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 Oxford University Press: www.chinesejil.oupjournals.org

 

 

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 Nuremberg, 102

IV.A.   The Nuremberg Trial, 103

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

 

 

I.  Introduction

 

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 Oxford University Press: www.chinesejil.oupjournals.org