Re: Sorta OT, but military related question, War Crimes

[Pierre-Henri Baras]

> And at least one is several hundred years old and largely
> not written down, which keeps the lawyers happy :)
>

I always admired the british legal system:
Barristers + Sollicitors= twice the $ + twice opportunities to screw the
clients.... ;-)

PHB

[Fred the Red Shirt]

Howard Berkowitz > wrote in message >...
> In article >,
> (Fred the Red Shirt) wrote:
>
> > Howard Berkowitz > wrote in message
> > >...
> > > In article >, "Pierre-Henri
> > > Baras" > wrote:
> > >
> > > > "OXMORON1" > a écrit dans le message de news:
> > > > ...
> > > > > Last night while doing my weekly drive through the Ozarks, I heard
> > > > > a
> comment on
> > > > > a radio program along the lines of "There is no statute of
> > > > > limitations
> > > > > on
> war
> > > > > crimes"
> > > > > Not being a legal expert, is this true?
> > > >
> > > > Yep, along with crimes against humanity. Since a 1968 UN treaty.
> > >
> > > There might be a fairly strong defense against extradition. Wouldn't
> > > trying someone under a 1968 treaty, for acts in the sixties or
> > > seventies, violate the prohibition against ex post facto laws?
> >
> > An ex post facto law is a law that criminalizes past acts. Thus a
> > change to or elimination of a statute of limititations, even a
> > retroactive one, cannot be an ex post facto law because it would
> > not criminalize past acts, it would only remove a barrier to
> > prosecution of past acts that were already, at the time, illegal.
>
> As I said, ex post facto. The Constitution and US Code did not have
> provisions about trial for war crimes. Civil murder, yes. Provisions in
> the UCMJ, yes.

I fail to see your point. Is it not all but certain that any American
charged with a war crime will be charged with something that was
already a crime under the US code prior to 1968?

> >
> > People often confuse the concepts of ex post facto and retroactive.
> >
> > Also note that some of the 'sixties' and all of the 'seventies'
> > post-date 1968.
>
> Point to either;
> 1. A section of US code that criminalizes the presidential actions
> being criticized,

First, please explain what presidential actions are being criticized.


> I repeat. Ex post facto, because the acts in question are not criminal
> in US code.

The question as it appeard in rec.aviation.military was a general one,
not related to any specific acts by any specific person.

> Even were a president impeached and convicted, that still
> doesn't make the treaty the superior document.

So I dunno where you're coming from here.

--

FF

[Fred the Red Shirt]

Howard Berkowitz > wrote in message >...
>
>
> ... has occasionally been upheld with respect to
> regular legislation, but I find it inconceivable that either the Supreme
> Court, or the political system in general, would accept that any treaty
> overrode specific Constitutional language. A Constitutional amendment
> would be needed.

I think you will find that in general when the US ratifies a treaty it
does so conditionally and with exceptions, in particular excepting any
part of the treaty that conflicts with the US Constitution, after all,
the US Senate does not have the authority to override the US Constitution.

--

FF

[Howard Berkowitz]

In article >,
(Fred the Red Shirt) wrote:

> Howard Berkowitz > wrote in message
> >...
> > In article >,
> > (Fred the Red Shirt) wrote:
> >
> > > Howard Berkowitz > wrote in message
> > > >...
> > > > In article >, "Pierre-Henri
> > > > Baras" > wrote:
> > > >
> > > > > "OXMORON1" > a écrit dans le message de news:
> > > > > ...
> > > > > > Last night while doing my weekly drive through the Ozarks, I
> > > > > > heard
> > > > > > a
> > comment on
> > > > > > a radio program along the lines of "There is no statute of
> > > > > > limitations
> > > > > > on
> > war
> > > > > > crimes"
> > > > > > Not being a legal expert, is this true?
> > > > >
> > > > > Yep, along with crimes against humanity. Since a 1968 UN treaty.
> > > >
> > > > There might be a fairly strong defense against extradition.
> > > > Wouldn't
> > > > trying someone under a 1968 treaty, for acts in the sixties or
> > > > seventies, violate the prohibition against ex post facto laws?
> > >
> > > An ex post facto law is a law that criminalizes past acts. Thus a
> > > change to or elimination of a statute of limititations, even a
> > > retroactive one, cannot be an ex post facto law because it would
> > > not criminalize past acts, it would only remove a barrier to
> > > prosecution of past acts that were already, at the time, illegal.
> >
> > As I said, ex post facto. The Constitution and US Code did not have
> > provisions about trial for war crimes. Civil murder, yes. Provisions in
> > the UCMJ, yes.
>
> I fail to see your point. Is it not all but certain that any American
> charged with a war crime will be charged with something that was
> already a crime under the US code prior to 1968?

