¹ See, e.g., Schwarzenberger, , “The Problem of an International Criminal Law,” in Mueller, and Wise, , International Criminal Law 3 (1965)Google Scholar; Ryu, and Silving, , “International Criminal Law: A Search for Meaning,” in I Bassiouni and Nanda, A Treatise on International Criminal Law 22 (1972)Google Scholar; Bassiouni, , International Criminal Law 22 (1980)Google Scholar; Green, , “Is There an International Criminal Law?,” 21 Alberta Law Rev. 251 (1983).Google Scholar

² See, e.g., Convention for the Prevention and Punishment of Terrorism, 1937, in 7 Hudson, , International Legislation 863 Google Scholar; Statute for an International Criminal Court, 1937, ibid., 879.

³ See, e.g., Green, , “New Trends in International Criminal Law,” 11 Israel Yearbook on Human Rights 9 (1981).Google Scholar For a general history of efforts to establish an international criminal law, see Ferencz, , An International Criminal Court (1980).Google Scholar

⁴ See, e.g., opinion of Judicial Committee of Privy Council in Re Piracy Jure Gentium, [1934] A.C. 586, which should be compared with the decision of SirScott, Wm. in The Le Louis (1817), 2 Dods. 210,Google Scholar 165 Eng. Rep. 1464. See also Canadian Criminal Code, s. 75(1) : “Every one commits piracy who does an act which by the law of nations is piracy.” See, also, Geneva Convention on the High Seas, 1958, 450 UNTS 82, Art. 15, and UN Convention on the Law of the Sea, 1982, 21 Int’l Leg. Mat. 1261, Art. 101.

⁵ See, e.g., Genocide Convention, 1948, 78 UNTS 277, Art. I: “The Contracting Parties confirm that genocide … is a crime under international law which they undertake to prevent and punish.”

⁶ Art. 5: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide….”

⁷ Art. 6 : “Persons charged with genocide … shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

⁸ See, e.g., Kuper, , International Action against Genocide (1982), published by the Minority Rights Group, London.Google Scholar

⁹ Charter of the International Military Tribunal, Art. 6(a), annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 1945, 82 UNTS 280, Schindler, and Toman, , The Laws of Armed Conflicts 823 (1981).Google Scholar

¹⁰ Judgment, UK, Cmd. 6964 (1946), 13; 41 Am. J. Intl Law 172, 186 (1947) (italics added).

¹¹ To proceed by consensus has become common practice in the General Assembly and other international bodies, especially when it is believed that unanimity is unlikely to be achieved. The procedure enables states to avoid committing themselves. See, e.g., Kaufmann, , United Nations Decision Making 129–31 (1980)Google Scholar; Moskowitz, , The Roots and Reaches of United Nations Actions and Decisions 195–97 (1980).Google Scholar

¹² Res. 3314 (XXIX); the text of the draft definition which was adopted by the Assembly without amendment is reprinted in 13 Int’l Leg. Mat. 712 (1974).

¹³ Art. 5.

¹⁴ Res. 2625 (XXV) Annex, 9 Int’l Leg. Mat. 1292 (1970).

¹⁵ By Art. 3(g), aggression includes “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts” defined as aggression in the text.

¹⁶ In fact, there is nothing in Art. 2 of the Charter, which sets out the principles, that directly relates to self-determination or to condemnation of “colonial and racist regimes.”

¹⁷ For a collection of most of these conventions, see Schindler and Toman, op. cit. supra note 9.

¹⁸ See, e.g., Green, , “Human Rights and the Law of Armed Conflict,” 10 Israel Yearbook on Human Rights 9 (1980).Google Scholar

¹⁹ See Keen, , The Laws of War in the Late Middle Ages 34, 192–97 (1965).Google Scholar

²⁰ Act IV, Scene 7, 1. 1 (this statement is based on Holinshed’s Chronicles).

²¹ Glode, 1 Military Forces of the Crown, 1869, App. VI.

²² Carnegie tr. by Brierly, 253 (ch. 30).

²³ Keen, op. cit. supra note 19, at 21, states that the Tree of Battles was written by Honoré Bonet, and is to be found in numerous heraldic mss. of the fifteenth century (n. 1 ).

²⁴ E.g., Belli, 1563; Ayala, 1582; Gentili, 1612; Grotius, 1625; etc.

²⁵ General Orders No. 100, 1863, Schindler and Toman, op. cit. supra note 9, at 3.

²⁶ E.g., Arts. 11, 44, 47, 71 (italics added).

