War crimes trials often weigh on the consciences of the conscientious. Aren’t such proceedings mere “victor’s justice”? The hypocrisy is usually palpable; after all, how often does either side in a violent conflict walk away with clean hands? Unsurprisingly, then, one of defendants’ favorite legal strategies is to tell their prosecutors, “Well, you guys did the same.” It’s called the tu quoque defense:
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?” 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.
To be honest, though, I have trouble seeing why this argument has any appeal, much less “enduring appeal.”
Consider: If a law is unjust, the less you enforce it, the better. This remains true even if 99% of violators get punished, because sparing 1% is less unjust than sparing 0%. To quote one of the best things Murray Rothbard ever said about ethics:
[T]he justice of equality of treatment depends first of all on the justice of the treatment itself. Suppose, for example, that Jones, with his retinue, proposes to enslave a group of people. Are we to maintain that “justice” requires that each be enslaved equally? And suppose that someone has the good fortune to escape. Are
we to condemn him for evading the equality of justice meted out to his fellows? It is obvious that equality of treatment is no canon of justice whatever. If a measure is unjust, then it is just that it have as little general effect as possible. Equality of unjust treatment can never be upheld as an ideal of justice.
By the same logic, if a law is just, the more you enforce it, the better. This remains true even if 99% of violators are never punished. Giving 1% of monsters what they deserve is less unjust than giving 0% of monsters what they deserve. If you have the chance to inflict retribution on 1% of the camp guards at Auschwitz, why not go for it? Sure, if you’re a war criminal yourself, we should urge you to submit to punishment as well. If that’s not going to happen, though, why not take whatever justice you’re willing to dole out?
Justice aside, the consequentialist case against the tu quoque defense is also solid. Since victory is never assured, it’s good for people on all sides to know, “I will be harshly punished for my war crimes… if my side loses.” While it would be better if people knew they would be punished regardless of the outcome of the war, conditional deterrence is better than no deterrence at all.
Isn’t it possible, though, that people will commit additional war crimes to avoid prosecution for earlier war crimes? The answer, of course, is: “Sure, it’s possible.” Most obviously, fear of war crimes trials provides an incentive to murder witnesses ASAP. Yet the same goes for any law. Laws against murder create an incentive to murder people who witness your murders. Yet this is a flimsy objection to laws against murder, because shrewd consequentialists focus on overall net effects, not worst-case scenarios.
What’s the best case against war crimes trials? Simple: War crimes trials might delay peace – or reignite a war – and war is hell. Indeed, war is often hellish enough to overcome the intuitive moral presumption in favor of making violent criminals suffer for their misdeeds. When countries adopt amnesties to prevent future bloodshed, I keep my mind open.
When you firmly have the upper-hand, though, I say retribution dulce et decorum est. Letting Soviet war criminals off the hook in 1991 was defensible, though it would have been safe and wise to permanently bar former Communist Party members from holding public office. In 1945, though, defeated Axis war criminals were sitting ducks. Making tens of thousands of them pay in full for their offenses would have been easy, just, and instructive. Punishing all the war criminals on both sides would naturally have been even more just and instructive, but anything but easy.
READER COMMENTS
Mark
Jul 16 2019 at 10:51am
I find tu quoque persuasive because rules are not exogenous but are made by people. When people with the power to make rules can exempt themselves from those rules, they are more likely to make unjust rules.
To take Rothbard’s example, if slavemaster Jones knows he will be equally subject to any treatment he doles out to others, he will probably not enslave others as that means he will have to be a slave too. But if he knows that he can treat others how he wants without being subject to equal treatment himself, he will create the rule of being enslaved.
Ricardo
Jul 16 2019 at 11:17am
I’m not sure how good this analogy is, but I’ll float it anyway:
Any parent will tell you that it is unwise to set rules for your children that you then fail to enforce.
But would you agree that it is even worse to set rules and then enforce them for some of your children, but not others?
David Manheim
Jul 16 2019 at 12:36pm
I’m concerned that selective enforcement of laws leads to selective repression, with larger consequences. If we only prosecute rich people who are guilty of child-abuse, or only prosecute poor people who are guilty of murder, we are being unjust despite prosecuting fair laws.
I’m unsure how to address this issue, nor am I sure how to formulate it more clearly, but that is why O can’t embrace your suggestion that all marginal advances in prosecuting things that we all agree are actually evil, no matter the distribution, are necessarily positive.
nobody.really
Jul 16 2019 at 1:20pm
As Caplan observes, it can be hard to establish any uniform principle related to tu quoque arguments.
1: If you’re not addressing some kind of systemic (e.g., competitive) dynamic, then the tu quoque defense is an ad hominin argument about the hypocrisy of the prosecutor. Indeed, prosecutors may act hypocritically—but that generally should not exonerate a guilty defendant. Racism may well infect our criminal justice system, but that fact should not exonerate O.J. Simpson.
2: I agree with Caplan that if a policy is unjust, it makes sense to see it evaded, even if imperfectly, just as a just policy should be enforced, even if imperfectly—ALL ELSE BEING EQUAL. But sometimes the harm of imperfect application proves more salient to society than the harm of imperfect policy. You can make arguments in favor of or against the Designated Hitter Rule, or driving on the right side of the road, and the choice of policy may make a practical difference to certain individuals. But for purposes of the society overall, the larger goals are served by enforcing uniformity—whether in adopting the policy or adopting its opposite. Whatever meager advantage might be achieved by permitting a few individuals to deviate from a suboptimal policy would be swamped by the disadvantages.
3: What of dissent in democracy?
Rothbard discusses a dynamic involving slavery. Does he mean for us to understand this as a hypthothetical about a world where slaves lack redress via the democratic process—A WORLD UNLIKE THE ONE MOST OF US INHABIT? Thus his hypothetical seems reasonable to his (presumed) context—but probably less reasonable to ours.
For example, as far as I can tell, very few human beings create real estate. Thus, I conclude that the act of claiming exclusive rights to real estate is unjust. Regardless, the police will arrest many/most people who engage in trespass. Would Rothbard encourage people such as myself to feel free to engage in as much trespass as we can get away with?
And why stop there? Anyone who sees any injustice regarding property ownership should feel free to steal, right? And if we see injustice in the criminal justice system, we should feel free to become vigilantes, right? Why should we subject ourselves to the grueling work of the democratic process to create systemic remedies when each person can simply become a law unto himself, limited only by his wherewithal?
Philosophers have long struggled with how to express dissent in democracy. The current ideal seems to be civil disobedience: You OPENLY flout unjust laws, and then defy the state to enforce the laws against you to demonstrate their injustice. This draws the distinction between yourself and a common scofflaw, shows respect for the principle of law (and for the opinions of your fellow citizens), and invites democratic redress.
(Admittedly, I use the term “democracy” in this discussion as if it were a binary condition. We can see that people can live under circumstances with greater or lesser recourse to the democratic process. In the US, children can’t vote—and thus may feel themselves justified in taking unilateral steps that I would not. Or consider Jews in Nazi Germany, black people in the Jim Crow South, coloreds in apartheid South Africa, etc. Arguably members of these groups might be justified in taking covert measures in pursuit of justice in lieu of engaging in civil disobedience.)
blacktrance
Jul 16 2019 at 7:48pm
From the defendant’s point of view: If you (the prosecutor) think what I did is wrong, because you did the same, you should punish yourself as well. But I know you won’t, because you don’t really think war crimes are wrong. So you don’t believe that punishing me would be just.
Christian Moon
Jul 17 2019 at 3:50am
This is exactly right.
A law that you won’t enforce against your own side isn’t really any sort of law at all.
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