The point may have been lost in the thread. I was referring specifically
to proposals that George W. Bush be extradited to The Hague to face
unspecified "war crimes" trial. While I don't generally support him
politically, I also don't see his actions as rising to "war crime".
There really isn't such a thing as "war crime" except under the UCMJ, to
which he is not subject.

I think you will find very little that could have been charged as a
crime under USC or UCMJ not already tried by US courts. I see no reason
why the ICC would get first crack.
>
> > >
> > > People often confuse the concepts of ex post facto and retroactive.
> > >
> > > Also note that some of the 'sixties' and all of the 'seventies'
> > > post-date 1968.
> >
> > Point to either;
> > 1. A section of US code that criminalizes the presidential actions
> > being criticized,
>
> First, please explain what presidential actions are being criticized.

I haven't seen any specifics. I was responding to nebulous allegations
he was a war criminal. I think he's guilty of being a mediocre
president, but that's the extent of his crimes.
>
>
> > I repeat. Ex post facto, because the acts in question are not criminal
> > in US code.
>
> The question as it appeard in rec.aviation.military was a general one,
> not related to any specific acts by any specific person.
>
> > Even were a president impeached and convicted, that still
> > doesn't make the treaty the superior document.
>
> So I dunno where you're coming from here.

We are not in disagreement. I am NOT suggesting he be charged under war
crimes. I think you misunderstand the context in which I made my
remarks. I agree that a treaty does not trump the US Constitution.
That may not be popular with Europeans, but it is US political reality.

[Howard Berkowitz]

In article >,
(Fred the Red Shirt) wrote:

> Howard Berkowitz > wrote in message
> >...
> >
> >
> > ... has occasionally been upheld with respect to
> > regular legislation, but I find it inconceivable that either the
> > Supreme
> > Court, or the political system in general, would accept that any treaty
> > overrode specific Constitutional language. A Constitutional amendment
> > would be needed.
>
> I think you will find that in general when the US ratifies a treaty it
> does so conditionally and with exceptions, in particular excepting any
> part of the treaty that conflicts with the US Constitution, after all,
> the US Senate does not have the authority to override the US
> Constitution.


Yes, agreed. Why are we in violent agreement?

[B2431]

>From: (Peter Stickney)


>
>Howard, that's nonsense. There is no such thing as a formal
>Declaration of War. There never has been.

Better read the Constitution where it says only Congress has the authority to
declare war. They have done this exactly six times: Revolution, 1812, Mexican,
Civil, Spanish-American, WW1 and WW2.

As for formal declarations nations/states have been doing just that for a few
millenia.

Dan, U.S. Air Force, retired

[Dweezil Dwarftosser]

Howard Berkowitz wrote:
>
> In article >, (Peter
> Stickney) wrote:
>
> > Howard, that's nonsense. There is no such thing as a formal
> > Declaration of War. There never has been.
>
> Oh.

There is no specific wording required (by the constitution)
of a declaration of war - as is clearly found in Congress'
SR 23(joint) resolution of 13 Sept 2001 declaring war upon
stateless international terrorism, those who support it,
and all who have harbored terrorists.

