joefromchicago wrote:. . . .The United States is a signatory to the United Nations Charter. That document recognizes that "nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations" (art. 51). Thus, the right of self defense is specifically conditioned on the occurrence of an armed attack -- no armed attack, no right to self defense. Instead, if there is a dispute between two member nations (such as the US and Iraq), they must seek peaceful means of resolving their dispute (art. 33). If those means fail, they are to bring their dispute to the Security Council (art. 37), which is to make recommendations, including referring the dispute to the World Court (art. 36). Only if its recommendations are inadequate or ineffective is the Security Council then permitted to authorize coercion (art. 41) or force (art. 42) as a means of resolving the dispute.
In the case of the present conflict, the US was never attacked by Iraq. As such, the US had no claim to a right of self defense, under article 51 of the UN Charter, as a pretext to attack Iraq. It was, therefore, obligated to seek peaceful means to resolve the dispute, and, if necessary, to refer the dispute to the UN for resolution. The US submitted the dispute to the UN, but the UN Security Council never authorized the use of force (pursuant to article 42 of the Charter) for resolving the dispute. Indeed, the US never sought UN authorization for its use of force, despite Bush's promise to the contrary.
The US is obligated, both by international law and the US constitution, to abide by the terms of its treaties. The UN Charter is such a treaty. The attack on Iraq, therefore, violated the terms of the UN Charter. And since the US was the aggressor, and the war was a breach of the peace, the invasion constituted a war of aggression and a crime against the peace. Furthermore, pursuant to the precedent set by the Nuremberg war crimes tribunal, the leaders of a nation that has waged a war of aggression are directly culpable for the resulting war crimes.
The conclusion, therefore, is obvious: George Bush, in launching a war of aggression in contravention of binding international treaties, is guilty of a crime against peace, and he should be held accountable for that crime.
. . .
I agree with Joe. The president is not immune to a prosecution for war crimes. See, e.g., the following:
Former president to face war crimes court
Quote:January 17 2003. Serbian officials will hand over former president Milan Milutinovic to the UN war crimes tribunal at The Hague, the Yugoslav foreign minister said yesterday.
Goran Svilanovic told the Blic daily newspaper that he and Milutinovic agreed on the terms of his surrender to the court, which has charged him with war crimes during a government crackdown against Kosovo Albanians in 1999.
Svilanovic did not say when he could be handed over. He said he hoped the UN tribunal would set Milutinovic free pending the start of his trial partly because of his poor health.
Milutinovic has had two heart operations in recent years.
Though regarded as merely a figurehead, Milutinovic, who was Serbia's president from 1997 until last month, was a member of the inner circle of former Yugoslav President Slobodan Milosevic.
Milutinovic has denied he had any role in war crimes in Kosovo, saying that he had no control over the Serb-led security forces in the southern Yugoslav province.
Any testimony he might offer could prove damaging to Milosevic, who is facing genocide and other war crimes charges before the UN court.
President Bush ordered a preemptive attack against Iraq in violation of a treaty (the supreme law of the Land.) He broke the law, plunged our country into war, and must be held accountable. The U.N. War Crimes Tribunal ought to be demanding Bush's surrender.
Ticomaya wrote:I sincerely doubt a reasonable reading of the Constitution would require the US to abide by the terms of a treaty if to do so would not be in the best interests of national security.
United States Constitution:
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.
Perhaps not LEGALLY immune - but, sadly - PRACTICALLY immune - no?
Unless your own courts were to do it?
As far as I know the US has, very deliberately, refused to acknowledge the legitimacy of any world court - at least when it comes to subjecting itself, rather than any other country, to its powers?
If so, how does this gel with its supporting Milosevic's trial???
Well, I think Johnson and Nixon were considered by many to be guilty of war crimes, were they not?
(Thanks for clearing up my dumb confusion, Joe - now - what does the US see as the difference between the two courts????)
I suppose, given its premise, that this thread is now moot.
Boy, that would sure be a good way to end an otherwise nice relationship.
