The Tu Quoque
Argument as a Defence to
International
Crimes, Prosecution or Punishment
Sienho Yee
Full
text published in:
3
Chinese Journal of International Law (2004), pp. 87-133
www.chinesejil.org;
or
I. Introduction,
87
II. The general nature and scope of the tu quoque
argument, 89
III. Three
plausible formulations of the argument: Tu quoque
as a defence to the crime, a defence
to prosecution, or a defence to punishment, 97
IV. Recognition
at
IV.A. The
IV.B. The Subsequent Proceedings, 113
V. Mention
at the ICJ, 116
VI. Rejection
at the ICTY, 117
VII. The
current status of the tu quoque argument and its possible future application,
123
VIII. Concluding remarks, 131
An argument from fairness, the tu quoque
argument has an enduring appeal to the human conscience. Simply put, tu quoque is
the Latin rendition of “you too”, with the argument built-in, though often
unstated: “Since you have committed the same crime, why are you prosecuting
me?” Cast in more affirmative terms, the argument is that if one side in a
conflict has committed certain crimes, it has no authority to prosecute or
punish nationals of the other side for the same or closely similar crimes. Whatever effect a decision-maker may choose
to give it, the argument troubles the human soul, when it is presented in a
fitting situation.
This
argument does not appear as such in the Rome Statute of the International
Criminal Court (ICC) and has not received serious academic attention. Nevertheless, because of the special appeal
the argument has, I am making an attempt here to sketch out what of this
argument still remains relevant today in the context of international
humanitarian/criminal law. I will
consider the general nature and scope of the argument both as a matter of law
and in terms of the moral instincts behind it; its three possible formulations
as a defence to the crime, to prosecution or to
punishment (the formulations and terminology are mine, for want of better
ones); its treatment, in chronological order, at Nuremberg including the trial
of the major German war criminals conducted before the International Military
Tribunal (the Nuremberg Trial) and the trials of other war criminals conducted
before the United States military tribunals under Control Council Law No. 10
(the “Subsequent Proceedings”), the International Court of Justice (ICJ) and
the International Criminal Tribunal for the Former Yugoslavia (ICTY); and its
current status and possible future application.
I will then offer some concluding remarks.
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Laws of war
International criminal law
International humanitarian law
Full
text published in:
3
Chinese Journal of International Law (2004), pp. 87-133
www.chinesejil.org;
or