Can Lawyers Be War Criminals?

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

The CAT does not prohibit complicity in cruel, inhuman, and degrading treatment. Article 16 mandates that states "shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture."145 Under its domestic law, therefore, a state may choose to prosecute not only those who commit acts of cruel, inhuman, or degrading treatment but those who aid and abet these acts. However, there is no universal jurisdiction for cruel, inhuman, or degrading treatment. In other words, under the CAT, states are not required to prosecute or extradite for cruel, inhuman, or degrading treatment, whereas extradition or prosecution is mandatory for torture.146

Because of this, Yoo and Bybee can only be prosecuted under the CAT to the extent that their crimes rise to the level of complicity or participation in torture, not in cruel, inhuman, or degrading treatment.147 To be prosecuted for cruel, inhuman, and degrading treatment, Yoo and Bybee-or other lawyers like them-would have to be physically present in the territory of a country where the crimes were actually committed, and the state's domestic law would have to go beyond what the CAT requires. The country's domestic law would have to explicitly criminalize complicity in cruel, inhuman, or degrading treatment.

Yoo and Bybee would be liable for complicity or participation in torture148 if the Torture Memo is read to endorse torture. A court would likely have to conclude that the Memo's discussion of defenses like necessity and selfdefense-as well as Yoo and Bybee's attempt to re-categorize acts of torture as 'mere' cruel, inhuman, or degrading treatment-led to the commission of acts of torture. Moreover, the court prosecuting Yoo and Bybee would have to conclude that the lawyers had the requisite mens rea. Of course, countries will have different legal standards and burdens of proof for determining mens rea. However, it still might be easier to mount a prosecution under the CAT than one under the ICC Statute. This is because the mens rea required for complicity is not specified in the CAT; rather, its determination is left to domestic courts. The ICC Statute, as I have noted in this Essay, does not have a separate crime of complicity in torture, and the mens rea required for accomplice liability is purpose or knowledge.149 Therefore, many state-parties to the CAT would likely hold Yoo and Bybee liable as long as the lawyers disregarded the possibility that the Torture Memo would lead individual interrogators to commit acts of torture.150 What is most important, however, is that American lawyers could be prosecuted even if their actions were perfectly consistent with U.S. law.

The Pinochet precedent, as Philippe Sands has suggested,151 is highly relevant on this point. General Pinochet was charged by the Spanish government with complicity in torture and other war crimes.152 Chile, where most of the alleged acts occurred, did not believe that the General should be prosecuted and fought his extradition to Spain.153 Indeed, under Chilean law, General Pinochet enjoyed complete immunity pursuant to a general amnesty.154 General Pinochet was arrested in London pursuant to the Spanish warrant, and the question for the House of Lords was whether the United Kingdom was bound by Chilean law and required to afford the General immunity from both prosecution and extradition. The House concluded that it was not, noting that "[m]unicipal law cannot be decisive ... If it were a determining factor, the most abhorrent municipal laws might be said to enlarge the functions of a head of state."155 The House further noted that, regardless of what domestic law said about the powers and liabilities of General Pinochet, "international law has made plain that certain types of conduct, including torture ... are not acceptable conduct on the part of anyone. This applies as much to heads of state ... as it does to everyone else; the contrary conclusion would make a mockery of international law."156