For the first time, this particular 'formal' declaration of
war identified the enemy by his actions, rather than naming
a specific state. (For obvious reasons.)
In every other respect, it is no different from earlier
declarations. (Well... one other: the wily congresscritters
phrased it in such a way that if things went great, they could
claim credit for their foresight - and if popularity polls
showed any sort of lag in popular support, they could blame it
all on the executive branch.)

[Peter Stickney]

In article >,
(B2431) writes:
>>From: (Peter Stickney)
>
>
>>
>>Howard, that's nonsense. There is no such thing as a formal
>>Declaration of War. There never has been.
>
> Better read the Constitution where it says only Congress has the authority to
> declare war. They have done this exactly six times: Revolution, 1812, Mexican,
> Civil, Spanish-American, WW1 and WW2.

Uhm, nobody has said that they aren't the authority. But people miss
teh point on just what a Declaration of War is. The short version is
this. If Congress passes a law stating that the President (Executive)
has the authority to use force on somebody, that's a Declaration of
War. If they vote money to support these operations, that's a
declaration that a State of War exists. If somebody else declares war
on us, in whatever colorful way their culture or personality dictates,
then a State of War exists. You don't have to say "This is a
Declaration of War", and file it with the Hague. You state that
there's a perceived need to use force on somebody, and that it's
O.K. with you.

And, uhm, I'd brush up on some history, too - Y'see, the United States
Congress, with the powers it has, didn't exist until the 1790s. The
Revolution had been over for about 10 years. The Continental Congress
didn't do any War Declaring - the Revolution had been brewing since
the end of teh French & Indian War (7 Years War for the Euros), and
ignited in either late 1774 (The taking of Fort Willian & Mary in
Portsmouth Harbor, where the colonials not only captured to Fort, but
took the artillery and munitions.) or early 1775. (When the Brits got
a tip that said munitions were being held at Concord, Massachusetts,
and went to go get them.)
You also seem to ahve missed the Barbary Coast War, as well, when we
de3cided that since we couldn't affort to bribe the
Pirates/Governments in what is now Libya, we'd whack them, instead.
(As in the Shores of Tripoli).

> As for formal declarations nations/states have been doing just that for a few
> millenia.

Usually my marching/sailing/flying over the borders of somebody's
country, and whacking the crap out of it.

--
Pete Stickney
A strong conviction that something must be done is the parent of many
bad measures. -- Daniel Webster

[B2431]

>From: (Peter Stickney)
>Date: 8/16/2004 9:17 AM Central Daylight Time
>Message-id: >
>
>In article >,
> (B2431) writes:
>>>From: (Peter Stickney)
>>
>>
>>>
>>>Howard, that's nonsense. There is no such thing as a formal
>>>Declaration of War. There never has been.
>>
>> Better read the Constitution where it says only Congress has the authority
>to
>> declare war. They have done this exactly six times: Revolution, 1812,
>Mexican,
>> Civil, Spanish-American, WW1 and WW2.
>
>Uhm, nobody has said that they aren't the authority.

Actually I was responding to a fool who said no one had the Constitutional
authourity since there was no mention in the Constitution.

But people miss
>teh point on just what a Declaration of War is. The short version is
>this. If Congress passes a law stating that the President (Executive)
>has the authority to use force on somebody, that's a Declaration of
>War. If they vote money to support these operations, that's a
>declaration that a State of War exists. If somebody else declares war
>on us, in whatever colorful way their culture or personality dictates,
>then a State of War exists. You don't have to say "This is a
>Declaration of War", and file it with the Hague. You state that
>there's a perceived need to use force on somebody, and that it's
>O.K. with you.
>
>And, uhm, I'd brush up on some history, too - Y'see, the United States
>Congress, with the powers it has, didn't exist until the 1790s.

Please note I corrected myself in a later post.

