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Can Lawyers Be War Criminals?
Georgetown Journal of Legal Ethics, The, Spring 2007 by Markovic, Milan
In any case, at a minimum, Yoo and Bybee purposely facilitated the commission of the war crime of "outrages upon personal dignity."135 The Bush administration's position has been that the Convention Against Torture does not prevent the cruel and degrading treatment of aliens held overseas.136 This explains, for example, why detainees captured in the War on Terror have been held at Guantanamo Bay in Cuba and not within the United States proper, and why the administration sought Yoo and Bybee's exact construction of the torture statute. Thus, the administration planned to inflict some cruel, inhuman, or degrading treatment on detainees, and by redefining much of what would normally be considered torture as cruel, inhuman, or degrading treatment,137 Yoo and Bybee gave the administration as much latitude as possible in conducting interrogations. Giving the administration leeway to use aggressive interrogation techniques was a specific goal of Yoo and Bybee because they believed that extreme tactics were necessary to prevent a repeat of September llth.138 And, even if they did not purposely encourage the use of such tactics, at the very least they wrote the Torture Memo with the knowledge that the Administration was likely to authorize their use by CIA interrogators. Indeed, the ICC Statute defines knowledge as "awareness that a circumstance exists or a consequence will occur in the ordinary course of events,"139 and because the Memo was written to help CIA interrogators with extracting information from otherwise uncooperative detainees like Abu Zubaydah,140 Yoo and Bybee would be hard-pressed to argue that they did not expect the administration to make use of the full arsenal of cruel, inhuman, or degrading tactics deemed permissible in the Torture Memo.
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Under the ICC Statute, therefore, Yoo and Bybee could be tried as accomplices to outrages upon personal dignity and perhaps for torture. I doubt very much that Yoo and Bybee expected that their actions ran afoul of the ICC Statute when they wrote the Memo but, as I have attempted to show in this Essay, the notion of accomplice liability under the ICC Statute allows for the potential prosecution of U.S. lawyers insofar as they are implicated in war crimes.
B. PROSECUTIONS BY STATE PARTIES TO THE CAT
The Convention Against Torture also allows for the prosecution of lawyers as accomplices to war crimes. Article 4 of the CAT prohibits "complicity in torture," and Article 5(2) demands that "[e]ach State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him."141 In Exporte Pinochet Ugarte, Spain attempted to secure the extradition of August Pinochet, the former Chilean dictator. To extradite Mr. Pinochet, the British courts had to first determine whether Mr. Pinochet was complicit in war crimes.142 In its decision, the House of Lords determined that Mr. Pinochet was complicit in torture and stated, "If... states do not choose to seek extradition or to prosecute the offender, other states must do so. The purpose of the Convention was to introduce the principle out dedere aut punire-either you extradite or you punish."143 The CAT treats torture as a crime of universal jurisdiction, and by seeking Pinochet's extradition from England for crimes he committed in Chile, the Spanish government was acting pursuant to its obligation to prosecute torture wherever it occurs.144
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