The Tu Quoque Argument as a Defence to
International
Crimes, Prosecution or Punishment
Sienho Yee
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published in:
3 Chinese
Journal of International Law (2004), pp. 87-133
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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