THE CONCORD REVIEW 1

DECIDING NOT TO DECIDE: 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 Karl Doenitz used it as a defense to deflect 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 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 . 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 ’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 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 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 waged war. He developed many new strategies for submarines, including one that rendered the submarine practi- cally undetectable by .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 Naval Treaty. 6 Nicole A. Heise

London Naval Treaty The London Naval Treaty was an agreement among the United States, France, Italy, Japan, and Great Britain.23 Signed on April 22, 1930, the treaty had two primary purposes. First, it placed restrictions on the construction of military naval ships. Second, it clearly specified rules for submarine warfare.24 Specifically, Article 22 of the London Naval Treaty states: Except in the case of persistent refusal to stop on being duly sum- moned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew, and ship’s papers in a place of safety.25 The London Naval Treaty is best understood to mean that military submarines may not attack an unwarned and unprepared merchant or commercial vessel, unless the vessel in some way provoked or resisted the submarine. In addition, even when attacking a merchant ship, a submarine must first ensure that all of the merchant ship’s crew and passengers are safe and out of harm’s way. The submarine must either place the ship’s passen- gers and crew in the care of another ship or take them on board their own submarine before attacking the merchant vessel. Although Germany was not a signatory to the London Naval Treaty, it was nonetheless bound by the regulations set out in the treaty for two reasons. First, the Treaty’s Article 22 (the Article explaining the expectations of conduct when waging submarine warfare) specifically states that, “The following are accepted as established rules of International Law.”26 Thus, even though Germany neither signed nor ratified the London Naval Treaty, Germany was obligated to follow the expectations set forth in Article 22 as a matter of general international law. Second, the London Naval Treaty applied to Germany because Germany lost World War I. The countries who did sign the treaty won the war and defeated Germany. Many wars are fought over conflicts of ideals, and those who win wars gain power to THE CONCORD REVIEW 7 enforce some of their rules and ideals over the defeated. Because the Allied forces defeated Germany, the Allies were able to impose various conventions, standards, and laws onto Germany.

German War Order Number 154 Despite the clear rules for submarine warfare articulated in the London Naval Treaty that bound Germany, Doenitz none- theless issued War Order 154.27 War Order 154, issued in Decem- ber 1939, condoned and encouraged the use of unrestricted submarine warfare by the German U-Boat fleet.28 Specifically, Doenitz’s order stated: Do not rescue any men; do not take them along; and do not take care of any boats of the ship. Weather conditions and proximity of land are of no consequence. Concern yourself only with the safety of your own boat and with efforts to achieve additional successes as soon as possible. We must be hard in this war. The enemy started this war in order to destroy us, and thus nothing else matters.29 By intentionally targeting merchant vessels, Doenitz’s order di- rectly flouted the London Naval Treaty, as well as international standards of behavior expected of all nations, regardless of war- fare. Even before the issuance of War Order 154, the German submarine fleet was already in the habit of targeting unarmed merchant vessels.30 For example, in , the British ship S.S. Athenia was sunk by a German U-Boat off the coast of Northern Ireland. The German U-Boat sank the S.S. Athenia without provocation or warning. The S.S. Athenia’s 1,103 civilian passengers, including 300 American citizens, were not assured safety prior to the attack.31 After Doenitz issued War Order No. 154, Germans contin- ued their practice of unrestricted submarine warfare. Possibly the most infamous of these attacks was the sinking of the British luxury-liner the RMS Laconia.32 German U-boats sank the Laconia just off the West Coast of Africa in September, 1942. Carrying approximately 2,300 people, it was only after the ship sank that the submarine made any attempt at rescue.33 While questions remain 8 Nicole A. Heise about whether the of the German submarine, , thought the Laconia was an armed military ship,34 Admiral Karl Doenitz issued the Laconia Order in response to the incident. The order, issued several days after the Laconia sank, states: No attempt of any kind must be made to rescue members of ships sunk and this includes picking up persons in the water, putting them in lifeboats, righting capsized lifeboats and handing over food and water… Shipwrecked people will only be rescued if their information is important for the submarine. Be hard. Remember the enemy has no regard for women and children when he bombs German cities.35 Despite Doenitz’s naval savagery and brilliance, by the spring of 1945 Germany’s defeat was inevitable. On April 30, 1945, Adolf Hitler and his mistress-turned-wife, Eva Braun, committed simultaneous suicide in Hitler’s private bunker.36 Prior to killing himself, Hitler made provisions for the continuation of German rule, naming Admiral Karl Doenitz as his successor to the Fuhrership. On May 1, 1945, Doenitz ascended to the position of Germany’s last Fuhrer.37 As Fuhrer, Doenitz ordered the German army to continue fighting American and British soldiers and determined not to give up as long as the United States and England sought to thwart his efforts.38 Despite Doenitz’s efforts, Russia’s Red Army quickly advanced upon , slaughtering, raping, and plundering along the way.39 On May 22, 1945, merely 22 days after assuming the role of Fuhrer, Karl Doenitz was informed by U.S. General Rooks that, “...today the acting German government and the German high command...shall be taken into custody as prisoners of war. Thereby the acting German govern- ment is dissolved.”40 With these words, Doenitz went from being Germany’s Fuhrer to being a prisoner and a war criminal. The Allied forces took Doenitz into custody and later informed him that he would stand trial at Nuremberg to face war crimes charges.

The Nuremberg Tribunal The Nuremberg Tribunal was a revolutionary concept. It was the first international criminal tribunal of its kind.41 The THE CONCORD REVIEW 9 Tribunal emerged due to the efforts of the victorious countries, including the United States, Russia, France, and England. On August 8, 1945, the Allied leaders signed an agreement that set forth the purpose, regulations, and structure for the first Interna- tional Military Tribunal (“IMT”).42 The IMT was created as a universal and powerful court. To better handle major war crimi- nals who committed atrocities in multiple countries the IMT’s jurisdiction was unrestricted by borders and geography.43 Prior to the creation of the IMT, war criminals were tried separately in each country in which they committed the crimes. The IMT served to unify these countries and provide a single forum in which war criminals could be prosecuted for their war crimes.44 The Nuremberg Tribunal opened on November 20, 1945.45 Nuremberg was selected as the site for the IMT after much heated debate because, unlike many other locations considered, Nuremberg’s prisons were unscathed from bombings as were the Grand Hotel and the Palace of Justice.46 The Grand Hotel and the Palace of Justice were the only two functioning buildings in Germany large enough and otherwise suitable for the Tribunal. Each prosecuting country provided attorneys; defendants were provided with legal counsel of their choosing.47 In addition, the victorious countries (England, Russia, France, and the United States) supplied the judges for the trial.48 Because participants spoke in their natural languages,49 the Tribunal’s proceedings were broadcast in four different languages: English, German, Russian, and French. In terms of war criminals, the Nuremberg Tribunal was reserved for the worst of the worst. These included individuals who were either extremely high-profile (such as Admiral Karl Doenitz and ), leaders of the Nazi regime, and those who had committed astonishing feats of atrocity against fellow human beings. For example, Hermann Goering, Germany’s , was another member of the on trial with Doenitz.50 Goering was responsible for organizing the mass extermination of Jews in Germany and other parts of Europe. Similarly, , nicknamed the “Butcher of Poland,” was on 10 Nicole A. Heise trial for orchestrating the murder of hundreds of thousands of Poles.51 Admiral Doenitz’s formal strategy of targeting civilian vessels and his callous disregard for the loss of civilian life violated international law and the London Naval Treaty and gave rise to three war crime charges brought before the Nuremberg Tribunal. Count One against Doenitz involved conspiracy to wage aggressive warfare, Count Two involved waging aggressive warfare, and Count Three involved committing war crimes.52 Consequences from Doenitz’s War Order 154 formed the basis for the aggressive warfare charge (Count Two). Specifically, Doenitz was charged with sinking the Athenia, a British passenger ship,53 as well as involvement with the Laconia affair.54 In addition, Doenitz was held responsible for the actions of Capitan Heinz Eck with regards to the sinking of the Greek ship, the Peleus. Eck sank the Peleus in the Mediterranean and then proceeded to attack survivors with machine gun fire and a barrage of hand grenades.55 At Nuremberg Doenitz mounted conventional defenses against Counts One and Three. In response to Count Two, however, Doenitz raised the Tu Quoque defense, and argued that because the United States also participated in unrestricted and aggressive submarine warfare in the Pacific he (Doenitz) should not be found guilty and punished for the same behavior.56 To support his Tu Quoque defense, Doenitz submitted the deposition of United States Admiral Chester Nimitz.57

