NickFaust said:
You are making a constitutional argument about a purported criminal matter. To say that the President exceeded his authority, under the UN charter, in invading and occupying Iraq, does not make it a criminal matter. It may make it a violation of the UN Charter, but violating the UN Charter is not a "crime". A crime implies the violation of some criminal or statutory code, something that simply does not exist in this situation. And since the US is not a signatory to the ICC, there is no basis on which to charge it or its leaders with crimes at the Hague.

In short, no, the war is no illegal. Immoral, inappropriate, insane, but not illegal.

Well, no - that's neither what I said, nor is it what I meant.

Under Article VI, treaty obligations are "the supreme law of the land." By prosecuting a war in contravention of the UN Charter (which requires authorization - which we didn't get), we have violated a treaty. Therefore we have violated "the supreme law of the land." Which is, by definition, illegal.

It would only be a criminal act if there were an applicable criminal statute, with criminal penalties, that fobids it. And I never used the word "criminal."

That might make it unconsitutional. It does not make it illegal. And, in order for someone to be brought before a tribunal, there needs to be a specific charge. It cannot be "violated the law of the land." At least now that the Soviet Union is defunct. (I say that because this language begins to sound like "crimes against the state" to me.)

So, you say you are not talking about "criminal" but if you are talking about anything other than a civil action, there is no basis on which to have a trial, or to bring "charges" as the Consitution does not prescribe penalties etc. That is what a criminal code does. Which was my original point.

NickFaust

USA

April 2004

JUN 08, 2007 05:10 AM

skeptik said:
So the question remains.
"Now, who's going to enforce that particular law?"

It is not a "law," it is an article in the Consitution. "Enforcement" implies violation of some aspect of a code.

There is no "enforcement" language in the Constitution. The only access to the courts would be through a civil action.

NickFaust

USA

April 2004

JUN 08, 2007 05:12 AM

oyaji said:

NickFaust said:

oyaji said:

Waging aggressive war is a war crime. People have been tried and convicted for it, whether or not the governments they represented or the countries of which they were nationals were signatories to any particular treaty.

Well, A) this is only true in ICC, which the US is not a part of but, B) the assertion that this is an "agressive" war would have to be proven, and C) the US said, and will say, that they war was fought because Iraq posed a threat do to its being out of compliance with UN resolutions.

All of which is moot becuase any scenario in which the US goes on trial in the Hague is pure fantasy.

I agree that it's moot since it's unlikely that any tribunal will wind up adjudicating charges against anyone in the Bush administration. But it's misleading to say that it would only apply if we were subject to the ICC. War crimes tribunals may be constituted more or less at any time.

That is true. They may also be ignored at any time.