Even for things designated as war crimes under international law, the International Criminal Court still gives priority to national justice systems.
Since the US isn’t one of the currently dwindling number of signatories, this is a hypothetical. If we were, it would still come back to the question in the OP first.
I think the priority is that if the national system prosecutes seriously THEN the ICC won’t.
Its not that the national system can be used to protect anyone.
But I think waterboarding may be a constitution issue… it happened before only because of secrecy and not because it was legal. If Trump requires tortue… he can’t since its not constitutional, no matter what law or decree is made… it will always be against the constitution.
After reading this thread, it looks to me that the constitution never really considered a situation where the POTUS simply disregards convention, and maybe even the law.
We already see, reported here, cases where the president elect is behaving badly: publically promoting an individual as British Ambassador, and [allegedly] promoting his own and his family’s commercial interests in Argentina, Japan and India.
Originally, the government sanctioned it with legal opinions that said waterboarding etc. was ok - i.e. did not violate the laws and treaties. I presume since the change of executive, there have been opinions over the last 8 years that specifically state what actions are not ok (which supercede previous ones). In light of those opinions, it would be difficult to re-opinionate that it is once again Ok, I would think - and certainly someone thinking of doing it would have to understand that whether the top dog is prosecuted or not, the people down the line involved can be.
Are non-signatories to the ICC immune from prosecution? I was under the impression that the were not, that the problem was that unless they signed, a country would not be obliged to deliver a person to the court; but if said person were to wander into a country that was a signatory, they would end up in Brussels. This was the issue kicked around about CIA torture and rendition personnel, and possibly Israeli defense personnel, if they decided to vacation in Europe.
Um…
This is one of those issues where there is a factual insight to be made, one that would fight ignorance, but in SDMB practice runs the strong risk of people declaring indignantly, “So, you’re in favor of torture, then!”
But what the hey.
The Eighth Amendment’s ban of “cruel and unusual” punishment applies only to punishments inflicted by the criminal process. Ingraham v. Wright.
Are you thinking of some other constitutional provision?
That only means that the President can’t use the power of pardon to prevent his impeachment (& subsequent removal from office); he can still pardon himself before the Senate votes to remove him office & prevent himself from ever being charged in criminal court for any federal crimes he committed before signing the pardon. This would include any offences under DC law (which would be considered state crimes in the rest of the country). Same deal if for any offences he commits in the territories like Guam or Puerto Rico.
There is at least one precedent: U.S. Grant was arrested for reckless driving a team of horses while president. He was taken to the police station and paid a fine. The arrest was made by a regular DC policeman.