U.S. Navy Admiral Chester Nimitz and American Warfare Admiral Chester Nimitz was one of the United States’ most venerated naval officers. Appointed Commander in Chief of the U.S. Pacific Fleet on December 17, 1941, Nimitz is credited with halting the Japanese offensive despite staggering losses of ships and arms during the Pearl Harbor attack on December 7, 1941.58 Nicknamed the “Island Hopper,” Nimitz successfully defeated the Japanese by using amphibious attacks in conjunction with the air force and submarine fleet.59 On October 5, 1945, Nimitz was THE CONCORD REVIEW 11 awarded the Gold Star by President Harry Truman for “exception- ally meritorious service as Commander in Chief, U.S. Pacific Fleet and Pacific Ocean Areas, from June 1944 to August 1945.”60 Nimitz’s testimony in Doenitz’s Nuremberg trial provided a stunning public insight into United States naval strategy during World War II and set the stage for Doenitz’s use of the Tu Quoque defense. Evidence from Nimitz’s deposition, taken on May 11, 1946,61 created great concern among the U.S. prosecutors. On July 2, 1946, Chester Nimitz’s deposition was introduced as evidence in Doenitz’s case.62 The pertinent information from the Nimitz deposition involved information about the United States’ actions and tactics in the Pacific Theater against Japan. In response questions of whether it was “customary in such areas for subma- rines to attack merchantmen without warning,” Nimitz replied, under oath, “Yes, with the exception of hospital ships and other vessels under safe conduct voyages for humanitarian purposes.” When asked if he was under orders to proceed that way, Nimitz responded, “The Chief of Naval Operations on 7 December 1941, ordered unrestricted submarine warfare against Japan.”63 In the space of roughly five minutes, Admiral Chester Nimitz revealed under oath that, similar to the Germans under Doenitz, the United States engaged in unrestricted submarine warfare. This was the same kind of aggressive warfare that formed the basis for Count Two against Doenitz, behavior that the Tribu- nal asserted violated international law. In addition to this revela- tion, Nimitz also revealed that the United States’ submarines were instructed not to attempt rescues of noncombatants if doing so endangered the submarine. This practice appeared to violate Article 22 of the London Naval Treaty to which the United States was a signatory.64 In Admiral Nimitz’s defense, the circumstances in the Pacific Theatre were radically different from those the German submarines confronted. According to Nimitz, Japanese merchant vessels were generally armed and acted as military combatants. In addition, survivors from Japanese vessels were often so hostile and violent that rescue missions could jeopardize the lives of the entire 12 Nicole A. Heise crew of the submarine. Nimitz asserted that his men always provided Japanese survivors with rubber boats and provisions to ensure that they could better endure exposure to the ocean.65 In addition, the Japanese used unrestricted naval and air warfare against the United States before the United States made it a policy to attack Japanese merchant vessels. Along with several instances involving American merchant vessels, the most notable occurrence of unrestricted submarine warfare on the part of the Japanese was Pearl Harbor on December 7, 1941. While Pearl Harbor was a military base, the attack qualified as an unrestricted attack due to the United States’ neutral position on World War II up to that point. In response to the , the United States formally entered World War II and ordered the navy to use unrestricted submarine warfare against Japan.66 It is some- what ironic, however, that the implicit justification for the United States’ use of aggressive warfare was that Japan was using this tactic as well. This, of course, is the same rationale Doenitz gave by raising the Tu Quoque defense against Count Two at the Nuremberg Tribunal. Nimitz’s deposition created problems for the judge for the United States at Nuremberg, United States Supreme Court Justice Robert H. Jackson. Swift action was necessary to preserve the reputation of the United States and that of the Nuremberg Tribunal. A memorandum from Nuremberg Tribunal staff attor- ney William J. Donovan to Justice Jackson in October, 1945, anticipating damaging information that would later emerge from Nimitz’s deposition, suggested that the charges against Doenitz should either be altered or dropped. Specifically, Donovan wrote to Justice Jackson: This suggests the need of having a critical examination made of the indictment with a view of giving consideration to the possibility of revision, in view of the effect upon the trial and public opinion—if the [Doenitz] indictment could be subject to ridicule.67 The Donovan memo makes clear that the United States prosecu- tors at the Nuremberg Tribunal were well aware of Nimitz’s actions, the problems they posed for the case against Doenitz, and THE CONCORD REVIEW 13 the implications for the Tu Quoque defense. Despite the pressure and possibility of public scandal or international ridicule, Count Two (the charge of waging aggressive warfare) was not dropped.68 Nimitz’s deposition, including the portions detailing American aggressive warfare tactics against Japan, was presented at Doenitz’s trial. Doenitz was found guilty on Count Two (waging aggressive warfare), despite his use of the Tu Quoque defense. The Tribunal also found Doenitz guilty on Count Three (war crimes), but not guilty of Count One (conspiracy to wage aggressive warfare).69

