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THE CONCORD REVIEW 1 DECIDING NOT TO DECIDE: NUREMBERG AND THE AMBIGUOUS HISTORY OF THE TU QUOQUE DEFENSE Nicole A. Heise Introduction “Tu Quoque,” a Latin phrase, translates to “thou also” or “you too.”1 It is a defense that can be heard on many playgrounds: “I shouldn’t be punished because she did it too.” Tu Quoque forged its historic legacy during the Nuremberg Tribunal following World War II when German Admiral Karl Doenitz used it as a defense to deflect war crime charges brought against him. By raising the Tu Quoque defense, Doenitz argued that he should be acquitted because other leaders and nations also committed the same crimes. Although many scholars note the Tu Quoque defense’s importance, its history has largely been ignored. Using original court documents and personal papers from the Nuremberg Tri- bunal collection archived at Cornell University, this essay argues that the Tu Quoque defense’s history is far from clear and that this ambiguous history clouds its legacy. Despite an ambiguous history and its association with an especially dark chapter in world history, the Tu Quoque defense Nicole A. Heise is a Junior at Ithaca High School in Ithaca, New York, where she wrote this paper for Ms. Mai An Rumney’s Honors Global History II course in her Sophomore year, 2006/2007. Electronic copy available at: http://ssrn.com/abstract=1354048 2 Nicole A. Heise persists today. Recently, war crime tribunals involving Slobodan Milosevic and Saddam Hussein were forced to consider the Tu Quoque defense. Milosevic brought up the actions of both Franjo Tudjman (the former leader of Croatia) as well as those of NATO to absolve himself of actions he undertook in Serbia.2 Similarly, Saddam Hussein sought to defend himself against charges of genocide in part by asserting that the United States also engaged in genocide.3 Both Milosevic and Hussein pointed to the Nuremberg Tribunal as precedent for the Tu Quoque defense. Current war criminals’ reliance on the Nuremberg Tribu- nal as precedent for the Tu Quoque defense may be misplaced, however, as the history surrounding the defense is anything but clear-cut. Original archival documents from Nuremberg partici- pants illustrate the Tu Quoque defense’s shaky historical prece- dent. Although many scholars now agree that, despite its persis- tent use by defendants, international law largely ignores the Tu Quoque defense, most do not explain why this is so.4 The precedential uncertainty surrounding the Tu Quoque defense stems from the Nuremberg Tribunal’s handling of the defense in Karl Doenitz’s case. On the specific charge against Doenitz in which the Tu Quoque defense was raised (waging aggressive submarine warfare), the Tribunal took the highly unusual step of finding Doenitz guilty of the charge, but ignoring that guilty verdict by not imposing any sentence for that specific conviction. He was, however, convicted and sentenced on other charges. Evidence from the Doenitz case helps explain the Nuremberg Tribunal’s ambivalence about the charge of waging aggressive warfare brought against Doenitz. The U.S.-dominated Tribunal was especially worried about what Doenitz would say in open court about the actions of the U.S. Navy in the Pacific Theater during World War II. In a legal deposition taken before Doenitz’s trial, U.S. Admiral Chester Nimitz disclosed the poten- tially damaging information that American forces also actively participated in aggressive submarine warfare. A personal memo- Electronic copy available at: http://ssrn.com/abstract=1354048 THE CONCORD REVIEW 3 randum to Nuremberg judge Justice Jackson from his staff reveals the American investigators and prosecutors’ unease with the American position regarding Doenitz’s Tu Quoque defense. Although the Nuremberg Tribunal formally rejected Doenitz’s Tu Quoque defense by finding Doenitz guilty of waging aggressive warfare, the Tribunal’s decision not to sentence him on the conviction makes it unclear whether the Tribunal truly re- jected the defense. Indeed, the history of the Tu Quoque defense, beginning with Doenitz and persisting to current international war tribunals, is immensely complex and ambiguous. Conse- quently, current war criminals’ assertion of the Tu Quoque defense, pointing to the Nuremberg Tribunal as clear precedent, is weak at best. This essay argues that the Tu Quoque defense’s ambiguous history, rooted in the Nuremberg Tribunal, undermines its precedential force as a defense. The argument proceeds in four parts. First, the essay describes Karl Doenitz’s trial at Nuremberg, particularly his Tu Quoque defense against the second count brought against him (waging aggressive submarine warfare). Sec- ond, the essay considers how evidence about Chester Nimitz’s activities as a U.S. Naval Admiral influenced