<snip>

>You also seem to ahve missed the Barbary Coast War, as well, when we
>de3cided that since we couldn't affort to bribe the
>Pirates/Governments in what is now Libya, we'd whack them, instead.
>(As in the Shores of Tripoli).

No declaration of war. They voted funds.

>
>> As for formal declarations nations/states have been doing just that for a
>few
>> millenia.
>
>Usually my marching/sailing/flying over the borders of somebody's
>country, and whacking the crap out of it.

I'm sure you have done that many times.

>--
>Pete Stickney

Dan, U.S. Air Force, retired

[Peter Stickney]

In article >,
(B2431) writes:
>>From: (Peter Stickney)
>>Date: 8/16/2004 9:17 AM Central Daylight Time
>>Message-id: >
>>
>>In article >,
>> (B2431) writes:
>>>>From: (Peter Stickney)
>>>
>>>
>>>>
>>>>Howard, that's nonsense. There is no such thing as a formal
>>>>Declaration of War. There never has been.
>>>
>>> Better read the Constitution where it says only Congress has the authority
>>to
>>> declare war. They have done this exactly six times: Revolution, 1812,
>>Mexican,
>>> Civil, Spanish-American, WW1 and WW2.
>>
>>Uhm, nobody has said that they aren't the authority.
>
> Actually I was responding to a fool who said no one had the Constitutional
> authourity since there was no mention in the Constitution.

I'm confused, here. As far as I can tell, teh only one that you've
replied to on this thread is me. I haven't ever said that nobody has
the Constitutional Authority to declare war. What I have said, )as I
keep distilling it) is that there is no hard and fast definition, and
certainly isn't in the Constitution, of what constitutes a
Declaration of War. You don't need a gilt-edged certificate with
"Declaration of War" embossed on it. Authorizing teh use of force,
and supplying funds to apply that force is sufficient.

> But people miss
>>teh point on just what a Declaration of War is. The short version is
>>this. If Congress passes a law stating that the President (Executive)
>>has the authority to use force on somebody, that's a Declaration of
>>War. If they vote money to support these operations, that's a
>>declaration that a State of War exists. If somebody else declares war
>>on us, in whatever colorful way their culture or personality dictates,
>>then a State of War exists. You don't have to say "This is a
>>Declaration of War", and file it with the Hague. You state that
>>there's a perceived need to use force on somebody, and that it's
>>O.K. with you.
>>
>>And, uhm, I'd brush up on some history, too - Y'see, the United States
>>Congress, with the powers it has, didn't exist until the 1790s.
>
> Please note I corrected myself in a later post.

Indeed you did - sorry 'bout that.
>
>>You also seem to ahve missed the Barbary Coast War, as well, when we
>>decided that since we couldn't affort to bribe the
>>Pirates/Governments in what is now Libya, we'd whack them, instead.
>>(As in the Shores of Tripoli).
>
> No declaration of war. They voted funds.

You're missing the point - voting funds for the use of force _is_ a
Declaration of War. For that matter, not voting the funds, but
authorizing the use of force for whatever reason, and running it out
of Petty Cash is a Declaration of War. The key is the authorization
to use force.
Now, if we were to get into the question of Letters of Marque and
Reprisal, and the authorization of Privateers...

>>> As for formal declarations nations/states have been doing just that for a
>>few
>>> millenia.
>>
>>Usually my marching/sailing/flying over the borders of somebody's
>>country, and whacking the crap out of it.
>
> I'm sure you have done that many times.


I haven't had to. I was invited to the Gulf, Honduras, and
Cameroon. But let's ee- the various Egyptians, Greeks, Medes,
Persians, Etruscans, Romans, Byzantines, Franks, Vikings, Goths,
Arabs, Turks, Indians, Moors, Spanish, Dutch, French, English, Scots,
(I'm not aware of the Welch invading anybody) Germans, Russians,
Austro-Hungarians & what-all have certainly made that precedent quite
clear.

--
Pete Stickney
A strong conviction that something must be done is the parent of many
bad measures. -- Daniel Webster