Is there a particular circumstance where the U.S. president can be tried for declaring war against another country? What are the criteria for the president to be tried for declaring war? Is there even a set criteria, or is the president immune in this situation no matter how or why the war was declared?

3 Answers 3


The President can’t declare war

It’s not a power given to the President, the Constitution reserves it for Congress - Article One, Section Eight:

Congress shall have power to ... declare War

Congress has declared war 11 times, the last being on June 4, 1942. Declarations of war are largely an anachronism.

However, that just begs the question ...

Is there a particular circumstance where the U.S. president can be tried for [engaing in military action] against another country?


If the President authorizes military action that is or is conducted in a manner that is against US domestic law then she can be impeached by the House and tried by the Senete.

If it is a violation of international law then she could be tried by an International War Crimes Tribunal. However, this could not be the International Criminal Court since the US does not acknowledge its jurisdiction. It would need to be a tribunal established by the UN which means not vetoed by the USA - an unlikely circumstance.

If he came into the custody of a foreign power, then they could try him under their own laws assuming they were willing to ignore the principle of sovereign immunity.

  • @@Dale M I’m not sure I follow: The ICC is founded by the UN. The ICC is a, if not, the “International War Crimes Tribunal”, and yes, the U.S. does not acknowledge the jurisdiction of it even though, if I’m not mistaken, the ICC can order an international warrant for the arrest of a person ordered to appear by the Interpol, and that is to what the U.S. said they would arrest those officers who would attempt to arrest any officials of the U.S. on U.S. territory. I don’t want to comment on that.
    – kisspuska
    Commented Jul 1, 2021 at 7:35
  • 1
    @kisspuska any action taken by ICC against any US national would effectively make its personal enemy combatants subject to American Service Members’ Protection Act. It would trigger authorization of all means (including military means) to reverse the action.
    – grovkin
    Commented Jul 1, 2021 at 9:59
  • The US doesn't stop short of not acknowledging ICC's jurisdiction. American Service Members' Protection act affirmatively denies ICC's jurisdiction and criminalizes any attempts by ICC to assert jurisdiction over any US nationals.
    – grovkin
    Commented Jul 1, 2021 at 10:12
  • 1
    Worth noting invading another country is not a war-crime per se. Heinz Guderian was a German tank general who was instrumental in Germans various military campaigns in WW2, although he was found to have always conducted himself in a manner befitting of a professional soldier. He was not even brought to trail
    – Neil Meyer
    Commented Jul 1, 2021 at 16:50
  • 1
    It is entirely possible for a invasion to happen and no war-crime to happen. Making war is not equivocal to a war crime
    – Neil Meyer
    Commented Jul 1, 2021 at 16:52

The remedy for a president overstepping their authority would be impeachment and removal from office by Congress. The trail you mention would be held by the Senate.

  • The constitution is quite explicit that the existence of the impeachment process does not prevent criminal prosecution after removal. Is there anything that does prevent it in this case?
    – phoog
    Commented Jul 1, 2021 at 8:05

If they did, and if they did without the approval of the respective body of the UN and/or if the U.S. military actually therein engaged in a war crime, the International Court of Justice at The Hague might claim jurisdiction and the U.S., as it provided before, would not acknowledge the ICC’s jurisdiction or be subjected thereto would be my wild guess.

Specifically, the ICC may issue different forms of warrants or similar notices for the arrest or detention of persons it orders to appear before it.

Last year, “Iran [] issued an arrest warrant for Trump over the killing of Qassem Soleimani, and asked Interpol to help detain him” according to a major U.S. medium.

Other than declaring that the U.S. would not be subjected to the jurisdiction of ICC, “[o]n June 11, President Donald Trump issued an executive order (E.O.) authorizing the imposition of sanctions in the form of visa/travel restrictions and asset freezes targeting International Criminal Court (ICC) officials as well as other persons that contribute to the Court’s investigations against the United States and its allies. During the announcement of the sanctions regime, Attorney General William Barr indicated that the U.S. Department of Justice initiated domestic investigations into officials at the ICC’s Office of the Prosecutor for corruption and malfeasance” according to justsecurity.org.

Furthermore, the Appeals Chambers of the ICC approved the investigation of U.S. officials ; however, the U.S. made its position

If the U.S. would be a party to the Rome Treaty on the ICC by a binding Treaty, that would mean that its decisions are the “supreme Law of the Land” (Article VI, Clause 2 of the U.S. Constitution); however, the Rome Statute of the International Criminal Court was not entered into by the U.S. as a party, it only was a signatory to the Treaties, and later withdrew.

Effectively, the hypothetical, in a form, already occurred, and we saw the outcome.

  • SCOTUS has already ruled article 6 clause 2 to mean that treaties have the force of a Federal law. This makes their effect on US citizens subject to interpretation by the US courts. American Service Members’ Protection Act explicitly makes it illegal for any US law enforcement to cooperate with ICC. ASMP authorizes all necessary means to reverse any actions taken by ICC against any US national.
    – grovkin
    Commented Jul 1, 2021 at 10:09

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .