1 Philippe, Burrin, Hitler et les Juifs 142, 148, 163, 166–67, 172 (1989)Google Scholar.

2 N.Y. Times, Nov. 6, 1996, at A5.

3 All citations of the canon are to William, Shakespeare, The Complete Works (Stanley, Wells & Gary, Taylor eds., 1988)Google Scholar. References are to act, scene and line. Some of the information in table 1, above, is taken from Blacks Law Dictionary 1657 (6th ed. 1990).

4 Narrative and Dramatic Sources of Shakespeare 260, 324–25 (Geoffrey, Bullough ed., 1966)Google Scholar [hereinafter Sources of Shakespeare] .

5 Boswell-Stone, W. G., Shakespeare’s Holinshed: The Chronicle and the Plays Compared 161–63 (1968)Google Scholar.

6 Theodore, F. T. Plucknett, A Concise History of the Common Law 49 (5th ed. 1956)Google Scholar. The issues pertaining to the authority of the king, judges, and Parliament were clearly joined in 1607, when the king argued that Coke’s views on the supremacy of the common law and the judges’ authority to be the uncontrolled interpreters of this law meant that “I shall be under the law, which it is treason to affirm; to which, says Coke, I replied that Bracton, saith, quod Rex non debet esse sub homine, sed sub Deo et lege.” 5 Google Scholar Holdsworth, W. S., A History of English Law 430 & nn.2–3 (4th rev. ed. 1927)Google Scholar. Although this is not the place to discuss the dynamics of executive acceptance of decisions of the judiciary, one might consider Truman’s prompt acceptance of the decision of the U.S. Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that the confiscated steel mills should be returned to the owners; and Nixon’s eventual surrender of the tapes in response to the Court’s ruling in United States v. Nixon, 418 U.S. 683 (1974), see Stanley, I. Kutler, The Wars of Watergate 409, 513–16 (1990)Google Scholar. On “culture of compliance,” see Louis, Henkin, International Law: Politics, Values and Functions , 216 Recueil des Cours 71 (1989 IV)Google Scholar.

7 Walter, Kaiser, Praisers of Folly: Erasmus, Rabelais, Shakespeare 210 (1963)Google Scholar.

8 David, Bevington, The Complete Works of Shakespeare at A–25 (1997)Google Scholar.

9 Kaiser, supra note 7, at 209–10.

10 Desiderius, Erasmus, The Education of a Christian Prince (Lester, K. Born trans., 1936) (1540)Google Scholar.

11 Id. at 113.

12 Id. at 122–23.

13 Id. at 189.

14 Bevington, supra note 8, at xxiv.

15 Alberico, Gentili, de Legationibus Libri Tres 156 (Carnegie, ed., Gordon, J. Laing trans. 1924) (1594)Google Scholar; Max, Lerner, Introduction to Niccolo Machiavelli, The Prince and the Discourses at xxxvi-xxxvii (Max, Lerner ed., 1950)Google Scholar.

16 Erasmus, supra note 10, at 163.

17 Id. at 113, 117.

18 James, Boyd White, Acts of Hope 50 (1994)Google Scholar.

19 Theodor, Meron, Henry’s Wars and Shakespeare’s Laws 199–202 (1993)Google Scholar. See also Jack, Benoit Gohn, Richard II: Shakespeare’s Legal Brief on the Royal Prerogative and the Succession to the Throne , 70 Geo. L.J. 943 (1982)Google Scholar.

20 Maurice, H. Keen, The Laws of War in the Late Middle Ages 162 (1965)Google Scholar.

21 For a fuller discussion, see Theodor, Meron, Bloody Constraint: War and Chivalry in Shakespeare, ch. IX Google Scholar (forthcoming).

22 Giovanni, da Legnano, Tractatus, de Bello, de Represauis et de Duello 234 (Carnegie, ed., Brierly, J. L. trans. 1917)Google Scholar (completed 1360).

23 Honoré, Bouvet (Bonet), The Tree of Battles, ch. lxxii, at 169 (Coopland, G. W. ed., 1949) (c. 1387)Google Scholar.

24 Legnano, supra note 22, at 289.

25 Meron, supra note 19, at 14–15.

26 2 Alberico, Gentili, De jure belli libri tres 152–53 (Carnegie, ed., John, C. Rolfe trans. 1933) (1612)Google Scholar. This is the 1931 translation of the 1612 edition. The first part of the book was first published in 1588, the second and third parts in 1589. Gentili argued that kings were not allowed to alienate their subjects. Id. at 373. See also Meron, supra note 19, at 189.