Assessing Doenitz’s Unusual Sentence at Nuremberg The Tribunal made things even more interesting at the sentencing phase of Doenitz’s trial. Doenitz received a ten-year prison sentence for his war crimes conviction (Count Three).70 However, for the charge of waging aggressive war, Count Two, the only charge in which the Tu Quoque defense was used, Doenitz was not sentenced at all even though he had been found guilty.71 Although the absence of any specific sentence for the aggressive war conviction may seem unimportant, it is vital to the status of the Tu Quoque defense and its current legacy. It is highly unusual for a criminal, let alone a war criminal, to be found guilty for a crime and yet not sentenced for that crime. Taking this unusual course of action suggests that the Nuremberg Tribunal was not entirely confident in the guilty verdict it ren- dered on Count Two, and was therefore unwilling to impose an additional sentence on Doenitz for Count Two. After all, Doenitz was convicted and sentenced on Count Three (war crimes) for which he was to serve ten years in prison. Thus, the Tribunal’s decision not to sentence Doenitz on the aggressive warfare convic- tion did not mean that Doenitz went unpunished for his conduct. Independent of Doenitz’s personal fate, however, was the fate of the Tu Quoque defense. It can be argued that the Nuremberg War Tribunal established precedent for rejecting the Tu Quoque defense. The Tribunal found Doenitz guilty of waging aggressive warfare, regardless of the ample evidence suggesting that one 14 Nicole A. Heise member of the prosecuting party (the United States) engaged in similar behavior. This suggests that the Tribunal did not find Doenitz’s defense persuasive or compelling enough to find him innocent of the charge. Had the Tribunal accepted the Tu Quoque defense as viable, the Tribunal would have found Karl Doenitz not guilty of waging aggressive warfare (Count Two). The Nuremberg War Tribunal’s handling of Doenitz’s case can also be interpreted as not explicitly rejecting the Tu Quoque defense. While the Tribunal technically rejected the Tu Quoque defense by finding Doenitz guilty on Count Two, the Tribunal declined to sentence Doenitz for the aggressive warfare conviction. This failure to attach any sentence to the conviction raises the possibility that the Tribunal may have found Doenitz’s Tu Quoque defense persuasive after all.