²⁷ U.S. v. Wirz (1865), H.R. Exec. Doc. No. яз, 40th Gong., 2nd Sess., 186768, vol. 8.

²⁸ U.S. v. Calley (1971, 1973) CM 426402, 46 CMR 1131; 48 CMR 19; 1 MLR 2488.

²⁹ Arts. 40, 41.

³⁰ 1874, Schindler and Toman, op. cit. supra note 9, at 25.

³¹ 1880, ibid., 35.

³² 1899. 1907, ibid., 57.

³³ Ibid., 65.

³⁴ See, e.g., ist ed. of Oppenheim, International Law, vol. 2, “War and Neutrality,” s. 254 (1906): “Since International Law is a law between States only and exclusively, no rules of International Law can exist which prohibit private individuals [— and this means all persons not in the armed forces —] from taking up arms and committing hostilities against the enemy. But private individuals committing such acts do not enjoy the privileged treatment of members of armed forces, and the enemy has according to a customary rule of International Law the right to consider and punish such individuals as war criminals. Hostilities in arms [— and this would include such acts as ramming a submarine —] committed by private individuals are … [acts which] the enemy has the right to consider and punish as acts of illegitimate warfare. …” This comment is repeated verbatim in all later editions of Oppenheim up to and including the 5th, the first edition by Lauterpacht. In the 6th and 7th, also edited by Lauterpacht, this is abbreviated to “Private individuals who take up arms and commit hostilities against the enemy do not enjoy the privileges of armed forces, and the enemy has, according to a customary rule of International Law, the right to treat such individuals as war criminals.”

³⁵ For allied criticism of the action against Captain Fryatt, see Garner, I, International Law and the World War 407–14 (1920), and 3rd (Roxburgh)Google Scholar ed. of Oppenheim, which describes the execution as “nothing less than judicial murder,” vol. 2, at 258, a description which has been maintained in every edition of Oppenheim: see 7th (Lauterpacht) ed., 1952, at 574.

³⁶ Her execution was condemned in highly emotional language by Garner, vol. 2, at 104–5, sne is regarded as a great Allied patriot who suffered judicial murder. It is interesting to note that none of the commentators mentions her abuses of her medical status. Roxburgh, op. cit. 347, n. 2, says that “even if … the charge was proved, so that the sentence might perhaps have been justified according to the letter of the law, the execution was an outrage, especially as the victim was a woman who had with equal devotion nursed German as well as French and English wounded” — but this is a duty of medical personnel in time of war. All Lauterpacht says in the 7th ed. is “see Garner, ii, ss. 382–386.” See also Green, , “War Law and the Medical Profession,” 17 Canadian Yearbook of International Law 159, 177–79 (1979).Google Scholar

³⁷ In his 2nd ed., 1912, Oppenheim states that a belligerent has the right to try enemy personnel, “whether soldiers or not,” who commit acts of war treason, and among the examples of such “treason” he includes “(6) Liberation of enemy prisoners of war,” s. 255, and it is in reference to this that Lauterpacht makes his Cavell/Garner reference : see supra note 36.

³⁸ 1919, 112 BFSP 1; 13 Am. J. Intl Law, 1919, Supp.

³⁹ Summaries of these trials are reproduced in 2 Ann. Dig., but the full texts of the judgments in Dover Castle and Llandovery Castle are reproduced in Cameron, , The Peleus Trial (1948),Google Scholar App. X, IX, resp., and of the Müller case in Schwarzenberger, , International Law and Totalitarian Lawlessness 113 (1943).Google Scholar See also Mullins, , The Leipzig Trials (1921).Google Scholar

⁴⁰ 2 Ann. Dig. 437.

⁴¹ Ibid., 437–38; Schwarzenberger, op. cit. supra note 39, at 144.

⁴² It is interesting in this connection to note the statements in the text International Law, published by the Academy of Sciences of the USSR Institute of State and Law in 1960 as “A Textbook for Use in Law Schools” and edited by Kozhevnikov, . At 415–18,Google Scholar in the chapter on the Laws and Customs of War which he wrote, it states: “Imperialist States … frequently violate the laws and customs of war and ignore the undertakings which they have given under the terms of international treaties. The history of modern war demonstrates that imperialist aggression is customarily accompanied by the gross violation of all the universally recognised laws and customs of war and of the most elementary principles of humanity. … The founders of Marxist-Leninism vigorously opposed the infringement of the elementary principles of humanity by aggressors. … It should be emphasized that even before the emergence of the socialist State, the behaviour of [imperial] Russian troops in all the wars that the Russian people had to wage in defence of their independence and honour was marked by the strict observance of the laws and customs of war and the principles of humanity. … The Soviet Union’s unswerving observance of the laws and customs of war during the Great Patriotic War was a vivid demonstration of socialist humanism. … ”

⁴³ Both Dover Castle and Llandovery Castle, supra note 39, dealt with the sinking of hospital ships.