27 Frances, A. Shirley, Swearing and Perjuryin Shakespeare’s Plays 80–81 (1979)Google Scholar. For the legal arguments invoked by Shakespeare’s characters to evade promises against interest, see Meron, supra note 21.

28 See generally Ernst, H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (1957)Google Scholar.

29 Meron, supra note 19, ch. 8. For a discussion of modern humanitarian law, see Theodor, Meron, Rape as a Crime under International Humanitarian Law , 87 AJIL 424 (1993)Google Scholar.

30 While urging generals to prohibit and prevent rape during the sacking of a city, Vitoria reluctantly admitted the lawfulness of allowing soldiers to sack a city if “the necessities of war” required it, or “as a spur to the courage of the troops,” even when rape would result. Franciscus de Vitoria, de Indis et de jure belli relectiones 184–85 (52) (Carnegie ed., John Pawley Bate trans. 1917) (1557, posthumous). Gentili categorically rejected the permissibility of rape. Gentili, supra note 26, at 257. See also Theodor, Meron, Common Rights of Mankind in Gentili, Grotius and Suárez , 85 AJIL 110, 115–16 (1991)Google Scholar.

31 Contamine wrote that this question was discussed infrequently in medieval sources. Philippe Contamine, War in the Middle Ages 287 (1984). It was, however, a significant topic in the Catholic just war tradition.

32 Id. at 288.

33 Id. at 264, 267. Saint, Augustine, The City of God 1(21), 1(26) (Henry, Bettenson trans., Pelican Books 1972) (1467)Google Scholar.

34 Joseph, Satin, Shakespeare and His Sources 582 (1966)Google Scholar (quoting Plutarch, Parallel Lives (Thomas North trans. 1579)).

35 Thomas, Nagel, War and Massacre , in War and Moral Responsibility 3, 5 (Marshall, Cohen, Thomas, Nagel & Thomas, Scanlon eds., 1974)Google Scholar; Bernard, Williams, A Critique of Utilitarianism , in Utilitarianism: For and Against 77, 94–95 (Smart, J. J. C. & Bernard, Williams eds., 1963)Google Scholar.

Because utilitarianism-consequentialism attaches value to states of affairs, a person is as responsible for things that he/she allows or fails to prevent (negative responsibility) as for things that he/she causes (positive responsibility). However, critics of utilitarianism and supporters of the deontological theory of ethics, who stress individual rights and responsibilities in contrast to utilitarianism’s emphasis on consequences, accord negative responsibility much weaker significance than positive responsibility. Most nonutilitarians think it would be wrong to fail to throw a life preserver to someone drowning, if this involved little cost. But if the cost of preventing the death of another is substantial, the requirement may disappear, unlike the prohibition against killing.

36 The Nuremberg Charter was adopted by the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279.

37 [1950] 2 Y.B. Int’l L. Comm’n 376, UN Doc. A/CN.4/SER.A/1950/Add.1.

38 In re Yamashita, 327 U.S. 1 (1946).

39 Id. at 16.

40 Id. at 34–35 (Murphy, J„ dissenting).

41 Michael, Walzer, Just and Unjust Wars 320 (1977)Google Scholar.

42 421 U.S. 658 (1974).

43 Id. at 671.

44 Id. at 683 (Stewart, J., dissenting).

45 See, e.g., William, H. Parks, Command Responsibility for War Crimes , Mil. L. Rev., Fall 1973, at 1, 37, 40–42, 103Google Scholar.

46 Walzer, supra note 41, at 319–22.

47 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Protocol I].

48 Christopher, N. Crowe, Command Responsibility in the Former Yugoslavia: The Chances for a Successful Prosecution , 29 U. Rich. L. Rev. 191, 229 (1994)Google Scholar. It remains to be seen whether the Hague Tribunal will consider Article 7(3) of its Statute to be significantly different from Article 86(2) of Protocol I, supra note 47.

49 Thomas, Nagel, Ruthlessness in Public Life , in Public and Private Morality 75, 78–79 (Stuart, Hampshire ed., 1978)Google Scholar.