The Current Status of the Tu Quoque Defense Modern examples of the Tu Quoque defense raised by defendants tried in international criminal tribunals often occur in high profile cases. One case involved Slobodan Milosevic’s violent Serbian regime in the former Yugoslavia.72 The International Tribunal for the former Yugoslavia also tried Croation defendants Stipo Alilovic, Drago Josipovic, Marinko Katava, Mirjan Kupreskic, Vlatko Kupreskic, Zoran Kupreskic, Dragan Papic, and Vladimir Santic, all of whom were charged with various infractions of international law, including breaking the Geneva Conventions, breaches of the laws and customs of war, genocide, and crimes against humanity.73 Specifically, the defendants were accused of participating in the destruction of the villages of Ahmic and Herzegovina in Bosnia in October 1992, and April 1993, respec- tively.74 The Croatian militants were accused of both murdering and evicting a huge number of Muslim citizens during a campaign of ethnic cleansing, effectively committing genocide.75 The defendants attempted to raise what amounted to a Tu Quoque defense regarding the genocide charges against Muslims.76 The defendants claimed that there was constant violence and THE CONCORD REVIEW 15 discrimination between the Croats and the Muslims, and that the Muslims also targeted Croat citizens.77 The Tribunal was unmoved by these arguments. It found the Tu Quoque defense insufficient to excuse the defendants’ actions.78 There are several reasons for the Tu Quoque defense’s rejection by international courts today. Despite the ambiguities surrounding the Tu Quoque defense discussed in this essay, many tribunals cite Nuremberg as a clear precedent for rejecting the Tu Quoque defense. In addition, there is a movement to a more moral and ethical application of laws and rules on the international stage. Since Nuremberg, international law has evolved and grown. During World War II, retaliatory responses were much more common and accepted. The “eye for an eye, tooth for a tooth” norm was more prevalent than it is today.79 In contrast, today it is no longer acceptable to engage in illegal activities merely because an enemy already did so. Countries are now expected to uphold international law, regardless of the circumstances.80 This shift in attitude and practice is evidence of international law’s effort to move towards a more humanitarian and responsible world.

Conclusion The Tu Quoque defense’s precedent based on the Nuremberg Tribunal is ambiguous. The disparity between Doenitz’s conviction on Count Two and the lack of a sentence for the conviction makes it unclear whether the Nuremberg Tribunal accepted or rejected the Tu Quoque defense. What is clear, how- ever, is that the Tribunal did not want to deal with the complex legal and moral issues presented by the Tu Quoque defense. The Tu Quoque defense called into question the reputation of a member of the prosecuting party, the United States, and by implication the neutrality of the Nuremberg Tribunal. The Tribunal concluded that it could not allow Doenitz to be found not guilty on the aggressive warfare charge with so much evidence of his guilt. However, the Tribunal also concluded that it could not punish Doenitz for his aggressive warfare actions because that would 16 Nicole A. Heise implicate the conduct of the United States during the war. Instead, the Tribunal likely counted on the fact that Doenitz was guilty of and sentenced for another charge. In this way the Tribunal sidestepped a veritable moral and legal minefield while still ensuring that Doenitz was punished for his crimes. In short, the Military Tribunal at Nuremberg decided not to decide the fate of the Tu Quoque defense. They left the question of the legitimacy of the Tu Quoque defense for later generations, such as ours, to resolve. THE CONCORD REVIEW 17

1 Michael P. Scharf, “The Legacy of the Milosevic Trial ” New England Law Review 37 (2003) p. 925 2 Michael P. Sharf, “The International Trial of Slobodan Milosevic: Real Justice or Realpolitik?” ILSA Journal of International and Comparative Law 8 (Spring 2002) p. 397 3 Ian Johnston, “Saddam Steps Up His Defense, ” 11 December 2004 [essay online]; Available from http:// news.scotsman.com/international.cfm?id=1415872004; Internet: accessed on 20 May 2007 4 Stephanie Berlin, “Memorandum for the Office of the Prosecutor. Issue 3: The Tu Quoque Defense,” Case Western Reserve University School of Law International War Crimes Project (November 2002) p. 2 5 Peter Padfield, Donitz: The Last Fuhrer (New York: Harper & Row Publishers 1984) p. 20 6 Ibid., p. 26 7 Ibid., p. 26 8 Ibid., p. 35 9 Ibid., p. 57 10 Ibid., p. 60 11 Ibid., p. 82 12 Ibid., p. 91 13 Ibid., p. 100 14 Ibid., p. 103 15 Ibid., p. 110 16 Ibid., p. 153 17 Ibid., p. 123 18 Ibid., p. 156 19 Ibid., pp. 152-153 20 Ibid., pp. 152-153 21 Airey Neave, On Trial at Nuremberg (: Little, Brown and Company, 1978) p. 204 22 Jonathan Dunder, “Karl Donitz Biography,” The Free Information Society [essay online]; Available from http:// www.freeinfosociety.com/site.php?posthum=802; Internet: accessed on 23 September 2007 23 Howard S. Levie, “Submarine Warfare: With Emphasis on the 1936 London Protocol,” in The Law of Naval Warfare: Targeting Enemy Merchant Shipping, ed. Richard J. Grunawalt (Newport, Rhode Island: Naval War College, 1993) p. 47 24 International Treaty for the Limitation and Reduction of Naval Armament 22 April 1930 [treaty online]; Available from 18 Nicole A. Heise