⁴⁴ The Müller case, ibid., concerned the ill treatment of prisoners of war.

⁴⁵ 118 LNTS 303, Schindler and Toman, op. cit. supra note 9, at 257, Arts. 29, 30.

⁴⁶ 118 LNTS 343; ibid., 271.

⁴⁷ Arts. 83, 85.

⁴⁸ See, e.g., Statement by Foreign Secretary Eden, Dec. 17, 1942, Hansard, , Commons, vol. 385, cols. 2082–84Google Scholar; see also the Collective Notes (Punishment for War Crimes, No. 2) presented to the governments of the UK, USSR, and USA, July 21, 1942, published by HMSO.

⁴⁹ This was the name of the wartime alliance against the Axis Powers.

⁵⁰ Nov. 1, 1943, UK, HMSO, The History of the United Nations War Crimes Commusion and the Development of the Laws of War 107–8 (1948). See also the Inter-Allied Declaration on Punishment for War Crimes, of Jan. 13, 1942, published by HMSO.

⁵¹ In fact, it did not take very long before the western powers stopped their search for and return of alleged war criminals.

⁵² Recently, the United States has removed the naturalization or immigrant status of some former Nazis who had entered the United States without disclosing their membership in the party, and has returned such persons to stand trial in the German Federal Republic: see, e.g., U.S. v. Walus (1978), 453 F. Supp. 699; U.S. v. Federenko (1979), 597 F. 2d 246. See also Canadian case of Federal Republic of Germany v. Rauca (1982), 38 O.R. 2d 705; but see Green, , “Canadian Law and the Punishment of War Criminals,” 28 Chitty’s Law J. 249 (1980).Google Scholar

⁵³ For a collection of war crimes trials in a variety of jurisdictions, see the 15 volumes of Law Reports of Trials of War Criminals published by HMSO for the United Nations War Crimes Commission, 1947–49. Later cases may be found in various volumes of the Annual Digest and the International Law Reports. See also Eichmann v. Attorney-General of the Government of Israel (1962), 36 ILR 5-342; see also Green, , “Legal Issues of the Eichmann Trial,” 37 Tulane Law Rev. 641 (1963).Google Scholar

⁵⁴ See supra note 9. Similar provisions were made with regard to the major war criminals in the Far East Theatre.

⁵⁵ See, however Schwarzenberger, , International Law, vol. 2, “The Law of Armed Conflict,” ch. 39 (1968),Google Scholar for an account of the trial at Breisach of Peter von Hagenbach by a tribunal of 28 judges drawn from the towns of the Hanseatic League.

⁵⁶ Art. 6(c).

⁵⁷ op. cit. supra note 10, at 65, 249, resp.

⁵⁸ See Schwelb, , “Crimes against Humanity,” 23 Brit. Y.B. Intl Law 178, 205-12 (1946).Google Scholar

⁵⁹ [1922] 1 A.C. 313.

⁶⁰ 1907, Schindler and Toman, op. cit. supra note 9, at 703.

⁶¹ At 324–26.

⁶² op. cit. supra note 10, at 65, 248–49, resp. See also Tokyo Judgment (Intl Mil. Trib. for Far East) (1948), 13 Ann. Dig. 356, 365–66.

⁶³ Res. 95 (I), Schindler and Toman, supra note 9, at 833.

⁶⁴ Ibid., 835; YBILC 1950, Vol. II, 374.

⁶⁵ Principles VI, VII.

⁶⁶ See The State v. Director of Prisons, ex p. Schumann (1966), 39 ILR 433, extradition case decided by Ghana Court of Appeal.

⁶⁷ See, e.g., Dinstein, , The Defence of “Obedience to Superior Orders” in International Law (1965)Google Scholar; Green, , Superior Orders in National and International Law (1976)Google Scholar; Keijzer, , Military Obedience (1978).Google Scholar

⁶⁸ Neither the Nuremberg Charter (Art. 8) nor the Tribunal (Judgment, op. cit. supra note 10, at 83, 92, 118, and 271–72, 283, 316, resp.) refers to the question of choice; both accept that obedience to orders may be taken into consideration by way of mitigation.

