A site visitor asked us the following question:
Could the President of the United States be held liable for war crimes in Iraq?
To answer that question we need to consider first the general question of liability of heads of states for war crimes, and then to address the specific issue of liability for war crimes of presidents of the United States of America.
“War” is an act of occupation of territory or/and destruction of people and/or property of a country without permission of the government of that country by persons of another country on the orders of the government of that other country.
Being an act of wilful violence, a war can be justified only on the following grounds:
And in all the above cases the violence should be restricted to the necessary minimum, and can be resorted to only, if there are no legal peaceful ways (the UN, etc) of achieving the above objectives.
War for any other reasons, than listed above, is crime.
The above is based on the principles of natural justice, as summarized in the Principles of the WCJ.
The WCJ, however, has a purely declarative jurisdiction, and has no mechanisms for enforcing its decisions. So for any practically enforcible legal rulings one is left with the International Criminal Court or the national courts of nation states.
The International Criminal Court (ICC) is a permanent court capable of investigating and trying individuals accused of the most serious violations of international humanitarian and human rights1 law, namely war crimes, crimes against humanity, and genocide. Its jurisdiction is not retroactive, that is, it cannot consider cases which took place before the ICC started its operation.
The International Criminal Court has been created on the basis of the Rome Statute, which entered into force on 1 July 2002.
Not all the nation states have agreed to submit themselves to the jurisdiction of that court — one of such nation states is the USA.
At present the ICC is still not functioning, but is electing its judges, and seeking to get recognition from the USA, and other nations.
Thus at present the ICC would not be able to try a citizen of the USA, and certainly not its president.
A war started without justification is a crime not only against the attacked nation, but also against the people of the attacking country itself. The government, which has started such war is also guilty of bringing about deaths of its own citizens, as well as of causing destruction and waste of the attacking country's national assets. An unjustified war can also involve abuses of the powers to tax, misuse of public funds, and abuses of government powers. In accordance with principles of natural justice — all these are crimes. Whether they are crimes in accordance with the existing laws of a particular country is a different, but practically important, question.
Investigation of the legal possibilities of indicting a head of state in accordance with the national laws of his own country is a time consuming task which is beyond the scope of the activities of the WCJ. And it is up to those interested in such matter to undertake that task.
The WCJ can, however, review cases, which, having passed through all the due stages of the legal process of a national legal system, are believed to have failed to achieve a just decision.
At present there are no supra‐national courts which have sufficient jurisdiction to try a president of the USA for war crimes and to have any practical means of enforcing their decision.
The WCJ can consider such case, but cannot enforce its decisions, the ICC is not yet functional and the USA is beyond its jurisdiction.
The only option left is to investigate the legal possibilities available within the American legal system itself, such as abuses of power, causing deaths of US citizens without valid reason, misuses of public funds, taxation under false pretenses, etc. Investigation and use of such possibilities can be time consuming and is likely to require considerable legal skills. But, if such legal possibilities exist, then their proper use would be an important contribution towards maintenance of integrity of the American system of government, and of protection of the freedom of the People against abuses of power by the Executive.
1) There are substantive differences between the legal philosophy of the WCJ and of the ICC. The WCJ uses the Natural Justice approach, as summarized in its principles, while the ICC uses the Human Rights approach, which is a creature of politics. The WCJ sees government as having no rights but only duties. ICC sees government as having arbitrary powers, but with the limitation of not violating certain rights, which the government has conceded to the people as a result of political struggles. As applicable to wars, the WCJ would see any war without justification as crime, the ICC will see a war as crime only if it is accompanied by certain excesses, mostly against civilians. As a rough guide WCJ sees any abuse of government powers as crime, ICC would see governments committing crimes only if their actions involve excessive brutalities.