Can Lawyers Be War Criminals?

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

II. ACCOMPLICE LIABILITY AND WORLD WAR II PRECEDENTS

Although Yoo and Bybee-and other lawyers like them-promulgated policies in the War on Terror, they did not directly inflict torture or cruel and degrading treatment on detainees. Yoo and Bybee can only be held liable to the extent they aided and abetted interrogators in committing war crimes. But can a lawyer who merely writes a memo be implicated as an accomplice to the war crime of torture?74 I believe that he can.

Under international law, any act that materially contributes to the perpetration of a war crime can make the actor an accomplice if the act is performed with the requisite intent.75 Yoo and Bybee may not have intended for acts of torture and cruel, inhuman, or degrading treatment to take place, but they were at minimum reckless as to the commission of such acts.76 Yoo and Bybee's recklessness in this regard appears to meet the intent requirement for aiding and abetting war crimes under international law.77 As the International Criminal Tribunal for Yugoslavia ("ICTY") expressed in Prosecutor v. Kvocka,78 "[t]he aider and abettor must. . . at least have accepted that such a commission of a crime would be a possible and foreseeable consequence of his conduct.... [I]t is not necessary that the aider or abettor know the precise crime that was intended or which was actually committed."

The precise level of contribution required for accomplice liability to attach to one's actions is a more difficult question. The trials at Nuremberg required only that an accomplice be "connected" to war crimes and crimes against humanity.79 Conversely, the ICTY has held that the participation must have had a direct and substantial effect on the commission of the offense.80 The ICTY has interpreted this to mean that "the criminal act would not have occurred in the same way had not someone acted in the role that the accused in fact assumed."81 The International Criminal Court's statute is less restrictive, stating that a person is an accomplice if he or she "aids, abets or otherwise assists in [a crime's] commission or its attempted commission" or "[i]n any other way contributes to the commission or attempted commission of such a crime."82

The ICTY has held that under international law even omissions can constitute material contribution.83 In Prosecutor v. Aleksovski, the Croatian commander of a prison during the Bosnian War was found complicit in "outrages upon personal dignity" for aiding and abetting the abuse and mistreatment of detainees.84 Although the commander did not mistreat prisoners directly and ran the prison reasonably well given the dire circumstances,85 he was present during interrogations and remained silent when detainees were mistreated, facilitating the misconduct.86 The ICTY Trial Chamber wrote, "By being present during the mistreatment, and yet not objecting ... the accused was necessarily aware that such tacit approval would be construed as a sign of his support and encouragement."87

Ordinarily we would not expect lawyers to be present when their clients commit criminal acts, and Yoo and Bybee were not present during any interrogations of suspected terrorist detainees. Moreover, it is doubtful that any interrogators actually read their memorandum. The Aleksovski court indicates that these facts are not determinative, writing, "the act contributing to the commission and the act of commission itself can be geographically and temporally distanced."88 Similar to the prison commander in Aleksovski, Yoo and Bybee appeared to encourage the cruel and degrading treatment of detainees. They did not stay silent as the administration contemplated aggressive interrogation procedures. Rather, by drafting the Terror Memo, Yoo and Bybee invited the Bush administration to push up against the torture prohibition as closely as it could89 and suggested possible defenses in the event interrogators were prosecuted for war crimes like torture.