Can Lawyers Be War Criminals?

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

In trying to distinguish Aleksovski, one could argue that the prison commander was in a position of authority, whereas Yoo and Bybee were mere lawyers without any real control over the decisions of others, including interrogators. However, this argument is belied by the fact that the Torture Memo was written in response to a specific question from the White House on interrogation procedures. The Pentagon may have formulated new interrogation procedures without the assistance of Yoo and Bybee, but it is doubtful the procedures would have been as extreme. Under international law, Yoo and Bybee are accomplices because without their involvement, interrogation policies would not have been implemented in quite the same way.90 And, as World War II precedents show, when the actions of lawyers directly impact how their clients' crimes are perpetrated, then lawyers can be held liable as accomplices.

Courts have held that individuals can be complicit in war-time conduct to the extent that they attempt to provide legal cover for illegal acts.91 Joachim Von Ribbentrop was the former German Ambassador to England92 who was charged with crimes against the peace and other offenses before the International Military Tribunal ("IMT").93 His defense was that he could not be held accountable for Nazi Germany's aggressive actions against its neighbors because Hitler misled him into believing that he was committed to peace.94 The IMT rejected this argument, noting that Von Ribbentrop had written the Foreign Office Memoranda justifying Nazi preemptive strikes against Norway, Denmark, and other countries in 1940.95 The IMT indicated that Von Ribbentrop could not distance himself from the very actions he had so aggressively supported.96 Similarly, Yoo and Bybee advanced arguments in the Torture Memo that sought to aid interrogators in circumventing both U.S. and international law by reclassifying what was previously regarded as torture to 'merely' cruel, inhuman, or degrading treatment, as well as suggesting defenses to torture.97

Von Ribbentrop was not a lawyer, but numerous lawyers were implicated in international crimes during World War II.98 Franz Schlegelberger was a distinguished jurist and head of the Reich Ministry of Justice." He participated in the enactment and enforcement of laws that persecuted Jewish and Polish populations in German-occupied territories.100 Although he was never a great admirer of Hitler and eventually resigned his position, Schlegelberger was found guilty of both war crimes and crimes against humanity by the Nuremberg Tribunal.101 The tribunal noted that the persecution of people under the guise of the law was an enterprise in which neither Schlegelberger nor any of his colleagues should have been involved.102 He was convicted even though the court found that the legal system would have been worse off if another jurist-one whose views more closely tracked that of Hitler's-had been in his place.103

The ultimate lesson of the Schlegelberger trial is that there are some ends to which lawyers should not direct their talents; participating in the persecution of 'undesirables'-even if such persecution is consistent with domestic law-is one example. Providing the legal justification for the abuse and brutalization of detainees-even if the goal is to aid national security-may be another.