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3 Chinese J. Int'l L. 87 (2004)
The Tu Quoque Argument as a Defense to International Crimes, Prosecution or Punishment

handle is hein.journals/chnint3 and id is 95 raw text is: The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment Sienho Yee* 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?1 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 Editor-in-Chief of this Journa; Associate Professor of Law, University of Colorado School of Law, Boulder, Colorado (homepage: www.sienhoyee.org; email: yeecsienhoyee.org). I am most grateful to Chris Gray for research assistance; to the staff of our librar and Ingrid Kost of the Peace Palace Librar at The Hague for assistance in obtaining materials; and to Emily Calhoun, Lakshman Guruswamy, Frits Kalshoven, Howard Kiemme, Roy S. Lee, Mark Loewenstein, Dayna Matthew, Robert Nagel, William Pizzi, Ahmed White, and the referees of this Journal for comments on an earlier draft. All responsibility is mine alone. The paper was finalized in May 2004. Thus, the term tu quoque is defined as a retort accusing an accuser of a similar offense or similar behavior in the widely used The American Heritage Dictionary of the English Language (4 ed. 2000), 1856. 87

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