http://www.microworks.net/pacific/road_to_war/ london_treaty.htm; Internet: accessed on 20 May 2007 25 Sally V. Mallison and W. Thomas Mallison, “The Naval Practices of Belligerents in World War II: Legal Criteria and Development, ” in Grunawalt, p. 89 26 L.F.E. Goldie, “Targeting Enemy Merchant Shipping: An Overview of Law and Practice, ” in Grunawalt, p. 6 27 “World War II,” A Biography of America [essay on line]; Available from http://www.learner.org/biographyofamerica/ prog22transcript/index.html; Internet: accessed on 22 September 2007 28 Ibid. 29 Ibid. 30 “Unrestricted Submarine Warfare,” Spartacus Education [essay online]; Available from http://www.spartacus.schoolnet. co.uk/FWWunrestricted.htm; Internet: accessed on 20 May 2007 31 “The Sinking of the Athenia,” The Kemble Collection [essay online]; Available from http://www.mikekemble.com/ ww2/athenia.html; Internet: accessed on 20 May 2007 32 Neave, p. 205 33 Ibid., p. 206 34 Ibid., p. 206 35 Ibid., p. 208 36 Padfield, p. 407 37 Ibid., p. 410 38 Ibid., p. 412 39 Ibid., p. 414 40 Ibid., p. 433 41 Peter Calvocoressi, Nuremberg: The Facts, the Law and the Consequences (New York: The Macmillan Company, 1948) p. 16 42 Ibid., p. 16 43 Sheldon Glueck, The Nuremberg Trial and Aggressive War (New York: Alfred A. Knopf, 1946) p. 3 44 Ibid., p. 17 45 Ibid., p. 10 46 Neave, pp. 44-47 47 Calvocoressi, pp. 17, 62 48 Ibid., p. 17 49 Ibid., p. 10 50 Neave, p. 69 THE CONCORD REVIEW 19

51 Richard Barry, Nuremberg: A Nation on Trial (New York: Charles Scribner’s Sons, 1979) p. 217 52 Sally V. Mallison and W. Thomas Mallison, “The Naval Practices of Belligerents in World War II: Legal Criteria and Development,” in Grunawalt, p. 92 53 Neave, p. 204 54 Ibid., p. 206 55 Ibid., p. 209 56 Michael P. Scharf, “Issue #20: Can the Defendants Raise the “Tu Quoque” Defense?” 22 November 2005, “Grotian Moment: The International ” [essay online]; Available from http://lawwww.cwru.edu/saddamtrial/ entry.asp?entry_id=34; Internet: accessed on 24 March 2006 57 Official Transcript of the International Military Tribunal; Chester W. Nimitz (by affidavit), 2 July 1946, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XLVIII, Part 1, p. 12,795 58 “Pearl Harbor Raid, 7 December 1941- Overview and Special Image Selection,” 7 October 2000, Department of the Navy: Navy Historical Center [essay online]; Available from http://www.history.navy.mil/photos/events/wwii-pac/ pearlhbr/pearlhbr.htm; Internet: accessed on 20 May 2007 59 “Fleet Admiral Chester W. Nimitz,” The National Museum of the [essay online]; Available from http:// www.nimitz-museum.org/nimitzbio.htm; Internet: accessed on 20 May 2007 60 Mark J. Denger, “Fleet Admiral Chester W. Nimitz: A Five Star Submariner,” California State Military Department, California State Military Museum [essay online]; Available from http://www.militarymuseum.org/Nimitz.html; Internet: accessed on 20 May 2007 61 Official Transcript of the International Military Tribunal; Chester W. Nimitz (by affidavit), 2 July 1946, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XLVIII, Part 1, p. 12,795 62 Ibid. 63 Official Transcript of the International Military Tribunal; Chester W. Nimitz (by affidavit), 2 July 1946, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XLVIII, Part 1, p. 12,796 64 Howard S. Levie, “Submarine Warfare: With Emphasis on the 1936 London Protocol,” in Grunawalt, p. 47 20 Nicole A. Heise