Published on Tuesday, November 16, 2004 by the Toronto Star
Should Canada Indict Bush?
by Thomas Walkom
When U.S. President George W. Bush arrives in Ottawa � probably later this year � should he be welcomed? Or should he be charged with war crimes?
It's an interesting question. On the face of it, Bush seems a perfect candidate for prosecution under Canada's Crimes against Humanity and War Crimes Act.
This act was passed in 2000 to bring Canada's ineffectual laws in line with the rules of the new International Criminal Court. While never tested, it lays out sweeping categories under which a foreign leader like Bush could face arrest.
In particular, it holds that anyone who commits a war crime, even outside Canada, may be prosecuted by our courts. What is a war crime? According to the statute, it is any conduct defined as such by "customary international law" or by conventions that Canada has adopted.
War crimes also specifically include any breach of the 1949 Geneva Conventions, such as torture, degradation, wilfully depriving prisoners of war of their rights "to a fair and regular trial," launching attacks "in the knowledge that such attacks will cause incidental loss of life or injury to civilians" and deportation of persons from an area under occupation.
Outside of one well-publicized (and quickly squelched) attempt in Belgium, no one has tried to formally indict Bush. But both Oxfam International and the U.S. group Human Rights Watch have warned that some of the actions undertaken by the U.S. and its allies, particularly in Iraq, may fall under the war crime rubric.
The case for the prosecution looks quite promising. First, there is the fact of the Iraq war itself. After 1945, Allied tribunals in Nuremberg and Tokyo � in an astonishing precedent � ruled that states no longer had the unfettered right to invade other countries and that leaders who started such conflicts could be tried for waging illegal war.
Concurrently, the new United Nations outlawed all aggressive wars except those authorized by its Security Council.
Today, a strong case could be made that Bush violated the Nuremberg principles by invading Iraq. Indeed, U.N. Secretary-General Kofi Annan has already labelled that war illegal in terms of the U.N. Charter.
Second, there is the manner in which the U.S. conducted this war.
The mistreatment of prisoners at Iraq's Abu Ghraib prison is a clear contravention of the Geneva Accord. The U.S. is also deporting selected prisoners to camps outside of Iraq (another contravention). U.S. press reports also talk of shadowy prisons in Jordan run by the CIA, where suspects are routinely tortured. And the estimated civilian death toll of 100,000 may well contravene the Geneva Accords prohibition against the use of excessive force.
Canada's war crimes law specifically permits prosecution not only of those who carry out such crimes but of the military and political superiors who allow them to happen.
What has emerged since Abu Ghraib shows that officials at the highest levels of the Bush administration permitted and even encouraged the use of torture.
Given that Bush, as he likes to remind everyone, is the U.S. military's commander-in-chief, it is hard to argue he bears no responsibility.
Then there is Guantanamo Bay. The U.S. says detainees there do not fall under the Geneva accords. That's an old argument.
In 1946, Japanese defendants explained their mistreatment of prisoners of war by noting that their country had never signed any of the Geneva Conventions. The Japanese were convicted anyway.
Oddly enough, Canada may be one of the few places where someone like Bush could be brought to justice. Impeachment in the U.S. is most unlikely. And, at Bush's insistence, the new international criminal court has no jurisdiction over any American.
But a Canadian war crimes charge, too, would face many hurdles. Bush was furious last year when Belgians launched a war crimes suit in their country against him � so furious that Belgium not only backed down under U.S. threats but changed its law to prevent further recurrences.
As well, according to a foreign affairs spokesperson, visiting heads of state are immune from prosecution when in Canada on official business. If Ottawa wanted to act, it would have to wait until Bush was out of office � or hope to catch him when he comes up here to fish.
And, of course, Canada's government would have to want to act. War crimes prosecutions are political decisions that must be authorized by the federal attorney-general.
Still, Prime Minister Paul Martin has staked out his strong opposition to war crimes. This was his focus in a September address to the U.N. General Assembly.
There, Martin was talking specifically about war crimes committed by militiamen in far-off Sudan. But as my friends on the Star's editorial board noted in one of their strong defences of concerted international action against war crimes, the rule must be, "One law for all."
Thomas Walkom writes every Tuesday for the Toronto Star Tribune.