Defining Justice

By Dave Johns

The “You Too?” Defense

Standard of guilt

Tu quoque, Latin for “you too,” is a legal defense in which defendants argue that since the other side also committed the same crime, it is not fair to prosecute. This defense has been discussed in the context of Saddam’s trial because many believe Saddam’s defense team will accuse the United States of committing the same crimes of which Saddam is accused.

What accusations might defense attorneys make against the United States?

The defense may argue that since the United States financially and materially aided the Ba’ath regime’s war against Iran in the 1980s and knew about the regime’s actions against Shi’iah and Kurds who supported Iran, it would be wrong for an American–created tribunal to prosecute Saddam for those acts. The defense may also claim that since the United States has taken aggressive military action against “terrorist havens” in Iraq and Afghanistan, the tribunal should not be able to prosecute Ba’ath Party leaders for similar acts against Kurdish and Shi’iah insurgents.

Can the tu quoque defense work in court?

This defense –– which amounts to “the pot calling the kettle black” –– has had at best a mixed reception in court. In 2000, the international tribunal for the former Yugoslavia dismissed it out of hand. It’s hard to see how proof of two guilty parties who oppose each other should render them both innocent in the eyes of a court. Besides this, argues Scharf, in Iraq’s case, the tribunal was approved by the National Assembly, and the judges and prosecutor are not American, they are Iraqi, so the tribunal is not an American court. But a variation of the tu quoque might stand a chance against the charge of aggression against Saddam for his invasion of Kuwait, according to Scharf. Defense attorneys might argue that the mixed international response to the U.S. invasion of Iraq –– applause in some quarters, outrage in others –– shows that there is no clear definition for criminal aggression. A defense similar to this was successful in one case in the Nuremberg Trials.

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