65 Official Transcript of the International Military Tribunal; Chester W. Nimitz (by affidavit), 2 July 1946, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XLVIII, Part 1, p. 12,798 66 “Why America Entered World War II,” [essay online]; Available from http://wiki.answers.com/Q/Why_did_the_US_ become_involved_in_World_War_2; Internet: accessed on 20 May 2007 67 Memo to Mr. Justice Jackson, William J. Donovan, 22 October 1945, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XIX, 62.02 68 “Trial Watch: Karl Doenitz,” Trial Watch [essay online]; Available from http://www.trial-ch.org/en/trial-watch/profile/ db/legal-procedures/karl_doenitz_65.html; Internet: accessed on 20 May 2007 69 “The : IMT Charter, Indictments Verdicts and Sentencing of Major War Figures,” [documents online]; Available from http://www.law.umkc.edu/faculty/ projects/ftrials/nuremberg NurembergIndictments. html#Indictments; Internet: accessed on 20 May 2007 70 M. DeVabres, “Judgment: The Defendants: Doenitz,” The Nizkor Project [essay online]; Available from http:// www.nizkor.org/hweb/imt/tgmwc/judgment/j-defendants- doenitz.html; Internet: accessed on 20 May 2007 71 M. DeVabres, “Judgment: Doenitz,” The Avalon Project at Yale Law School [essay online]; Available from http:// www.yale.edu/lawweb/avalon/imt/proc/juddoeni.htm; Internet: accessed on 20 May 2007 72 Kupreskic et al., (Trial Chamber), 14 January 2000, part 51, pp. 510-20 [decision online]; Available from http:// www.un.org/icty/kupreskic/trialc2/judgment/ 73 Ibid. pp. 510-12 Tu Quoque Defense,” Case Western Reserve University School of Law International War Crimes Project, November 2002, p. 25 75 Ibid. p. 25 76 Ibid. p. 26 77 Kupreskic et al., (Trial Chamber), 14 January 2000, part 51, pp. 510-12 [decision online]; Available from http:// www.un.org/icty/kupreskic/trialc2/judgment 78 Ibid. pp. 518-22 79 Stephanie Berlin, “Memorandum for the Office of the Prosecutor, Issue 3: The Tu Quoque Defense,” Case Western THE CONCORD REVIEW 21

Reserve University School of Law International War Crimes Project, November 2002, p. 7 80 Ibid. p. 3

Primary Sources:

International Treaty for the Limitation and Reduction of Naval Armament, 22 April 1930 [treaty online]; Available from http://www.microworks.net/pacific/road_to_war/ london_treaty.htm; Internet: accessed on 20 May 2007

Memo to Mr. Justice Jackson, William J. Donovan, 22 October 1945, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XIX, 62.02

Official Transcript of the International Military Tribunal; Chester W. Nimitz (by affidavit), 2 July 1946, archived in the Donovan/Cornell Collection, Cornell University, Ithaca, New York, Volume XLVIII, Part 1

Official Transcript of the International Tribunal for the Former Yugoslavia; Kupreskic et al., (Trial Chamber), 14 January 2000, par. 51, pp. 510-20 [decision online]; Available from http://www.un.org/icty/kupreskic/trialc2/judgment; Internet: accessed on 20 May 2007

Secondary Sources:

Barry, Richard. Nuremberg: A Nation on Trial. New York: Charles Scribner’s Sons, 1979

Berlin, Stephanie. “Memorandum for the Office of the Prosecutor. Issue 3: The Tu Quoque Defense,” Case Western Reserve University School of Law International War Crimes Project (November 2002)

Calvocoressi, Peter. Nuremberg: The Facts, the Law and the Consequences. New York: The Macmillan Company, 1948

Denger, Mark J. “Fleet Admiral Chester W. Nimitz: A Five Star Submariner,” California State Military Department, California State Military Museum [essay online]; Available from 22 Nicole A. Heise

http://www.militarymuseum.org/Nimitz.html; Internet: accessed on 20 May 2007

DeVabres, M. “Judgment: The Defendants: Doenitz,” The Nizkor Project [essay online]; Available from http:// www.nizkor.org/hweb/imt/tgmwc/judgment/j-defendants- doenitz.html; Internet: accessed on 20 May 2007

