Can Lawyers Be War Criminals?

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

In a different case tried in post-World War II Germany, a lawyer was convicted for his involvement with the Nazi Schutzstaffel (the "SS").104 The lawyer, Joseph Alstoetter, was not aware of many of the activities of the SS or of the horrific occurrences at concentration camps.105 Nor did he write or enact any of the Nazi regime's discriminatory laws.106 Rather, Alstoetter's efforts were largely directed at interpreting the laws the Nazis had passed. For example, he formulated rules and procedures for the administration of hereditary biological courts that determined whether certain Jews could be considered ethnically German.107 The Nuremberg Military Tribunal convicted him without considering whether he approved of the Nazi persecution of Jews, saying

As a lawyer [Alstoetter] knew that in October of 1940 the SS was placed beyond the reach of the law. As a lawyer he certainly knew ... the Jews were turned over to the police and so finally deprived of the scanty legal protection they had theretofore had .... [H]e gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organization from the eyes of the German people.108

After the Alstoetter case, the argument that a lawyer cannot be punished for merely interpreting and implementing domestic law-no matter how morally repulsive the law at issue is-is simply not credible. Yoo and Bybee used their legal talents to deprive detainees of the protection of the Torture Convention, the only instrument that, in the administration's view, had any bearing on the interrogation of detainees abroad. Even if their intent was not to facilitate acts of torture and cruel, inhuman, or degrading treatment, they, like Alstoetter, appeared to play a vital role in lending credibility to the misdeeds of their superiors. This being so, a court could certainly find that Yoo and Bybee "materially contributed" to the commission of acts of abuse. While the unspeakable crimes of World War II cannot and should not be equated with the reported incidents of torture and cruel, inhuman, or degrading treatment of detainees captured in the War on Terror, ICTY and WWII precedents suggest that Yoo and Bybee can be held legally accountable for the Torture Memo.

III. SOURCES OF LAW AND VENUES FOR PROSECUTION

Thus far in this Essay, I have attempted to demonstrate that lawyers can be held responsible for their involvement in denying individuals legal protections, as well as for providing legal cover and legitimacy for illegal and immoral acts. The argument can be made that, by writing the Torture Memo, Yoo and Bybee were indifferent, if not encouraging of, the commission of acts of torture and cruel, inhuman, or degrading treatment. The Torture Memo might qualify as a material contribution109 to the commission of these acts, making Yoo and Bybee complicit in their commission. This leads to the question of what a prosecution of Yoo and Bybee for war crimes might look like. Where could they be tried and under what law could they be prosecuted?