# Could a sitting President send past Administration officials to the World Court? **URL:** \ **Category:** Great Debates\ **Created:** [November 3, 2005, 3:54pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304 "2005-11-03T15:54:54Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 3, 2005, 6:10pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/21 "2005-11-03T18:10:52Z")
I am not an attorney, but the International Criminal Court exists to have jurisdiction over some of the things that were mentioned. But there are hurdles: 1. Aggression: You say you want to prosecute Bush for an illegal, unjustified war. This would probably be the crime of aggression. However, while the ICC claims jurisdiction over prosecutions for aggression, there is no definition to the crime. I fail to see how someone can be prosecuted for a crime which has no elements to prove. Until this is defined, I don’t think anyone at all is going to be prosecuted at the ICC for aggression. 2. Torture. The ICC is supposed to prosecute two forms of torture: crimes against humanity, and war crimes. For a crime against humanity, the torture would have to be committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” I’m not sure that bill fits the situation, but that’s debatable. For a war crime, the torture would be considered as part of a “grave breech” of the Geneva Conventions against “persons or property protected under the provisions of the relevant Geneva Convention,” and those acts must be committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” This is probably more in the ballpark, but let’s get serious: from what we know right now, it’d be difficult to prove beyond a reasonable doubt that there was a plan to commit large-scale acts of torture on persons subject to the Geneva Conventions. That’s a lot that a prosecutor would have to prove – if OJ can get off, let’s get real, Bush and others could find some damn good lawyers, too. 1. Jurisdiction: This is probably the toughest hurdle. Individuals are not supposed to be referred to the ICC for prosecution if the case has been legitimately investigated within the home country’s jurisdiction. Therefore, **President Evil Captor** , if **Attorney General Bricker** does a thorough investigation and finds that there is insufficient reason to prosecute Bush in the US, by my reading, Bush could not be prosecuted in the ICC. OTOH, if **AG Bricker** were to conduct a fraudulent investigation with a predetermined conclusion, all bets would be off on this point. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [November 3, 2005, 6:11pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/22 "2005-11-03T18:11:30Z")
Obviously that should be ‘they are(n’t) THAT stupid that their finger prints would be on boxes and boxes of evidence when they leave’ -XT ---
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [November 3, 2005, 6:24pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/23 "2005-11-03T18:24:07Z")
> [@Ravenman](#): > > I am not an attorney, but the International Criminal Court exists to have jurisdiction over some of the things that were mentioned. But there are hurdles: Niether the US or Iraq were eversignitories to the ICC. So they have no jurisdiction. The World Court _could_ have jurisdiction from the UN. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 3, 2005, 6:44pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/24 "2005-11-03T18:44:35Z")
So President **EC** , do you have any comment on the impeachment proceedings against you for violations of national security by revealing classified documents? Regards, Shodan ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 3, 2005, 7:03pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/25 "2005-11-03T19:03:22Z")
> [@Ravenman](#): > > I am not an attorney, but the International Criminal Court exists to have jurisdiction over some of the things that were mentioned. But there are hurdles: > > 1. Aggression: You say you want to prosecute Bush for an illegal, unjustified war. This would probably be the crime of aggression. However, while the ICC claims jurisdiction over prosecutions for aggression, there is no definition to the crime. I fail to see how someone can be prosecuted for a crime which has no elements to prove. Until this is defined, I don’t think anyone at all is going to be prosecuted at the ICC for aggression. I don’t know either. I was under the distinct impression that there were illegal wars and legal wars, and one of the key elements was whether the country that attacks is “provoked” or “unprovoked.” Now, in cases like Afghanistan and Gulf War I the provocation is clear: the Taliban ruling Afghanistan was supporting Al-Qaeda, which launched an attack on US soil. Definite provocation. In the case of Gulf War I, Saddam invaded a neighboring country. Definite provocation. But what was the provocation in Gulf War II, exactly? The notion that Saddam was intent on obtaining WMDs was strongly countered by the UN inspectors. There was no real evidence that he had any imminent plans to attack ANYONE. I would call it an unprovoked war, therefore an illegal war. Would that fall under World Court jurisdiction? I don’t know. > [@](#): > > 1. Torture. The ICC is supposed to prosecute two forms of torture: crimes against humanity, and war crimes. For a crime against humanity, the torture would have to be committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” I’m not sure that bill fits the situation, but that’s debatable. I agree, there was no civilian population systematically attacked via torture. > [@](#): > > For a war crime, the torture would be considered as part of a “grave breech” of the Geneva Conventions against “persons or property protected under the provisions of the relevant Geneva Convention,” and those acts must be committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” This is probably more in the ballpark, but let’s get serious: from what we know right now, it’d be difficult to prove beyond a reasonable doubt that there was a plan to commit large-scale acts of torture on persons subject to the Geneva Conventions. That’s a lot that a prosecutor would have to prove – if OJ can get off, let’s get real, Bush and others could find some damn good lawyers, too. Colonel Wilkerson has alleged that he has seen