Can Lawyers Be War Criminals?

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

A. INTERNATIONAL TRIBUNALS: THE ICC

The International Criminal Court ("ICC") was established by the Rome Statute of the International Criminal Court ("ICC Statute") on July 17, 1998 and is currently in the process of beginning operations.110 The United States is not a party to the ICC, having revoked its signature on May 6th, 2002. ' ' ' Nevertheless, the ICC still has the potential to exercise jurisdiction over U.S. nationals like Yoo and Bybee. According to Article 12 of the ICC Statute, the ICC can exercise jurisdiction over crimes that occur on the territory of any one of the state-parties to the court.112 Even if a state is not a state-party to the ICC Statute, it can allow the ICC to excercise jurisdiction with respect to specific crimes committed within its territory.113 For this reason, American lawyers should be mindful that the ICC may have jurisdiction over their actions that have an impact abroad. While Yoo and Bybee's actions took place within the United States, the crimes for which they might bear complicity occurred abroad, meaning that they are not immune from the ICC's jurisdiction.

With regards to the War on Terror, the United States is conducting interrogations in Iraq, Afghanistan, and Guantanamo Bay, as well as certain "black sites" in Eastern Europe.114 Afghanistan is a party to the ICC, whereas Iraq and Cuba are not.115 Since the War on Terror began, there have been credible stories of detainees being abused and tortured in Bagram and other parts of Afghanistan.116 The ICC could attempt to hold Yoo and Bybee accountable for these acts, as the court would have jurisdiction over the crimes. Although the United States has a so-called Article 98 Agreement117 in place with Afghanistan,118 the Agreement only prevents Afghanistan from turning U.S. nationals over to the ICC; it does not prevent a third state from turning over U.S. nationals found within its territory who aided and abetted crimes committed in Afghanistan. Another possibility is for the ICC to obtain consent from Iraq and/or Cuba to exercise jurisdiction over crimes committed by U.S. nationals within their respective territories. Such consent would probably not be given by Iraq which is currently an ally of the United States. However, Cuba-which retains ultimate sovereignty over Guantanamo Bay119-could, if it chose, allow the ICC to exercise jurisdiction. Under such circumstances, if Yoo and Bybee were present in any country that is a party to the ICC and has not signed an Article 98 Agreement, the lawyers could be transferred to the Hague to answer charges related to the mistreatment of detainees in Cuba.

Americans would undoubtedly be less-than-enthused if an international court attempted to prosecute Yoo, Bybee, or indeed any U.S. national. Given that the ICC is supposed to exercise jurisdiction over the "most serious crimes of international concern,"120 it would be within a prosecutor's discretion not to focus on the actions of individuals like Yoo and Bybee. Nevertheless, the ICC is by no means precluded from prosecuting crimes related to the mistreatment and torture of detainees or from exercising jurisdiction over U.S. nationals.