Issue #20: Can the Defendants Raise the

No: By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 173 (2006).

"Tu Quoque," Latin for "you also," is a defense in which the defendant argues that since the other side committed the same crimes, it is not legitimate to prosecute the defendants of those crimes. In the case of Saddam Hussein, the defense might be raised in three contexts. First, the defense may seek to argue that since the United States provided financial support and material assistance to aid the Ba’athist Regime’s war efforts against Iran, with knowledge of the actions the regime took against Iraqi Kurds and Shi’ites who supported Iran, that it would be unfair for an American-created Tribunal to prosecute the defendants for such actions. Second, the defense may try to argue that since the United States invaded Iraq without Security Council authorization or a legitimate claim to self-defense, it is unfair for an American-created Tribunal to prosecute the defendants for the crime of aggression against Iran or Kuwait. And third, the defense may seek to claim that since the United States has argued that the necessity defense justifies its aggressive actions against towns in Iraq and Afghanistan suspected of being a base of operation for terrorists, that an American-created Tribunal should be estopped from denying the right of the Ba’athist Regime to take actions for the same reason against the northern Kurds and the southern marsh Arabs.

The Tu Quoque defense is a cousin of the equitable "clean hands doctrine," which provides that one who comes to court for help must come with unsoiled hands. The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Kupreskic (2000), that the Tu Quoque defense has been "universally rejected" and that "there is in fact no support either in State practice or in the opinions of publicists for the validity of such a defense." But precedent for applying the doctrine can be found in the case law of the Federal Supreme Court of Germany which held in a 1960 war crimes case that "no State may accuse another State of violations of international law and exercise criminal jurisdiction over the latter’s citizens in respect of such violations if it is itself guilty of similar violations against the other State or its allies." See 32 ILR (1966), 564. Based on this precedent, we must ask: Did the U.S. government’s involvement in establishing the Iraqi Special Tribunal open the door for the defendants to argue the Tu Quoque defense?

The first answer is that although the United States’ CPA initially established the Iraqi Special Tribunal in December 2003, the IST is not a U.S. court. The Tribunal and its judges were approved on August 11, 2005, by the Iraqi National Assembly, and the judges and prosecutor are Iraqi, not American. Moreover, under the IST Statute the judges and prosecutor are independent and are prohibited from taking guidance from any government. Since the Judges and Prosecutors represent the Iraqi people and not the United States, their hands are not soiled by the actions of the United States, and there is no equitable bar to prosecuting the defendants.

Secondly, Courts that have examined the Tu Quoque defense in the past have held that a guilty State’s involvement in creating a Tribunal does not open the door to the Tu Quoque defense where the Tribunal’s bench does not include judges from the guilty State. The issue arose in two cases before the post-World War II US Military Tribunal at Nuremberg, where the defense argued that the Tribunal could not legitimately convict the defendants of the crime of aggression when the Soviet Union, which cooperated in the establishment of the Military Tribunal, had also engaged in a war of aggression in complicity with Germany. In the "High Command Case" (U.S. v. van Leeb, 1948), the Military Tribunal ruled that "Under general principles of law, an accused does not exculpate himself from a crime by showing that another committed a similar crime, either before or after the alleged commission of the crime by the accused." And in the "Ministries Case" US v. von Weizsacker, 1949), the Tribunal stated: "But even if it were true that the London Charter and Control Council Law No. 10 are legislative acts, making that a crime which before was not so recognized, would the defense argument be valid? It has never been suggested that a law duly passed becomes ineffective when it transpires that one of the legislators whose vote enacted it was himself guilty of the same practice."

Thus, the Iraqi Special Tribunal should reject the defendants’ attempts to elicit evidence of American actions in an attempt to prove a Tu Quoque defense. There is, however, one argument that the defense can make based on American actions that would be relevant. At Nuremberg, defendant Grand Admiral Carl Doenitz argued that he could not be convicted of waging unrestricted submarine warfare in the Atlantic since American Admiral Chester Nimitz had admitted that the United States had done the same thing in the Pacific. But the defense was not arguing that American violation of international law rendered it unfair to convict the German Admiral for the same acts. Rather, the defense was arguing that the American actions indicated that it was not a violation of international law to conduct unrestricted submarine warfare. Thus, Defense Counsel Kranzbuehler told the Tribunal: "The stand taken by the Prosecution [which had argued against recognition of the Tu Quoque defense"> differs entirely from the conception on which my application is based. I in no way wish to prove or even to maintain that the American Admiralty in its U-boat warfare against Japan broke international law. On the contrary, I am of the opinion that it acted strictly in accordance with international law." See 8 Trial of the Major War Criminals before the International Military Tribunal (official version, Nurmeberg, 1947), at 549. The Nuremberg Tribunal was persuaded by this argument, and did not convict Doenitz of the charge.

Drawing on the Nuremberg precedent, defense counsel before the Iraqi Special Tribunal may legitimately seek to prove that the international community’s mixed reaction and the absence of a General Assembly resolution condemning the 2003 invasion of Iraq, as well as the lack of consensus on a definition of aggression for use by the International Criminal Court, indicate that there does not presently exist sufficient international agreement on the crime of aggression to fairly prosecute the defendants of the charge. Similarly, defense counsel may legitimately seek to prove that the international community’s lack of condemnation of American aggressive actions to root out terrorists and insurgents from towns in Iraq and Afghanistan indicates that it was not against international law for Saddam Hussein to take similar action against the town of Dujail in 1982. The prosecution may counter with evidence that the defendants’ actions were unnecessary or disproportionate to the threat, but this will ultimately be a question that the Tribunal will have to decide based on the evidence. It is not an argument foreclosed by virtue of the international rejection of the Tu Quoque defense.

Posted @ 8:26 AM | Experts Debate the Issues: The Dujail Trial