Between show-trials and Utopia: A study of the tu quoque defence

Abstract

AbstractTu quoque, meaning in Latin ‘you too’, is a fallacy of relevance which targets the hypocrisy of the arguer rather than the truth of the advanced argument.In international criminal tribunals, defendants who advance the defence choose not to argue for their innocence, but rather seek to shift the spotlight on the crimes committed by the prosecuting authority or by the opposing side to the conflict, so as to delegitimize the entire prosecution as a form of ‘victor’s justice’. According to legal doxa, the argument has never been accepted in court. As a consequence, it has also been completely neglected within academia. Yet, the tu quoque defence is extremely powerful, as not only proven by its recurrent use over time, but also by its ability to turn trials into ‘show-trials’. This delegitimization of international prosecutions not only does impact the memory and reconciliation of war-torn communities, but also weakens the edifice of international criminal law.‘The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment,’ written by Sienho Yee in 2004 is the only existing in-depth treatment of the defence. Departing from a critique of Yee’s theorization, this article attempts to fill the scholarly lacuna that exists around tu quoque. It departs from a critique of Yee’s theorization and questions whether the defence can be legally legitimate. The article concludes that the defence is legally void, but international criminal tribunals and academia must not disregard its underlying argument because of its political pertinence.