2017 Wis. L. Rev. Forward 1 (2017)

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.

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