Document Type : Research Paper
Authors
Abstract
Abstract
The aim of this paper is to consider the Tu quoque defence in the context of international criminal law by the analytical-descriptive approach. Simply put, Tu quoque is the Latin term (equal to: You too) and often is stated in this context: (You should not punish me because you did it too). This defence, for the first time was implicitly accepted during the Nuremberg tribunal (following World War II) in the Admiral Karl Doenitz case. The original base of this argument is the clean hands doctrine: (if one of the parties of armed conflict has committed certain crimes, his hands to prosecute or punish other parties of conflict for the same crimes are not clean). Recently, criminal tribunals such as International Criminal Tribunal for Yugoslavia have been faced with Tu quoque as a defence. Despite the existence of an ambiguous history for this defence, jurists have not paid enough attention to this defence. This paper, by examining the jurisprudence of IMT and other international criminal courts, concludes that Tu quoque defence in Genocide and Crimes against humanity cannot be accepted, but in some War Crimes and the Crime of Aggression, this defence is acceptable under certain circumstances.
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ب. انگلیسی
-
Bassiouni, Cherif. M. (2011). Crimes Against Humanity: Historical Evolution and Contemporary Application, First Published, New York, Cambridge University Press.
-
Berlin, Stephanie. (2002). “International War Crimes”, Project Memorandum for The Office of The Prosecutor. pp. 1-28.
-
Bethlehem, Daniel. Principels Relevant to the Scope of a States Right of Self-defence against an Imminent or Actual Armed by Non-state Actors, Available at: http://www.un.org/law/counsel/Bethlehem%20-%20Self-Defense%20Article.pdf
-
Bryan, A. Garner. (1991). Blacks Law Dictionary, Standard Ninth Edition Hardcover – June 25, 2009.
-
Cassese, Antonio. (2003). Justifications and Excuses in International Criminal Law, in Cassese, Antonio, Gaeta, Paola, Jones , Jhon R.W.D.(eds.), Oxford.
-
Cryer, Robert, et. al. (2010). An Introduction to International Criminal Law and Procedure, New York, Cambridge University Press.
-
Darcy, Shane. (2011). “Defences to International Criminal Law”, Journal of International Criminal Justice , pp . 231-245.
-
Eisikovits, Nir. (2011). Transitional Justice, The Stanford Encyclopedia of Philosophy, Edward N.Zalta (ed.) Available at: http://plato.stanford.edu/archives/win2011/entries/justice-transitional/
-
Heise, Nicole A. (2007). “Deciding not to Decide: Nuremberg and The Ambiguous History of The Tu Quoque Defense”, Journal of Southern Religien, pp. 3-24.
-
https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0.
-
Judgement : Doenitz, http://avalon.law.yale.edu/imt/juddoeni.asp.
-
Kalshoven, Frits. (1971), Belligerent Reprisals, Oxford Universitr Press.
-
Office of the United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression. (1947). Vol. I: Opinion and Judgement, United States Government Printing Office, Washington.
-
Oxford Manual. (1880), Adopted by the Instutute of International Law at Oxford.
-
Prosecutor v. Milan Martic, Case No. IT-95-11-T, 12 June 2007.
-
Prosecutor v. Zoran kupreskic et al., Case No. IT-95-16-A, 23 October 2001.
-
Prosecutor v. Zoran kupreskic et al, Case No. IT-95-16-T,14 January 2000.
-
Yee, Sienho. (2004). “The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment”, Chinese Journal of International Law , pp. 87-133.
-
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