Presidental War Crimes

[BobTheCoward]

Treaties, once ratified by Congress, are part of your countries national legal system - essentially not following the treaties is breaking US law once ratified.

For example, the US really wants to have the option to use land mines as part of their military operations. This is why they have not ratified the Ottawa Treaty (Land Mines Ban Treaty) - if the US does sign and ratify the treaty, then any use of non-command detonated mines by US forces is illegal and the commanders ordering their use are subject to criminal sanctions.

You missed one detail. Treaties become us law, but they do not have primacy over future acts of legislation. So, if congress passes a law directing their use, that is the new law.

 

[sunmaster14]

You missed one detail. Treaties become us law, but they do not have primacy over future acts of legislation. So, if congress passes a law directing their use, that is the new law.

I'm pretty sure that is correct. What remains an open question is whether or not the President can abrogate a treaty all on his own.

 

[Border Reiver]

You missed one detail. Treaties become us law, but they do not have primacy over future acts of legislation. So, if congress passes a law directing their use, that is the new law.

Nothing in international laws prevents countries from abrogating treaties or parts of treaties to which they are a part, agreed.

The issue is whether or not international courts would accept, "it's legal under US law" as a valid defence.

 

[fuelair]

How about the extra-judicial killing of Anwar al-Awlaki and his son?

I actually agree with Obama's actions in this case, but holy crap, killing an American citizen abroad without any judicial oversight strikes me as something a lot of liberals would be protesting if Bush had done it. And then, two weeks later, killing his 16-year-old son, also an American citizen? Again, a proper decision in my estimation, but unlikely to be viewed as such by liberal thinkers under a Republican administration.

I am for it and I think you know that as a certainty. I consider such as clear traitors who should be arrested and tried if no US citizens/military will be harmed thereby and killed straight on otherwise.

 

[theprestige]

If you're actually in Yugoslavia, and you weren't invited, then of course you're a military target. I don't think that has anything to do with what specifically you were doing there. A medic in the army, even one attending to a wounded soldier on the battlefield, is also a legitimate military target, but that doesn't mean that doctors at a hospital in Belgrade are.

Your confusion about combat medics aside, I think it has a lot to do with what specifically I was doing there.

If Doctors Without Borders were there uninvited, that wouldn't make them a military target, just criminals. Because of what specifically they were doing there.

If CNN were there uninvited, that wouldn't make them a military target, just criminals. Because of what specifically they were doing there.

If a military propaganda unit were there uninvited, that would make them a military target. Because of what specifically they were doing there.

And if a group of civilians were using civilian infrastructure to do the work of a military propaganda unit, that would make them military targets.

Note that my unit doesn't go places as a news organization. They aren't there to independently report on the war effort, not even favorably. They are there to run propaganda missions in coordination with and in support of military operations. They are there to attack the morale of the enemy forces and de-legitimize their mission. They are there to influence enemy behavior in order to reduce their effectiveness and their willingness to fight.

Their mission is a military mission. And it remains a military misison, even if they take off their uniforms, set aside their military equipment, and carry out the mission from a civilian broadcasting facility.

Here's a similar situation:

https://en.wikipedia.org/wiki/Rwandan_genocide#Means_of_killing

Local officials and government-sponsored radio incited ordinary citizens to kill their neighbors​

I would not have considered it a war crime to put a bomb or missile on every such radio station.

 

[theprestige]

Nothing in international laws prevents countries from abrogating treaties or parts of treaties to which they are a part, agreed.

The issue is whether or not international courts would accept, "it's legal under US law" as a valid defence.

I've been having trouble following this thread of the conversation. Valid defence for what?

 

[theprestige]

Going back to the OP, which defines a war crime in part as, "an act that constitutes a serious violation of the law of war that gives rise to individual criminal responsibility".

I think if we're going to call presidents war criminals, we need to look at military operations where they were personally involved in planning or supervising, or where they should have been.

