¹ George Washington, Letter of Instructions to the Captains of the Virginia Regiments, 29.July 1759.

² Parkerv. Levy, 417 US 733 (1974).

³ Niccolo Machiavelli, The Prince (1532), ch. 14.

⁴ R. v. Généreux, [1992] 1 S.C.R. 259, at 293.

⁵ Sawyer, Ralph D., The Seven Military Classics of Ancient China (1993) at 375.Google Scholar

⁶ Ibid, at 131.

⁷ “The Tao causes the people to be fully in accord with the ruler: they will die with him; they will live with him and not fear danger.” Ibid .

⁸ Ibid, at 157.

⁹ Ibid, at 214.

¹⁰ Ibid. at 359.

¹¹ See Armour, W. S., Customs and Warfare in Ancient India, Transactions of the Grotius Society, vol. 8 (1922) at 71, 75–7, and 81. Google Scholar

¹² Muttaquii, Al, Book of KanzuTumman, vol. 4 (1949) at 472.Google Scholar

¹³ Ghunaimii, Mohammad Talaat Al, The Muslim Conception of International Law and the Western Approach (1968) at 140.Google Scholar

¹⁴ Khadduri, Majid, translated, The Islamic Law of Nations (Shaybanr’s Siyar) (1966), sections 29–32, 47, 81, 110–1.Google Scholar

¹⁵ Ibid., sections 1 and 29.

¹⁶ Ibid., sections 128–31.

¹⁷ See, for example, Beiiii, Pierino, De Re Militari et Bello Tractatus (1563)Google Scholar (English translation by Herbert C. Nutting, 1936), Part VIII, ch. I “On the Crimes of Soldiers and Their Punishment,” 219–46.

¹⁸ Ayala, Balthazar, De Jure et Officiis Bellicis (1582) (English translation by John PawleyBate, 1912), Book III, ch. I, 171–6.Google Scholar

¹⁹ Ibid, at 175. See, for a modern example of this, the discussion later in this text concerning the Canadian Airborne Regiment and its record in Somalia.

²⁰ Winthrop, William, Military Law and Precedents (1886) at 903.Google Scholar

²¹ Prestwich, Michael, Armies and Warfare in the Middle Ages — The English Experience (1996) at 179–80.Google Scholar

²² Winthrop, supra note 20 at 904.

²³ Ibid, at 907.

²⁴ Ibid, at 919.

²⁵ Ibid. at 920.

²⁶ William Shakespeare, Henry V, Act III, Scene V.

²⁷ A small piece of plate used during Mass. This is apparently based on a report by Henry’s chaplain, Prestwich, supra note 21 at 180.

²⁸ See, for example, William Shakespeare, Henry TV, Part I, Act I, Scene II; Act II, Scenes II, IV.

²⁹ Prestwich, supra note 21 at 180–1.

³⁰ See, for example, Baxter, Richard R., “The First Modern Codification of the Law of War” (June 1962) 1(3) Int’l Rev. Red Cross 1.Google Scholar

³¹ General Orders no. 100 by President Lincoln, 34 April 1863; Dietrich Schindler and Jiri Toman, On the Laws of Armed Conflicts (2004) at 3.

³² International Declaration Concerning the Laws and Customs of War, quoted in Schindler and Toman, supra note 31 at 21.

³³ Oxford Manual of the Laws of War on Land, quoted in Schindler and Toman, supra note 31 at 29.

³⁴ Oxford Manual of the Laws of War on Land, supranote 33 at Article 2, 2(2).

³⁵ Convention with Respect to the Laws and Customs of War on Land and Convention IV, both are reprinted in Schindler and Toman, supra note 31 at 55. The two instruments are reproduced side by side for easy reference.

³⁶ Geneva Conventions of 1949, 12 August 1949, 1125 U.N.T.S. 3, reprinted in Schindler and Toman, supra note 31 at 459–689.

³⁷ Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection ofVictims of International Armed Conflicts, 8June 1977 and Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, both reprinted in Schindler and Toman, supra note 31 at 711–84.

³⁸ This last paragraph is known as the Martens Clause and is still regarded as a fundamental principle of the law of armed conflict. See, for example, Advisory Opinion of International Court of Justice on Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, 226, 257, paras. 78–9.

³⁹ Convention IV, supra note 35 at Article 3.

⁴⁰ See, however, US Department of the Army, “Lesson Plan” on Teaching the Geneva Conventions of 1949 and Hague Convention no. IV of 1907, AsubjScd 27–1 (8 October 1970).

⁴¹ Llandovery Castel, (1921) 2 Ann. Dig. 436; reprinted in Cameron, John, The Peleus Trial (1948), appendix IX, 180–82.Google Scholar

⁴² German High Command Trial (1948) 15 UNWCC, Law Reports of Trials of War Criminals, 1949, 1.73–4.

⁴³ Ibid, at 75–6.

⁴⁴ Chief Military Prosecutor v. Melinke, 1958, reprinted in (1985) 2 Palestine Y.B. Int’l Law 69, 108.