⁶⁹ See, e.g., Kelsen, , “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?,” 1 Intl L.Q. 153 (1947).Google Scholar

⁷⁰ (1948) Ind Mil. Trib. for the Far East, 15 Ann. Dig. 356, 362–63.

⁷¹ Re Roechling (1948), General Trib. of Mil. Govt, for French Zone, ibid., 398, 405; Re Garbe (1947), Oberlandsgericht, Kiel, ibid., 419, 420; Re Aalbrecht (No. 2) (1948), Netherlands, Special Crim. Ct., Arnhem, 16 ibid., 396, etc.

⁷² Dec. 20, 1945, XV Dept. of State Bulletin, No. 384, Nov. 10, 1946, at 862; the text is summarized in 11 Whiteman, Digest of International Law 895, and reproduced in full in Taylor, , Nuremberg Trials: War Crimes and International Law, International Conciliation, pamphlet No. 450, Apr. 1949, at 358.Google Scholar

⁷³ See, e.g., Re Von Leeb (German High Command Trial) (1948), U.S. Mil. Trib., Nuremberg, 13 Ann. Dig. 376, 377.

⁷⁴ Loc. cit. supra note 53, at 39–42, 45–48, etc., 288, 295, etc., resp.

⁷⁵ See, e.g., U.S. v. Kinder (1954), 14 CMR 742. In fact, the court accepted the view of the U.S. Mil. Trib. at Nuremberg in Re Ohlendorf (Einsatzgruppen case) (1948), 4 Nuremberg Mil. Tribs. 470; see also U.S. v. Schreiber (1955), 18 CMR 226.

⁷⁶ See supra note 28. See also U.S. v. Griffen (1969), 39 CMR 108; U.S. v. Hutto (1969), ibid., 586.

⁷⁷ Re Captain Smith, The Times (London), Apr. 8, io, 12, 14, May 1, 28, 29, June ι, 17, 1948.

⁷⁸ Military Prosecutor v. Melinki (Kafr Kassem incident) Jerusalem Post, Oct. 16–18, 1958; Nov. 22, 24, 1959.

⁷⁹ (I) Wounded and Sick; (II) Wounded, Sick and Shipwrecked; (III) Prisoners of War; (IV) Civilians: Schindler and Toman, op. cit. supra note 9, at 305, 333. 355, 427. resp.

⁸⁰ Arts. 49, 50, 129, 146, resp.

⁸¹ Arts. 50, 51, 130, 147, resp.

⁸² 1977, Schindler and Toman, supra note 9 at 551, Arts. 11, 85.

⁸³ Art. 85(4) (c).

⁸⁴ 1973, Gen. Ass. Res. 3068 (XXVIII) Annex, 13 Int’l Leg. Mat. 50 (1974).

⁸⁵ (1946) 4 Reports of Trials of War Criminals 1, 34–35. See also Abbaye Arderme Case (in re Meyer) (1945), ibid., 97 — a fuller extract taken from the unpublished transcript is reproduced in Green, , “Canada’s Role in the Development of the Law of Armed Conflict,” 18 Canadian Yearbook of International Law 91, 105–6 (1980).Google Scholar See also Parks, , “Command Responsibility for War Crimes,” 62 Mil. Law Rev. 103 (1973).Google Scholar

⁸⁶ Art 6 in fine (italics added).

⁸⁷ Arts. 86, 87.

⁸⁸ To assist commanders in this task, Art. 82 provides for the attachment of legal advisers; see Green, , “The Role of Legal Advisers in the Armed Forces,” 7 Israel Y.B. on Human Rights 154 (1977),Google Scholar while Art. 83 calls for the inclusion of the study of the Conventions and the Protocol in programs of military instruction.

⁸⁹ Art. 88.

⁹⁰ 1973, 22 Int’l Leg. Mat. 473 (1983).

⁹¹ At 493–96, 496–99, 502–3, 505–14. See also Green, , “War Crimes, Extradition, and Command Responsibility,” 14 Israel Y.B. Human Rights 78–108 (1984).Google Scholar

⁹² Art. 90.

⁹³ I-Art. 52, II-53, III-132, IV-149.

⁹⁴ Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Schindler and Toman, op. cit. supra note 9, at 109.

⁹⁵ The Times, Mar. 28, 1984.

⁹⁶ op. cit. supra note 31.