Take the raid on the Bin Laden compound, for example. We're told Obama was personally involved in the planning, and gave the authorization himself. We also know he was in the operations room during the raid, watching it in real time with his advisors. If it was a war crime (I'm not saying it is), then it's clear that Obama was personally responsible for that crime. I think the same thing can be said for the drone strikes. The president is, or should be, personally involved to the degree that he bears individual responsibility for them.

These can be compared with other possible war crimes, where the president cannot be said to bear individual responsibility--My Lai, for example, or negligence generally.

 

[Border Reiver]

I've been having trouble following this thread of the conversation. Valid defence for what?

If brought to trial for war crimes, could you use the defence of, "But it's legal to do so under my national law".

Ie. If your national laws say that "enhanced interrogation" methods are legal, is that a valid defence for charges brought under the anti-torture treaty?

 

[Andy_Ross]

How about the extra-judicial killing of Anwar al-Awlaki and his son?

I actually agree with Obama's actions in this case, but holy crap, killing an American citizen abroad without any judicial oversight strikes me as something a lot of liberals would be protesting if Bush had done it. And then, two weeks later, killing his 16-year-old son, also an American citizen? Again, a proper decision in my estimation, but unlikely to be viewed as such by liberal thinkers under a Republican administration.

Citizenship is secondary to the fact they were enemy combatants in a war sone.

 

[ddt]

If brought to trial for war crimes, could you use the defence of, "But it's legal to do so under my national law".

Ie. If your national laws say that "enhanced interrogation" methods are legal, is that a valid defence for charges brought under the anti-torture treaty?

I think the judge will laugh hard in your face and dismiss that defence.

Let's first go back one notch. The idea that domestic law can trump an international treaty is preposterous. Countries routinely make reservations at time of signing ("we sign except for article 37"), maybe even at time of ratification, but once you've ratified a treaty you're bound by it.

For one, let's take the idea to the extreme. Country C signs and ratifies treaty T, and a year later it passes a law which voids all provisions in T; meanwhile the country still touts it's a signatory of T and it's listed as such on the relevant websites etc. That's outright lying.

For second, it means that each of the 197 UN states has to monitor each of the other 196 UN states' legislation to see if there's nothing that voids some treaty. That's outright ludicrous. Except when you're a fan of senseless employment projects, because that's easily 100,000 full-time jobs.

The fact that the USA apparently enjoys this notion that they can void (parts of) international treaties by domestic law reeks very much of American exceptionalism: "we're better than the rest of the world". No you're not.

There's a long-standing legal principle which holds in civil law: "pacta sunt servanda", which means: agreements must be kept. That also holds in international law and is enshrined in the Vienna Convention on the Law of Treaties, which is a kind of meta-treaty and lays down the rules of treaties. Article 26 is:

Article 26 — Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Oh wait, the USA is not a signatory to the Vienna Convention. American exceptionalism again at work.

To close off, there's a school in international law which says that treaties that have been signed by sufficiently many countries are also binding on non-signatories. So, you could even have a judge which to the defence

My country didn't sign the anti-torture convention

retorts with

But 195 UN states have signed, your state and state S are the only non-signatories. That makes it binding on your state as well.

 

[TubbaBlubba]

To close off, there's a school in international law which says that treaties that have been signed by sufficiently many countries are also binding on non-signatories. So, you could even have a judge which to the defence

retorts with

Which makes sense, since ultimately international agreements are about what standards we wish to hold those we want to do business with. When the people who do not adhere to those standards are in a minority, they can't really expect others to keep condoning them unless they have a lot of leverage.

 

[BobTheCoward]

For one, let's take the idea to the extreme. Country C signs and ratifies treaty T, and a year later it passes a law which voids all provisions in T; meanwhile the country still touts it's a signatory of T and it's listed as such on the relevant websites etc. That's outright lying.

h

That is us Constitutional law. No congress can tell the hands of any future congress. Any future legislative act overrides an earlier treaty.

