L. Ali Khan (Washburn University School of Law) has posted War Crimes or Crimes against Humanity: The Unaccountability of the U.S. President on SSRN. Here is the abstract:
The modern United States presidency has evolved into an office with extraordinary powers that, in matters involving the use of force and international law, is insulated from meaningful domestic and international accountability. The paper introduces the Presidential Hexagon, a theoretical framework that identifies six interlocking dimensions that collectively produce presidential unaccountability: (1) singular executive authority, (2) the president’s status as the sole organ of foreign affairs, (3) commander-in-chief authority over the world’s most powerful military, (4) absolute immunity for core official acts, (5) the structural ineffectiveness of impeachment, and (6) legal and political obstruction of international criminal justice.
The article demonstrates how constitutional, statutory, judicial, and political mechanisms reinforce one another, creating a self-sustaining architecture of executive power. It analyzes the expansion of presidential authority through judicial doctrine, congressional delegations of war powers, the Supreme Court’s presidential immunity jurisprudence, and domestic measures intended to impede the International Criminal Court’s jurisdiction. It further examines the limited effectiveness of impeachment, the practical constraints posed by institutional resistance within the executive branch, and the growing influence of wealthy donors on presidential foreign policy.
The article argues that although the Rome Statute formally rejects immunity for heads of state, practical barriers—including U.S. domestic law, Security Council veto power, bilateral immunity agreements, and statutory protections—make international accountability for U.S. presidents highly unlikely. It concludes that the principal challenge is not to reduce presidential power but to restore credible legal accountability for the exercise of presidential power in matters involving war, international humanitarian law, and crimes against humanity. The Presidential Hexagon offers a new conceptual framework for understanding the constitutional and international dimensions of executive power in the twenty-first century.
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