Given the mechanisms now in place, is it possible to
George W. Bush as a war criminal?
Note that I am not asking whether he is a war criminal, nor whether he should be prosecuted as such; I’m just interested in whether the standing of the U.S. or its role in the U.N. or any other factors would preclude his being brought up before an international body on war crimes the way that other world leaders have been.
It would appear that there are two standards.
The POTUS has legal immunity in regards to official actions taken as the President. Unofficial or actions taken before/after his term of office, however, are not protected by this immunity.*
So unless Bush commited some war crime during his time in the military, he would appear to be immune.
It is however unlikely that the Supreme Court would rule that the President’s orders can supersede the Constitution. There is no higher power than that. And the constitution, so far as I understand it, does declare international treaties as being the Law of the Land (i.e. of Constitution-level strength.) But there is no penalty for creating policy that is in conflict with Constitutional law. Those policies and laws are simply revoked.
Those cases deal with civil liability, not criminal. There are conceivable situations where “official actions taken as President” could constitute crimes.
I revise my statement slightly.
If the president (and perhaps former president?) is impeached by the legislature, he can then be charged for the crime.
But that immunity is within the context of US law. I thought the World Court was intended as a court of last resort, where the accused could be brought to trial for actions against international law, even if the actions of the accused were legal by the laws of the accused’s own country, and the accused’s own legal system was not going to prosecute a legal-to-it action under a foreign law.
Yes, I meant on an international level. Sigh I seem to have a knack for poorly-phrased OPs. I don’t think there is such a thing as “war crimes” within the U.S. criminal law, though I admit ignorance here. At the U.S. level, if criminal prosecution was warranted, I imagine it would begin with impeachment while he was a sitting president.
The United States does not recognize the jurisdiction of the International Criminal Court where such crimes would be tried, so they’re not going to offer up anyone charged by that Court.
That would certainly prevent extradition, but would it be enough to prevent a trial in absentia? I imagine that it is convenient for many nations whose international behavior is not always above reproach to refuse to recognize it.