documents signed by the VP and various officers which not only permitted but encouraged officers to engage in torture, practices well outside the Geneva Convention, in an interview on NPR this a.m. Which was what got me thinking about this topic. Apparently, a paper trail does exist or at one time existed. Assuming that the evidence does not get shredded (and it’s very easy to make copies of emails) then we might just have a case. > [@](#): > > 1. Jurisdiction: This is probably the toughest hurdle. Individuals are not supposed to be referred to the ICC for prosecution if the case has been legitimately investigated within the home country’s jurisdiction. Therefore, **President Evil Captor** , if **Attorney General Bricker** does a thorough investigation and finds that there is insufficient reason to prosecute Bush in the US, by my reading, Bush could not be prosecuted in the ICC. OTOH, if **AG Bricker** were to conduct a fraudulent investigation with a predetermined conclusion, all bets would be off on this point. I do not think Bricker would conduct a fraudelent investigation, that’s for attorneys of lesser stature like Alberto Gonzalez. But for the reasons I cited, I think a case could be made. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 3, 2005, 7:05pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/26 "2005-11-03T19:05:02Z")
> [@Shodan](#): > > So President **EC** , do you have any comment on the impeachment proceedings against you for violations of national security by revealing classified documents? > > Regards, > Shodan Unless the House and Senate are both Republican, I have no fear on that score. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 3, 2005, 7:06pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/27 "2005-11-03T19:06:30Z")
> [@AFAIKnow](#): > > Niether the US or Iraq were eversignitories to the ICC. So they have no jurisdiction. The World Court _could_ have jurisdiction from the UN. What if the Administration in charge were very welcoming to World Court jurisdiction and made every effort to accommodate them? Would that make a difference? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 3, 2005, 7:11pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/28 "2005-11-03T19:11:35Z")
> [@Evil Captor](#): > > Unless the House and Senate are both Republican, I have no fear on that score. They are. Regards, Shodan ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 3, 2005, 7:12pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/29 "2005-11-03T19:12:52Z")
> [@Evil Captor](#): > > Mr. Attorney General, do we not have laws against murder and torture and lying to Congress? Mr. President, with all due respect, what the fuck are you talking about? And, btw, there is no law that says the president can’t lie to Congress. A good thing, too, otherwise no president would ever address Congress. Would you support a law that Congressmen can’t lie in the Chamber of either House? That would be fun to watch! As to “legal and illegal wars”, only Congress has he authority to declare war. If you want to prosecute Congressmen for an illegal war, you might have some basis. ---
**Author:** ![bdgr](https://avatars.discourse-cdn.com/v4/letter/b/a87d85/32.png) [@bdgr](https://boards.straightdope.com/u/bdgr)\ **Post date:** [November 3, 2005, 7:24pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/30 "2005-11-03T19:24:19Z")
> [@Shodan](#): > > So President **EC** , do you have any comment on the impeachment proceedings against you for violations of national security by revealing classified documents? > > Regards, > Shodan Eh…Just declasify the documents first. NP. ---
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [November 3, 2005, 7:26pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/31 "2005-11-03T19:26:46Z")
> [@Evil Captor](#): > > What if the Administration in charge were very welcoming to World Court jurisdiction and made every effort to accommodate them? Would that make a difference? I dont think an admistration’s preference to the WC makes any difference. A federal judge could easily bar the extradition of a citizen if it felt it was illegal. The US does not recognize ICC’s jurisdiction so a ruling would be a given in that regard. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 3, 2005, 7:28pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/32 "2005-11-03T19:28:46Z")
> [@bdgr](#): > > Eh…Just declasify the documents first. NP. Was it Nixon who made that argument? Regards, Shodan ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 3, 2005, 7:29pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/33 "2005-11-03T19:29:23Z")
> [@Evil Captor](#): > > What if the Administration in charge were very welcoming to World Court jurisdiction and made every effort to accommodate them? Would that make a difference? Congress would have to authorize participation in the WC, not just the prez. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 3, 2005, 7:35pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/34 "2005-11-03T19:35:04Z")
> [@AFAIKnow](#): > > Niether the US or Iraq were eversignitories to the ICC. So they have no jurisdiction. The World Court _could_ have jurisdiction from the UN. The ICC has what is basically extraterritoriality provisions so that individuals from non-signatory nations could be subject to prosecution. This means that the ICC is supposed to have jurisdiction even over non-signatories. There is a wrinkle that states can sign agreements among each other not to refer persons of other like-minded nations to the ICC for prosecution. The US has created quite a number of these Article 98 agreements, including with Iraq and Afghanistan, to the best of my recollection. I am not sure that such an agreement prohibits the US from turning over one of its own citizens to the ICC; it would prohibit Iraq from bringing a case against a US person. I don’t think the ICJ does what you think it does. If there is an instance of an individual being prosecuted by the ICJ [aka the World Court], [I can’t find it.](http://www.icj-cij.org/icjwww/idecisions.htm) Can you? ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [November 3, 2005, 8:12pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/35 "2005-11-03T20:12:35Z")