50 Id. at 90.

51 Richard, H. Weisberg, Vichy Law and the Holocaust in France 65 (1996)Google Scholar.

52 Jonathan, Glover, Responsibility 176 (1970)Google Scholar.

53 Id. at 178.

54 Prosecutor v. Erdemović, Case No. IT–96–22-A, Appeals Judgment (Oct. 7, 1997), discussed in note 57 infra [hereinafter Erdemović Appeal]. See also Theodor, Meron, The Normative Impact on International Law of the International Tribunal for Former Yugoslavia , 24 Isr. Y.B. Hum. Rts. 163, 180–82 (1995)Google Scholar; Steven, R. Ratner & Jason, S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond The Nuremberg Legacy 123 (1997)Google Scholar.

55 United States v. Von Leeb, 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 462, 509–15, 542–49 (1950) [hereinafter Trials]. See also United States v. List, id. at 757, 1236.

56 Von Leeb, 11 Trials, supra note 55, at 525–26.

57 Erdemović had been sentenced to 10 years’ imprisonment, following his guilty plea to one count of a crime against humanity, for participating in the mass execution of a large number of civilian Muslim men in the aftermath of the fall of Srebrenica, Erdemović invoked duress, alleging that when he had at first refused to join in the massacre, he was told that he himself would be shot together with the Muslims. See further infra notes 81–86 and corresponding text. Cassese argued that, where the accused has been charged with participation in a collective killing that would have proceeded irrespective of whether the accused was a participant, the defense has been allowed in principle in some cases, and that Erdemović had not enjoyed any real moral choice. Cassese stated the utilitarian argument. Erdemović Appeal, supra note 54, Separate and Dissenting Opinion of Judge Cassese, at 58. See also note 35 supra. The absolutist argument was framed by Judges McDonald and Vohrah. Erdemović Appeal, supra, Joint Separate Opinion of Judge McDonald and Judge Vohrah, at 65.

Brackenbury, in contrast to Erdemović, was not required to participate in murder, but only to hand the Duke over. Thomas Nagel’s comment on absolutism is apposite to his case: “not everything that happens to others as a result of what one does is something that one has done to them.” Nagel, supra note 35, at 10.

58 Eliot, T. S., Murder in the Cathedral pt. II, at 77 (1935)Google Scholar.

59 Boswell-Stone, supra note 5, at 125–26. See also Edward Hall, Hall’s Chronicle 20 (1809) (photo, reprint 1965) (1548); Satin, supra note 34, at 103–04; 3 Sources of Shakespeare, supra note 4, at 413–14. In both Holinshed and Shakespeare (Richard II, V.v.114–16), Exton demonstrates remorse for his actions.

60 Telling of the start of the episode, Holinshed writes that King Henry said: “Haue I no ‘faithfull freend which will deliuer me of him, whose life will be my death, and whose death will be the preseruation of my life?’ This saieng was much noted of them which were present, and especiallie of one called sir Piers of Exton.” Boswell-Stone, supra note 5, at 125; Hall, supra note 59, at 20; 3 Sources of Shakespeare, supra note 4, at 413; Satin, supra note 34, at 103. A Myrroure for Magistrates (anon. 1559) suggests a more explicit order to Exton, explaining that, “[t]o dash all dowtes [about his reign], he [the king] tooke no farther pause/But sent sir Pierce of Exton a traytrous knight/To Pomfret Castell, with other armed light.” Sources of Shakespeare, supra, at 415, 422. In The First Fowre Bookes of the Civile Wars (1595), Samuel Daniel, like Shakespeare, is more subde. He writes that “Henry desired Richard’s death,” so that

Id. at 434, 456–57. In a footnote the editor, Bullough, notes that in the margin of the manuscript was written: “This Knight was Sir Pierce of Exton.” Id. at 457 n.1.

61 The character of a courtier ready to kill at the mere wink of authority is well described in the 1595 poem by Samuel Daniel, supra note 60, which Shakespeare may have read:

The man he knew was one that willingly

For one good looke would hazard soule and all,

An instrument for any villanie,

That needed no commission more at all:

A great ease to the king that should hereby

Not need in this a course of justice call,

Nor seeme to wil the act, for though what’s wrought

Were his own deed, he grieves should so be thought. . . .

. . .

This knight, but o why should I call him knight

To give impiety this reverent stile,

Title of honour, worth, & vertues right

Should not be given to a wretch so vile?

Id. at 457.

