![handle is hein.journals/wlron2017 and id is 1 raw text is:
THE INTERNATIONAL CRIMINAL LIABILITY OF
UNITED STATES GOVERNMENT LAWYERS
AUTHORIZING TORTURE
MARY H. HANSEL*
Intro duction ......................................................................1
II.The Torture M emos .................................. . . ...........4
III.Applicable Theories of International Criminal Liability............6
A. Aiding and Abetting Under International Law .............7
1. Applicable United States Military Tribunals at
Nuremberg Case Law.. .................... 8
a. The Ministries Case..................... 9
b. The Justice Case ...................... 10
2. Aiding and Abetting Liability for the OLC Lawyers.... 11
B. Joint Criminal Enterprise Under International Law ........ 13
Conclusion ................................ ....... 14
INTRODUCTION
In a matter of weeks, the International Criminal Court (ICC) is
expected to open a full-fledged investigation into the war crimes of
torture and related ill-treatment, by United States military forces
deployed to Afghanistan and in secret detention facilities operated by
the Central Intelligence Agency. 1 Pursuant to the principle of
complementarity, the ICC cannot take the case if the United States has
conducted its own investigation and decided against prosecution unless
the decision resulted from the unwillingness or inability of the State
* J.D., University of Southern California Gould School of Law; LL.M in
Public International Law, London School of Economics and Political Science. Mary
Hansel currently directs the International Human Rights Clinic at Loyola Law School,
Los Angeles. She originally conducted much of the research presented herein as a legal
fellow with the International Center for Transitional Justice (ICTJ). She would like to
thank ICTJ (although the work is her own), as well as the editors and staff of the
Wisconsin Law Review.
1. The Office of the Prosecutor for The International Criminal Court,
Report on Preliminary Examination Activities, ¶¶ 219-22 (Nov. 14, 2016) [hereinafter
ICC Report], https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PEENG.pdf; Somini
Sengupta & Marlise Simons, U.S. Forces May Have Committed War Crimes in
Afghanistan, Prosecutor Says, N.Y. TIMES (Nov. 14, 2016),
http://mobile.nytimes.com/2016/11/15/world/asia/united-states-torture-afghanistan-
international-criminal-court.html?ref= world&_r= 0&referer=https://t.co/HbDfP6edJf.](ViewImageLocal?handle=hein.journals/wlron2017&div=1&collection=&method=preview&ext=.png&size=3)
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