Duhaime's Law Dictionary


Tu quoque Definition:

Latin: you too; a justification in international law that the whatever act is being complained of was also committed by the accusing parties.

A Latin phrase, tu quoque, is often rendered also as thou also.

The defendant, in raising tu quoque, asserts before a tribunal that while he/she may have committed the act(s) complained of, so, too, did those on the other side of the conflict, or felow nationals of the presdiding officer of the tribunal.

Tu quoque is readily used by defendants in war crime, crimes against humanity or genocide proceedings, if the facts allow. Tu quoque raises a mirror to the adjudicator or accuser to view similar acts committed by nationals of that adjudicating or prosecuting state.

tu quoqueIn that, it is both simplistic yet cuts to the root of basic rules of fairness. Consider these words of author Yee, Sienbo, then Associate Professor of Law, University of Colorado School of Law:

"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. This argument is the ultimate challenge to someone who cares about fairness and seeks to found one's endeavor on solid legal and moral grounds and to conduct oneself honorably and fairly....

"Whatever effect a decision-maker may choose to give it, the argument troubles the human soul, when it is presented in a fitting situation."

Scharf and Kang wrote, in their 2005 article:

"An accused raising the tu quoque defense claims justification for his or her acts as a response to the actions of the State or rebuts the charges of the State by claiming that the State cannot prosecute him or her since the State behaved in a similar culpable manner as the accused. In other words, the accused is saying, you cannot fairly criticize me on that basis, for you are just as bad. You are doing the same yourself.

"The defense of tu quoque is not invoked to convince the other side to desist from its unlawful conduct... but as an estoppel against the State's subsequent attempt to call into question the lawfulness of the same kind of conduct of the accused.

"The tu quoque defense has been attempted by individuals accused of war crimes, crimes against humanity, and genocide in the Nuremberg tribunal...."

Those authors also relate that at the Nuremberg trial, the German naval commanderl Karl Donitz,successfully relied on tu quoque to defend himelf against the otherwise undefendable policy of abandoning enemy sailors in the high seas, to their certain death, after they managed to survive the sinking of their ship.

"One of Donitz's charges involved waging unrestrictive submarine warfare. In response to this accusation, he argued that his order forbade him from allowing German naval ships to help survivors from a sunken British vessel, the Laconia, and that he could not be guilty of wagering unrestricted submarine warfare since American navy officers had an identical policy.

"Donitz's defense procured evidence from U.S. Admiral Chester Nimitz, commander of the American fleet in the Pacific, where the Admiral admitted that the U.S. Navy had a similar policy. Instead of claiming that Donitz's actions were justified because the Americans had a similar policy, Donitz's defense argued that neither the German nor the American policy was itself illegal since the universality of these acts demonstrated that the laws of war had changed through practice so as to free them of their illegal character."


REFERENCES:

  • International Military Tribunal at Nuremberg, Admirals Donitz and Raeder, 1 Trial of the Major War Criminals before the International Military Tribunal (official version, Nuremberg, 1947) 310-17.
  • Prosecutor v. Kupreskic, Case No. IT-95-16
  • Scharf, Michael P., Kang, Ahran, Errors and Missteps: Key Lessons the Iraqi Special Tribunal Can Learn from the ICTY, ICTR, and SCSL, 38 Cornell Int'l L.J. 911 (2005)
  • Yee, Sienbo,Tu Quoque Argument as a Defense to International Crimes, Prosecution or Punishment, 3 Chinese J. Int'l L. 87 (2004)

Categories & Topics:


Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!