Can Lawyers Be War Criminals?

Georgetown Journal of Legal Ethics, The, Spring 2007 by Markovic, Milan

The ICC regards torture as both a crime against humanity and a war crime,121 and the ICC Statute criminalizes the commission of "other inhumane acts ... causing great suffering, or serious injury to body or to mental or physical health" as a crime against humanity and "outrages upon personal dignity, in particular humiliating and degrading treatment" as war crimes.122 Responsibility extends not only to principals, but also to anyone who, "[f]or the purpose of facilitating such a crime, aids, abets or otherwise assists in its commission or attempted commission"123 or "[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose."124 The ICC Statute, therefore, clearly criminalizes both acts of torture and of cruel and degrading treatment, 125and liability under the ICC Statute extends not only to those who directly commit the acts, but also to accomplices and facilitators, including lawyers.

The ICC Statute does have some requirements for an action to be either a "crime against humanity" or a war crime. Under the ICC Statute, to rise to the level of a "crime against humanity," an act must have been committed as part of "a widespread and systematic attack on a civilian population."126 Furthermore, the ICC Statute defines "attack directed against a civilian population" as a "course of conduct involving the multiple commission of acts [such as murder, rape and torture] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such an attack."127 Although the United States is engaged in combat operations in Iraq and Afghanistan, U.S. military forces are not targeting civilians or engaging in a "widespread and systematic" attack on a civilian population. And because the cruel and degrading treatment and torture of detainees is not part of an effort to terrorize the civilian populations of Afghanistan and Iraq (let alone in Cuba), Yoo and Bybee could not be implicated in crimes against humanity-at least not before the ICC.

Conversely, war crimes like torture and "outrages upon personal dignity" need only to be associated with an international armed conflict.128 This element is clearly met, as the interrogations of enemy combatants are taking place against the backdrop of a transnational war with Al Qaeda-as the Bybee memo makes clear.129 Under the ICC Statute, to be an accomplice to either the war crime of torture or to "outrages upon personal dignity," Yoo and Bybee would also have to have acted with the purpose of facilitating these crimes130 or contributed to the commission of these crimes with the knowledge that the administration's intention was to commit them.131

Presumably Yoo and Bybee would respond that their purpose in writing the Memo was not to facilitate torture but rather to give the Bush administration as much flexibility as possible in Grafting aggressive interrogation procedures.132 Yoo and Bybee can further defend themselves by claiming that while they suggested possible defenses to prosecution under 18 U.S.C. § 2430(A), they did not know that the administration was in fact "planning" to commit the egregious conduct of torture.133 The ICC prosecutor would therefore have to prove that the administration did plan to torture detainees and that Yoo and Bybee either wrote the Torture Memo in order to facilitate such conduct or that they had knowledge that the administration would likely commit torture. Most commentators have noted that torture was a foreseeable consequence of the administration's policy: Yoo and Bybee must have known that some interrogators would graduate from the use of "mere" cruel, inhuman, or degrading treatment to full-blown torture.134