Can Lawyers Be War Criminals?
22 Pages Posted: 2 May 2011
Date Written: April 1, 2007
This article addresses whether lawyers can be held liable under international criminal law for providing legal advice that allegedly contributes to the commission of acts of torture or cruel and degrading treatment. It examines this question through an in-depth analysis of an August 1, 2002 Office of Legal Counsel Memorandum to White House Counsel Alberto Gonzales, which is more commonly known as the "Torture Memo."
The article considers whether the Torture Memo could have aided and abetted the commission of torture and other crimes allegedly perpetrated by US interrogators in connection with the war on terror and whether its authors had the requisite state of mind to aid and abet such crimes. It seeks to resolve these questions by examining the current requirements for aiding and abetting liability under international criminal law and drawing analogies to prosecutions of lawyers for war crimes after World War II. It also examines possible forums for a prosecution of the Memo's authors.
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