62 Christine de, Pisan, Book of Fayttes of Armes and of Chyvalrye 13–14 (William, Caxton trans. 1489, Byles, A. ed. 1932)Google Scholar (written 1408–09). See also Meron, supra note 19, at 18–19, 27–28; Hexter, J. H., The Vision of Politics on the Eve of the Reformation 82–93 (1973)Google Scholar.

63 Shakespeare’s Richard III calls attention to a courtier’s responsibility to discourage crimes by leaders when King Edward complains bitterly that none of his aides had pleaded against his order to execute the Duke of Clarence (Richard III, II.i.107–33).

64 Writings on the Second World War demonstrate that orders to commit atrocities were often not accompanied by duress, at least, as Michael Walzer pointed out, not to the extent of implicating the risk of death. Walzer, supra note 41, at 314. In most cases, reluctance to carry out such orders resulted in a transfer to hardship posts and other harm to one’s career. The Nuremberg Tribunal’s High Command Case discussed the range of options available to German staff officers faced with an illegal order: they could issue orders countermanding the order, resign, or sabotage the order. Von Leeb, 11 Trials, supra note 55, at 511.

65 Michael, Manheim, The Weak King Dilemma in the Shakespearean History Play 134 (1973)Google Scholar.

66 Boswell-Stone, supra note 5, at 72.

67 Shakespeare’s treatment of this episode owes much to Holinshed and to The Troublesome Raigne of King John, an anonymous play written in 1591. 4 Sources of Shakespeare, supra note 4, at 4, 22. Holinshed’s account of the conversation between Hubert and Arthur and his story about Arthur’s death originates in a contemporary Essex chronicle of Coggeshall, entitled The English Chronicle of Radulph of Coggeshall . Powicke, F. M., Ways of Medieval Life and Thought 27 (1949)Google Scholar. See also 4 Sources of Shakespeare, supra, at 15, 55–60. Holinshed’s explanations for Arthur’s death are (1) that Arthur died of grief; (2) that he was drowned in attempting to escape from Rouen; or (3) that he was killed by his uncle. Powicke, supra, at 32, explains that the main authority for Arthur’s disappearance is the annals of Margam, a Cistercian abbey in South Wales. The story Powicke recounts, as described in the chronicle of Margam, suggests that John killed Arthur in a drunken fury. Id.

68 4 Sources of Shakespeare, supra note 4, at 108.

69 Id. at 110.

70 Id

71 Id

72 Id.

73 Id. at 111.

74 Id.

75 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, supra note 36, Art. 8.

76 See generally Yoram, Dinstein, The Defence of Obedience to Superior Orders in International Law (1965)Google Scholar.

77 Hartmuth, Horstkotte, The Role of Criminal Law in Dealing vrith East Germany’s Past: The Mauerschützen Cases , in Democracy, Market Economy, and the Law 213, 215 (Werner, F. Ebke & Detlev, Vagts eds., 1995)Google Scholar.

78 Id. at 216.

79 See, e.g., decision of Nov. 3, 1992 (Border Guards Prosecution Case), 100 ILR 366 (Fed. Sup. Ct.).

80 Horstkotte, supra note 77, at 221. For the decision, July 26, 1994, see 1994 Neue Juristische Wochenschrift 2703. I am grateful to Professors Andreas Lowenfeld and Detlev Vagts for the translation.

81 Prosecutor v. Erdemović, Case No. IT–96–22-T, Sentencing Judgment (Nov. 29, 1996). See also supra note 57.

82 Id., para. 80.

83 Id., paras. 53–54.

84 Id., para. 50. For the requirements regarding superior orders as a defense or as a ground for mitigation in U.S. practice, see U.S. Department of Defense, the Manual for Courts Martial, United States, Rules for Court Martial No. 916(b) (1984); U.S. Department Of The Army, Law of Land Warfare §509 (Field Manual 27–10, 1956).

85 Case No. IT–96–22-T, supra note 81, para. 91.

86 Id., para. 111.

87 Manheim, supra note 65, at 95.

88 Id. at 99.

89 Herbert, Morris, On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology 1–2 (1976)Google Scholar.

90 Id. at 16. See Ansgar Kelly, H., The Right to Remain Silent: Before and After Joan of Arc , 68 Speculum 992 (1993)Google Scholar.

91 Morris, supra note 89, at 16.

92 Boswell-Stone, supra note 5, at 267.

93 3 Sources of Shakespeare, supra note 4, at 111.

