A Legal Advisor's Responsibility to the International Community: When Is Legal Advice a War Crime?

Abstract

Practically every attorney in every state of the United States of America takes an oath to uphold the US and that state’s Constitution. Upon taking the oath, most US lawyers become an officer of the court (“judicial officer”). As an officer of the court they are held to a higher standard of integrity and candor as is required by that state’s professional responsibility rules. As such, although an attorney is an advocate for his client, in some situations, an attorney must set aside his role as advocate and assert his role as judicial officer to maintain the integrity of the judicial system and uphold the US and state Constitution. The constant tension between an attorney’s role as judicial officer and advocate occurs because giving advice about the law an attorney’s main purpose and often that advice may further criminal conduct. However, as Professor Newman eloquently put it, “[n]either the status of ‘lawyer’ nor the obligation to provide access to the law should exempt lawyers from the criminal liabilities which face everyone else.” While Professor Newman was specifically referring to a lawyer’s responsibility in the domestic sphere, this is equally applicable to a legal advisor’s responsibility to the international community. Concededly, an attorney does not take an oath to uphold international law. However, because a lawyer should not be exempt from the law, each and every attorney, like everyone else, should be legally responsible to the international community. This article argues that there are some limited situations where a lawyer, specifically a government legal advisor, has certain basic legal responsibilities to the international community that trump his responsibility to his government. As the Nuremberg trials emphasized, no government official is immune from an international crime simply because he is acting within his official capacity. Rather, because the State cannot act without people to act on