Doenitz’s Tu Quoque defense and the Tribunal’s response to it. Third, the essay exam- ines the guilty verdicts entered against Doenitz by the Tribunal and assesses them in light of the sentence imposed on Doenitz. Discrepancies between Doenitz’s guilty verdicts and the sentence imposed by the Tribunal contribute to uncertainty about the Tu Quoque defense’s validity. If anything, the Tribunal decided not to decide whether to recognize the Tu Quoque defense and, by doing so, created a historic legacy of indecision and uncertainty. Fourth, despite the ambiguous historical precedent, many current defen- dants raise the Tu Quoque defense in modern international crimi- nal tribunals. In conclusion, current war criminals’ reliance on the Nuremberg Tribunal as clear precedent for the Tu Quoque defense is not only misplaced, but also rests on an uncertain historical record. 4 Nicole A. Heise Karl Doenitz at Nuremberg Karl Doenitz was possibly one of the most brilliant naval tacticians and commanders that Germany ever produced. At the age of nineteen, Doenitz pursued his dream of serving in the military and enrolled in the Imperial German Navy’s training school.5 Much of the training he received at the Imperial Naval School was practical. Assigned to a training ship, the Hertha, Doenitz and his classmates learned much through trial and error.6 Doenitz was noted for his academic achievement while in the naval school, as well as for his tactical and practical knowledge of naval warfare.7 Once World War I broke out, Doenitz was assigned to the Breslau and promoted to the rank of an officer.8 He rose through the ranks quickly during his service in World War I, and received the Iron Cross First Class for his part in an encounter with a Russian dreadnought battleship.9 After active duty in the Mediter- ranean, Doenitz was ordered to return to Germany in 1917 to receive U-boat training.10 Doenitz eventually attained his own command, where his prowess earned him the Knight’s Cross.11 Unfortunately for Doenitz, under the Armistice, Germany was required to disband its navy. This temporarily put Doenitz out of a military job.12 Once Germany began to re-build its navy, however, Doenitz was quickly recalled to service. He was assigned to develop U-boat tactics and ensure that the men under his command were disci- plined and prepared to fight for Germany.13 Doenitz continued to impress his superiors, including flotilla chief Densch, with his abilities and officer-like demeanor.14 In 1924, Doenitz attended a training course run by Rear Admiral Raeder. Raeder, also suitably impressed with Doenitz, described him as follows: Clever, industrious, ambitious officer. Of excellent general profes- sional knowledge and clear judgment in questions of naval war leadership. Good military as well as technical gifts. I recommend he be employed not in one-sided technical positions but given opportu- nity for general military-seamanlike further training.15 THE CONCORD REVIEW 5 Raeder’s favorable opinion of Doenitz’s potential as a naval officer is consistent with the opinions of other German leaders. Doenitz, widely recognized for his work in U-boat tactics and considered an expert on the subject, quickly became the primary German leader in the development of the U-boat warfare.16 Karl Doenitz’s career accelerated once Adolf Hitler rose to power. Hitler’s ideals were greatly appreciated by the German military, including Doenitz. Many Germans were seduced by the idea of regaining national pride and glory partly by shaking off restrictions imposed by the Versailles Treaty. Hitler selected se- nior officers in the military to rebuild and glorify the German armed forces, and Doenitz was among those selected.17 Placed in charge of Germany’s entire U-Boat navy by Adolf Hitler in 1936,18 Admiral Doenitz revolutionized how German submarines waged war. He developed many new strategies for submarines, including one that rendered the submarine practi- cally undetectable by sonar.19 Doenitz also was responsible for creating the “wolf pack” submarine formation, in which subma- rines scouted out the waters separately in spread-out line forma- tions, only congregating when one submarine reported a convoy or other target.20 Another of Doenitz’s notable contributions to German submarine warfare included reforms involving U-Boat’s primary targets. Doenitz advocated targeting merchant vessels, as opposed to the traditional practice of only targeting military ships.21 He reasoned that attacking merchant vessels would put a greater strain on the economies of Germany’s adversaries, primarily Great Britain.22 While this was undoubtedly a cunning move on the part of Doenitz, it violated several treaties that governed the rules of submarine engagement, including the London
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