94 The historian Paul Murray Kendall presented King Edward as the architect of Clarence’s murder and offered no suggestion that could point to Richard as the culprit. Furthermore, he described Clarence as a dangerous competitor to Edward and as largely responsible for much of what would befall him in the near future: once the “Duke of Clarence had grown ripe with secret hopes and private visions,” he began to pose a threat to his brother, the king. Paul Murray Kendall, Richard The Third 122 (1965). After Clarence arranged for the hanging of his former wife’s servant, thus arrogating to himself authority he did not have, King Edward accused Clarence of “subverting the laws of the realm and presuming to take justice into his own hands,” id. at 125, and ordered him imprisoned in the Tower.

Unlike the chroniclers, who accused Richard of complicity in the imprisonment and murder of Clarence either indirectly or directly, Kendall described Richard as dismayed by Clarence’s fate and recounted how Richard in fact “pleaded with King Edward for George’s life.” Id. Jacobs similarly rejected Shakespeare’s imputation of responsibility to Richard for the death of Clarence, E. F. Jacob, The Fifteenth Century: 1399–1485 , in The Oxford History of England 608 (George, Clark ed., 1961)Google Scholar.

95 Kendall, supra note 94, at 126.

96 Id.

97 Levy, F. J., Tudor Historical Thought 72 (1967)Google Scholar.

98 Shakespeare seems to have drawn inspiration for his story from literary sources, including “George, Duke of Clarence,” in A Myrroure for Magistrates, supra note 60, at 301, and the anonymous poem, The True Tragedy of Richard III (c. 1594), in 3 Sources of Shakespeare, supra note 4, at 317. See also Satin, supra note 34, at 62–71. The former poem apportions the blame between Richard and King Edward, but places the primary responsibility for the actual murder on Richard. This poem may well have encouraged Shakespeare’s desire to depict Richard as the principal culprit. The poet, William Baldwin, discusses Edward’s order to imprison the Duke of Clarence in the Tower, and describes Richard’s wish to use the opportunity to remove Clarence, a competitor for the Crown, and plot his end. Thus, according to this source, while Edward may have condemned Clarence to death, Richard incited the king, plotted the murder, and actually committed the crime. “George, Duke of Clarence,” supra, at 304–05.

Richard’s responsibility is also highlighted in the prologue to The True Tragedy of Richard III, in which Truth describes Richard as the person who actually drowned Clarence “in a butt of wine.” Satin, supra, at 63. In Richard III, Clarence decries the lack of legal proceedings and declares his innocence (I.iv.176–87). Shakespeare knew from the chroniclers that Clarence had been tried and convicted by Parliament, but he must have chosen to follow the literary sources to support the historically inaccurate claim of the total absence of judicial process. Thus, Shakespeare may have been echoing poet William Baldwin, who, speaking as the Duke of Clarence, states, “Take me for one of this wrong punisht sect, / Imprisoned first, accused without cause, / And doen to death, no proces had by lawes.” “George, Duke of Clarence,” supra, at 301.

99 Kendall, supra note 94, at 398–402. See also Jacob, supra note 94, at 624; Boswell-Stone, supra note 5, at 387–94; and Satin, supra note 34, at 1.

100 Boswell-Stone, supra note 5, at 389. For Hall’s version of this episode, see 3 Sources of Shakespeare, supra note 4, at 277.

101 Boswell-Stone, supra note 5, at 389.

102 3 Sources of Shakespeare, supra note 4, at 278–79.

103 Hall, supra note 59, at 352.

104 Hall wrote:

Howbeit yf she coulde in no wise be intreated with her good wyll to delyuer hym, then thought he and such of the spiritualtie as wer present, that it were not in any wyse too bee attempted to take hym out againste her wyll, for it woulde be a thyng that should turne to the grudge of all men and high displeasure of God, yf the pryuilege of that place should be broken whiche had so many yeres bene kept, whiche bothe Kynges and Popes had graunted and confirmed, which ground was sanctifyed by Sainct Peter him selfe more then fyue hundreth yeres agone. . . . [A]nd therefore quod the Archebishop, God forbid that any manne shoulde for any yearthely enterprise breake the immunitie and libertie of that sacred sanctuary that hath bene the safegard of so many a good mans life . . . .