DeVabres, M. “Judgment: Doenitz,” The Avalon Project at Yale Law School [essay online]; Available from http:// www.yale.edu/lawweb/avalon/imt/proc/juddoeni.htm; Internet: accessed on 20 May 2007

Dunder, Jonathan. “Karl Donitz Biography,” The Free Information Society [essay online]; Available from http:// www.freeinfosociety.com/site.php?posthum=802; Internet: accessed on 23 September 2007

“Fleet Admiral Chester W. Nimitz,” The National Museum of the Pacific War [essay online]; Available from http:// www.nimitz-museum.org/nimitzbio.htm; Internet: accessed on 20 May 2007

Goldie, L.F.E. “Targeting Enemy Merchant Shipping: An Overview of Law and Practice.” In The Law of Naval Warfare: Targeting Enemy Merchant Shipping, ed. Richard J. Grunawalt. Newport, Rhode Island: Naval War College, 1993

Johnston, Ian. “Saddam Steps Up His Defense,” 11 December 2004 [essay online] Available from http:// news.scotsman.com international. cfm?id=1415872004; Internet: accessed on 20 May 2007

Levie, Howard S. “Submarine Warfare: With Emphasis on the 1936 London Protocol.” In The Law of Naval Warfare: Targeting Enemy Merchant Shipping, ed. Richard J. Grunawalt. Newport, Rhode Island: Naval War College, 1993

Mallison, Sally V. and W. Thomas Mallison. “The Naval Practices of Belligerents in World War II: Legal Criteria and Development.” In The Law of Naval Warfare: Targeting Enemy Merchant Shipping. ed. Richard J. Grunawalt. Newport, Rhode Island: Naval War College, 1993 THE CONCORD REVIEW 23

Neave, Airey. On Trial at Nuremberg. Boston: Little, Brown and Company, 1978

“The Nuremberg Trials: IMT Charter, Indictments, Verdicts and Sentencing of Major War Figures,” [documents online]; Available from http://www.law.umkc.edu/faculty/projects/ ftrials/nuremberg/NurembergIndictments.html#Indictments; Internet: accessed on 20 May 2007

Padfield, Peter. Donitz: The Last Fuhrer. New York: Harper & Row Publishers, 1984

“Pearl Harbor Raid, 7 December 1941- Overview and Special Image Selection,” 7 October 2000, Department of the Navy: Navy Historical Center [essay online]; Available from http://www.history.navy.mil/photos/events/wwii-pac/ pearlhbr/pearlhbr.htm; Internet: accessed on 20 May 2007

Scharf, Michael P. “The Legacy of the Milosevic Trial,” New England Law Review 37 (2003): pp. 915-933

Scharf, Michael P. “Issue #20: Can the Defendants Raise the “Tu Quoque” Defense?” 22 November 2005, Grotian Moment: The International War Crimes Trial [essay online]; Available from http://lawwww.cwru.edu/saddamtrial/ entry.asp?entry_id=34; Internet: accessed on 24 March 2006

Scharf, Michael P. “The International Trial of Slobodan Milosevic: Real Justice or Realpolitik?” ILSA Journal of International and Comparative Law 8 (Spring 2002): 389-401

“The Sinking of the Athenia,” The Kemble Collection [essay online]; Available from http://www.mikekemble.com/ww2/ athenia.html; Internet: accessed on 20 May 2007

“Trial Watch: Karl Doenitz,” Trial Watch [essay online]; Available from http://www.trial-ch.org/en/trial-watch/profile/ db/legal-procedures/karl_doenitz_65.html; Internet: accessed on 20 May 2007 24 Nicole A. Heise

“Unrestricted Submarine Warfare,” Spartacus Education [essay online]; Available from http://www.spartacus. schoolnet.co.uk/FWWunrestricted.htm; Internet: accessed on 20 May 2007

“Why America Entered World War II,” [essay online]; Available from http://wiki.answers.com/Q/ Why_did_the_US_become_involved_in_World_War_2; Internet: accessed on 20 May 2007

“World War II,” A Biography of America [essay on line]; Available from http://www.learner.org/biographyofamerica/ prog22transcript/index.html; Internet: accessed on 22 September 2007