Scott Horton has an excellent post at Balkinization on the subject of When Lawyers Are War Criminals. He points out that at the end of World War Two, lawyers working for the Nazi regime were put on trial for, among other things, their role in drafting and implementing "night and fog" decree, which authorised the disappearance, detention, torture and murder of those deemed to oppose the Nazis in occupied countries. This was a violation of international law at the time (specifically, the Hague Convention of 1907 and the 1929 Geneva Convention), but those instruments were dismissed as "quaint" and reflecting "outmoded notions of chivalric warfare". Two top lawyers of the German Justice Department were eventually convicted of crimes against humanity and war crimes for crafting this policy, and sentenced to ten years imprisonment; essentially, the precedent is that
cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.
The application to the Bush Administration and its policies of rendition, torture, and the systematic denial of Geneva Convention rights to detainees is obvious: top administration policymakers, including Attorney-General Alberto Gonzales, Vice-Presidential Chief of Staff David Addington, and lawyers John Yoo and Jay Bybee are in the gun for war crimes. As for their recent effort to provide retroactive immunity from prosecution for those crimes under US law, Horton has this to say:
The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable working of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise.
If the consequence of the Act is to immunize those who authorized these techniques from prosecution, is that lawful? The US position, articulated most recently in connection with Yugoslavia's efforts to immunize its military leaders, was that any such act would only provide evidence of a broader conspiracy to commit war crimes. Consequently, the grant of immunity is ineffective in the contemplation of the international community; moreover, those involved in purporting to grant immunity may thereby be roped into a charged joint criminal enterprise.
The message to lawyers ought to be clear: if the Bush Administration asks you to find a way around international law so they can torture people, run. Otherwise, you may one day be held to account for your involvement by a country which claims universal jurisdiction for war crimes.
[Hat tip: Talk Left]