Id. Leaving aside canon law, at least in the common law Buckingham’s and Holinshed’s legal arguments may be serious. Although the privilege of sanctuary was one that belonged to a place rather than a person, it was available to felons, including traitors, and even minor malefactors and debtors. It is unclear, however, whether the common law recognized the privilege for persons who did not offend against the law and sought protection from other dangers. See]. Baker, H., The English Law of Sanctuary , 2 Ecclesiastical L.J. 8 (1990–92)Google Scholar; 2 The Reports of Sir John Spelman 335–39 (Selden Society Pub. No. 94, J. H. Baker ed. 1978). However, the historian Polydore Vergil, in De inventoribus rerum f. 55 (1528), expressed the view that a sanctuary also protected those who feared an attack. Id. at 340 & n.3. In a criticism of sanctuaries expressed in his History of King Richard III (c. 1513), Thomas More had Buckingham state that in unsettled times, a sanctuary could have given justifiable protection to political offenders. Id.

105 Satin, supra note 34, at 16.

106 In Hall, the Cardinal says:

But I trust quod he, we shall not nede it [to use force], but for any maner of nede I would we should not do it, I trust that she with reason shalbe contented and all thing in good maner obteined. And yf it hap that I brynge it not to passe, yet shall I further it to my best power, so that you all shall perceyue my good wyll, diligence, and indeauoure.

Hall, supra note 59, at 353.

107 Nonetheless, Shakespeare was certainly aware of Hall’s detailed account of the discussion between the Cardinal and the Queen. The Cardinal cajoles, promises, and repeats Buckingham’s legal sophistry, assuring the Queen that no harm will befall the prince, and threatens that, in the absence of her consent, the prince will be forcibly removed: “they recon no priuilege broken, although they fetch him out of sanctuarie, whiche yf you finally refuse too deliver hym.” Id. at 356. In response, the Queen pleads, invoking the prince’s poor health, her need to care for him, the jeopardy to which he will be exposed and her right, even in the absence of sanctuary privileges, to be the guardian of her son. Finally, once the exasperated Cardinal pledges the prince’s safety with his own body and soul, the Queen yields. However, this is compulsion, not consent. On the immunity of churches in medieval ordinances, see Meron, supra note 19, ch. 8.

Although Shakespeare’s tale ends here, the chroniclers’ story refers to the events following York’s removal from sanctuary. Richard III was also concerned about the danger the princesses posed to his monarchical claims. According to the Croyland Chronicle, the history of the Croyland Monastery, Richard learned that the king’s daughters were told to go abroad so that, “if any fatal mishap should befall the male children of the late king in the Tower, the kingdom might still, in consequence of the safety of daughters, some day fall again into the hands of the rightful heirs.” Charles, T. Wood, The Age of Chivalry 188 (1970)Google Scholar. Richard responded immediately, apparently with the “purpose of ending [the] relative freedom of action for those in sanctuary,” by appointing men to guard the church of Westminster, setting “a watch upon all the inlets and outlets of the monastery so that not one of the persons there shut up could go forth, and no one could enter, without his permission.” Id. at 189.

108 Manheim, supra note 65, at 134.

109 Id. at 4. See also David, M. White, Shakespeare and Psychological Warfare , 12 Pub. Opinion Q. 68 (1948)Google Scholar.

110 Lerner, supra note 15, at xxxix-xl.

111 Machiavelli, supra note 15, at 65.

112 Id. at 64.

113 Id.

114 Id. at 406–07 (ch. IV of The Discourses).

115 Meron, supra note 19, at 201–06.

116 Id. at 159–60.

117 Id. at 166–69. See also Gentili, supra note 24, at 212.

118 Geneva Convention (No. Ill) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 13, 6 UST 3316, 75 UNTS 135.

119 See Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Art. 60, reprinted in The Laws of Armed Conflicts 3 (Dietrich Schindler & Jiří Toman eds., 3d ed. 1988).

120 Theodor, Meron, Francis Lieber’s Code and Principles of Humanity , 36 Colum. J. Transnatl L. 269, 273 (1997)Google Scholar, and in Politics, Values and Functions: International Lawinthe 21st Century, Essays in Honor of professor Louis Henkin 249, 252–53 (Jonathan, I. Charney, Donald, K. Anton & Mary, Ellen O’Connell eds., 1997)Google Scholar.

121 Convention (No. IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

122 Gesta Henrici Quinti 92–93 (Frank, Taylor & John, S. Roskell eds., 1975) (1416–17)Google Scholar.