecute.
Richard Helppie
You think it was a leap legally for Saudi Arabians trained in Afghanistan attacking us on 911 didn't warrant a military invasion of Iraq; who'd have thunk it? [Laughter.] I understand the connection; I'm sure the Iraqis - and we know Saddam Hussein was surprised by the attack. Similarly, Ukraine was surprised/not surprised by the attack. Look, this is changing the face of Europe, is changing the role of NATO, Finland - now 700 plus mile border with Russia - joining NATO; these are seminal events that are going to play out for decades, if not longer. What take-away lessons do we want to leave for the readers, the viewers, and the listeners of The Common Bridge, most of whom are not familiar at all - like me - with the topics around the law as it pertains to war and military aggression?
Professor Anthony Colangelo
I would just say there is a justice mechanism out there called universal jurisdiction; little understood, but it's quite powerful and it provides a forum for the vindication of human rights and killed civilians. There has been a lot of talk about the International Criminal Court. But I guess what I would push is this conversation doesn't need to stop there, that there's this very long standing doctrine that states can rely upon in order to bring the perpetrators of war crimes to justice.
Richard Helppie
So if a foot soldier today is on Ukraine soil and is tempted to do something - attack a civilian: murder, rape, torture - that the long arm of international law may reach them someday at the cessation of hostilities and they could be sentenced. I don't know what the sentences are, if they're prison or death, but that they're running that risk every day they're invading into Ukraine.
Professor Anthony Colangelo
Yes, look, here's the thing. What do we want our criminal law to do? I mean, this is a fundamental question. We want to punish. Of course we want to punish people who commit human rights abuses and war crimes but we also want to deter. Exactly, going back exactly to your hypothetical, here's this guy, he's on the battlefield, he's tempted to commit a war crime. There is this mechanism out there to hold him accountable, does that deter him even a little bit [more] than nothing, which would be the alternative, and I would say, even if it deters him just a little bit and you aggregate that and multiply it across all of these soldiers, you're seeing a real difference in the way human actors behave in the waging of war. Because again, the alternative is nothing. So when people say to me, well, oh, international law doesn't exist, it doesn't exert any coercive power. I mean, I think the answer is, no, it does and what's the alternative?
Richard Helppie
I concur with you. My memory's long enough to understand the prosecutions during the Vietnam War when our military did horrible things, but they were held accountable. In fact, there are some heroic stories about other units coming in to prevent massacres and further bloodshed to innocent people. Professor, you're always so generous with your time and I'm so glad we have people like you working on the cutting edge of these issues. Before we wrap up today, anything that we haven't talked about or any closing thoughts you'd like to share with our listenership?
Professor Anthony Colangelo
We covered a lot of ground, didn't we?
Richard Helppie
We sure did.
Professor Anthony Colangelo
So nothing's coming to mind.
Richard Helppie
We've been talking today on The Common Bridge with Professor Anthony Colangelo of Southern Methodist University, some intriguing angles on the war in Ukraine. Please look up Professor Colangelo's biography and some of his writings. There are good people working on good things out there and that's what The Common Bridge is about. So join us on The Common Bridge at substack.com. For today, this is your host Rich Helppie, signing off on The Common Bridge.
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