 

[ddt]

That is us Constitutional law. No congress can tell the hands of any future congress. Any future legislative act overrides an earlier treaty.

It is an interpretation of the US Constitution (mind your capitals, please) by SCOTUS, specifically, in the Head Money Cases, in 1884. Any future SCOTUS could rule otherwise, and wiser. The relevant clause in the constitution, article VI clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

does not necessarily say so. It could be interpreted otherwise.

I see you have not addressed at all my arguments why this scheme is preposterous. Do you care to do so?

 

[ddt]

Which makes sense, since ultimately international agreements are about what standards we wish to hold those we want to do business with. When the people who do not adhere to those standards are in a minority, they can't really expect others to keep condoning them unless they have a lot of leverage.

Yes, unfortunately "might makes right" very much holds water in international law. But I very much agree with that school, and I hope to see the day that an American, or Israeli, or anyone else is tried before the ICC despite their state not being a signatory to the Treaty of Rome.

 

[BobTheCoward]

It is an interpretation of the US Constitution (mind your capitals, please) by SCOTUS, specifically, in the Head Money Cases, in 1884. Any future SCOTUS could rule otherwise, and wiser. The relevant clause in the constitution, article VI clause 2:

does not necessarily say so. It could be interpreted otherwise.

I see you have not addressed at all my arguments why this scheme is preposterous. Do you care to do so?

The last in principle has been affirmed multiple times over 120 years. It wasn't some one off decision.

Your argument involves such a radical reinterpretation of case law I'm not sure what I am supposed to critique. Yes if the supreme court radically changed its view consistent with your, then your argument would work.

Are there any scholars calling for a reinterpretation? I would like to read them.

 

[ddt]

The last in principle has been affirmed multiple times over 120 years. It wasn't some one off decision.

Your argument involves such a radical reinterpretation of case law I'm not sure what I am supposed to critique. Yes if the supreme court radically changed its view consistent with your, then your argument would work.

Are there any scholars calling for a reinterpretation? I would like to read them.

Your answer betrays a very myopic, self-centered view as if the world only consisted of the USA. Have you even read my post? I'll try again.

When the US president signs and the US Senate ratifies a treaty, the USA promises to 190 other states that it will abide by the provisions of that treaty. When the US Congress subsequently passes a law which voids, say, article 4 of that same treaty, it secretly says that it will not abide with article 4, while it still advertises to those 190 other states that it will abide by all provisions of that treaty, including article 4. That is, in common parlance, called lying.

 

[BobTheCoward]

Your answer betrays a very myopic, self-centered view as if the world only consisted of the USA. Have you even read my post? I'll try again.

When the US president signs and the US Senate ratifies a treaty, the USA promises to 190 other states that it will abide by the provisions of that treaty. When the US Congress subsequently passes a law which voids, say, article 4 of that same treaty, it secretly says that it will not abide with article 4, while it still advertises to those 190 other states that it will abide by all provisions of that treaty, including article 4. That is, in common parlance, called lying.

So?

Also, it's not done in secret.

 

[ddt]

So?

Also, it's not done in secret.

It's a breach of contract. Does that help?

And while not done in absolute secrecy, it's sneaky. Does the US notify the other contracting parties every time it passes a law which overrules (part of) a treaty?

 

[BobTheCoward]

It's a breach of contract. Does that help?

And while not done in absolute secrecy, it's sneaky. Does the US notify the other contracting parties every time it passes a law which overrules (part of) a treaty?

No, it doesn't help. Of course voiding part of a treaty is a breach. Congress is under no obligation to not be stupid.

 

[ddt]

No, it doesn't help. Of course voiding part of a treaty is a breach. Congress is under no obligation to not be stupid.

Apparently, you don't think it's important to keep your word. I don't understand why you even bother to discuss any matters of law as the whole concept of law then becomes pointless. I'm done with this discussion.