As I said before, the issue of the world court or ICC is moot. There’s no need to invoke them since the alleged perps can be tried under US law, just like Scooter Libby. In this hypothetical, the current Justice Department is under orders by the President to investigate the previous administration. A real-world example would be South Africa…the current South African government has prosecuted lots of officials from the former regime who didn’t take the Truth and Reconciliation commitee amnesty offer. If we hold that every war is either “provoked” or “unprovoked”, then the obvious conclusion is that at least one side in every war is guilty of the war crime of aggression. Slobodan Milosevic is the only person to be charged under this theory since the Nuremburg trials. How many wars have their been since then? ---
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [November 3, 2005, 8:14pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/36 "2005-11-03T20:14:32Z")
> [@Ravenman](#): > > The ICC has what is basically extraterritoriality provisions so that individuals from non-signatory nations could be subject to prosecution. This means that the ICC is supposed to have jurisdiction even over non-signatories. There is a wrinkle that states can sign agreements among each other not to refer persons of other like-minded nations to the ICC for prosecution. The US has created quite a number of these Article 98 agreements, including with Iraq and Afghanistan, to the best of my recollection. I am not sure that such an agreement prohibits the US from turning over one of its own citizens to the ICC; it would prohibit Iraq from bringing a case against a US person.? [http://www.un.org/ecosocdev/geninfo/afrec/vol12no2/warcourt.htm](http://www.un.org/ecosocdev/geninfo/afrec/vol12no2/warcourt.htm) > [@](#): > > Under track one, the Security Council, acting under Chapter VII of the UN Charter, can refer situations that threaten or disrupt international peace to the Court for investigation. All states would be bound to comply with court orders for evidence or the surrender of indicted persons, and court orders could be enforced by the Security Council through embargoes, freezing the assets of leaders and supporters, and the use of force. This track would most likely be utilized in conflicts similar to those in former Yugoslavia or Rwanda. > Under the second track, situations would be referred to the Court by individual countries or the ICC Prosecutor. This track, which relies on the good-faith cooperation of the parties to the Court’s Statute, has a number of restrictions attached: > [ul] > [li]The Court’s jurisdiction would be based on a concept known as “complementarity,” meaning the Court could act only when domestic authorities of the countries involved are unable or unwilling to prosecute. [/li][li]Either the state in which the crime was committed or the state of which a national allegedly committed the crime must be a party to the treaty or have granted its voluntary consent to the Court’s jurisdiction. \*\*However, the ICC can exercise jurisdiction over the nationals of states that are not parties if they have allegedly committed crimes in a country other than their own and if that country decides to turn the suspects over to the Court. \*\* [/li][li]The Security Council may vote to postpone an investigation or case for up to 12 months, on a renewable basis, as long as no permanent member vetoes such a postponement. [/li][/ul] Track one is _a priori_. The SC could do that to anyone without the ICC. Track two could not address crimes committed within the US. Iraq or Afghanistan could put charges before the ICC, but that doesn’t give the President any additional powers. The US still wouldn’t recognize the jurisdiction… [/QUOTE] I don’t think the ICJ does what you think it does. If there is an instance of an individual being prosecuted by the ICJ [aka the World Court], [I can’t find it.](http://www.icj-cij.org/icjwww/idecisions.htm) Can you? [/QUOTE] Notice how I emphasized “could”. I don’t think the World Court would take the case either. My point was that the UN’s World Court is the only established court that the US is constitutionally a binding party to. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 3, 2005, 8:16pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/37 "2005-11-03T20:16:15Z")
> [@Lemur866](#): > > There’s no need to invoke them since the alleged perps can be tried under US law, just like Scooter Libby. Which specific law or laws would that be? I think the OP invoked those other options because he realizes US law isn’t going to help him. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 3, 2005, 8:39pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/38 "2005-11-03T20:39:20Z")
> [@John Mace](#): > > Which specific law or laws would that be? > > I think the OP invoked those other options because he realizes US law isn’t going to help him. No, I invoked it because I wanted to cast a wide net, and I suspected there might be US laws relating to immunity of Administration officials for conduct in office that might get them off the hook. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [November 3, 2005, 8:39pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/39 "2005-11-03T20:39:39Z")
> [@AFAIKnow](#): > > Notice how I emphasized “could”. I don’t think the World Court would take the case either. My point was that the UN’s World Court is the only established court that the US is constitutionally a binding party to. No, the World Court could NOT prosecute individual people. Article 34 of the Statute of the International Court of Justice states: “Only states may be parties in cases before the Court.” QED. ---
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [November 3, 2005, 8:41pm UTC](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304/40 "2005-11-03T20:41:49Z")
> [@Ravenman](#): > > No, the World Court could NOT prosecute individual people. Article 34 of the Statute of the International Court of Justice states: “Only states may be parties in cases before the Court.” QED. Well, there you go. Seems Bush is safe from a future admin. [Previous page](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304.md?page=1) [Next page](https://boards.straightdope.com/t/could-a-sitting-president-send-past-administration-officials-to-the-world-court/329304.md?page=3)