⁴⁵ See, for example, the case of Captain Levy who opposed the war in Vietnam and refused to teach medical corpsmen attached to US Special Forces, contending that they would commit war crimes, rendering him an accomplice, Levy v. Pesor, 37 C.M.R. 399 (1967); D’Amato, Anthony et al., “War Crimes and Vietnam: The ’Nuremberg Defense’ and the Military service Resister” (1969) 57 Cal. Law Rev. 1055; and Levy v. Parker 396 U.S. 1204 (1969).CrossRefGoogle Scholar

⁴⁶ See refusal by Israeli Air Force personnel to carry out air strikes in civilian Palestinian areas, Farrell, , “‘Refusenik’ Pilots Cause Shockwaves in Israel,” The Times (London), 26 September 2003.Google Scholar

⁴⁷ Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1929, reprinted in Schindler and Toman, supra note 31 at 409.

⁴⁸ Convention Relative to the Treatment of Prisoners of War, 1929, reprinted in ibid, at 421.

⁴⁹ Trial of General Tomoyuki Yamashita (1945) U.N.W.C.C. Law Reports of Trials of War Criminals, vol. 4, .1.

⁵⁰ Ibid, at 27.

⁵¹ Ibid. at 34–5.

⁵² Ibid, at 41 and 43.

⁵³ Ic/AO (Abw.III), 24 September 1941; Klee, Ernst, Dressen, Willi, and Riess, Volker, The Good Old Days: The Holocaust as Seen by Its Perpetrators and Bystanders (1988) at 116.Google Scholar

⁵⁴ Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949; Convention (II) for the Amelio-ration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949; Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949; and Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, all are reprinted in Schindler and Toman, supra note 31 at 459, 485, 507, 575, resp.

⁵⁵ Geneva Convention I, supra note 54 at Article 49; Geneva Convention II, supra note 54 at Article 50; Geneva Convention III, supra note 54 at Art. 129; and Geneva Convention IV, supra note 54 at Article 146.

⁵⁶ Protocol I Additional, reprinted in Schindler and Toman, supra note 31 at 711.

⁵⁷ Protocol II Additional, reprinted in ibid, at 775.

⁵⁸ Statute of the International Criminal Tribunal for the Former Yugoslavia, I.L.M. 32 (1993), 1192; Schindler and Toman, supra note 31 at 1285.

⁵⁹ See, for example, Green, Leslie C., “Superior Orders and Command Responsibility: The Fifteenth Waldemar Soif Lecture in International Law” (March 2003) 175 Mil. Law. Rev. 286.Google Scholar

⁶⁰ It is nowhere made clear how a commander is to “know a subordinate is preparing to commit” an offence. In the English common law, there is a statement relevant to this “only God and the devil know the mind of man"!

⁶¹ The Prosecutor v. Tihomir Blaskic, No. IT-95-4-T, 3 March 2000 (Trial Chamber Judgment).

⁶² Ibid, at paras. 301, 302, 444, 446, 467–8.

⁶³ Ibid, at paras. 488–95.

⁶⁴ Ibid, at paras. 733–4.

⁶⁵ Ibid, at paras. 780 and 792.

⁶⁶ Prosecutor v. Krstic IT-98-33-T, 2 August 2001 (Trial Chamber).

⁶⁷ Ibid, at paras. 301.

⁶⁸ Ibid, at paras. 420–3.

⁶⁹ Ibid, at paras. 416–17.

⁷⁰ See, for example, ibid, at paras. 434, 462–5, and 470–7.

⁷¹ Ibid, at paras. 600 et seq.

⁷² Ibid, at para. 2 — quoted at para. 649.

⁷³ See David, Saul, Mutiny at Salerno (1995).Google Scholar

⁷⁴ Clayton, , “Search for the Truth Hindered by British Rape Claim Forgery,” The Times (London) (27 September 2003) at 22–3.Google Scholar

⁷⁵ See English, John A., Lament for an Army — The Decline of Canadian Military Professionalism (1998) at 2–5 Google Scholar; Government of Canada, Dishonoured Legacy — 7¾« lessons of the Somalia Affair: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (1997); Desbarats, Peter, Somalia Cover-up — A Commissioner’s Journal (1997).Google Scholar

⁷⁶ See accompanying text to notes 78–85.

⁷⁷ Dishonoured legacy, supra note 75, vol. 1, 23–4.

⁷⁸ See definition of “manifest unlawfulness” in Chief Military Prosecutor v. Melinhe, supra note 44.

⁷⁹ On joining the British Army in 1941, the writer was told that all he needed to know about the law of war was that if taken prisoner he was only obliged to give his name, rank, and number, and that he was not permitted to ill-treat or kill prisoners of war.

⁸⁰ Webster, Philip and Watson, Roland, “Red Cross Warned of Abuse Again and Again,” The Times (London) (11 May 2004)Google Scholar. See generally for the US position Greenberg, K. J. and Dratel, J. L., The Torture Papers (2005)Google Scholar. A number of those accused were found guilty and sentenced to lengthy prison terms.

⁸¹ One photograph showed a naked Muslim prisoner with a leash around his neck being dragged across the floor of his prison by a female American military guard.

⁸² Thus, one person who had been released reported that he and his comrades had been made to strip naked and then ordered to masturbate in the presence of female guards. Those released stated that they had been fed pork and been made to praise Jesus.

⁸³ See report prepared by US Major General Antonio M. Taguba into alleged abuse of prisoners by members of the 800th Military Police Brigade at the Abu Ghraib Prison in Baghdad, text available at <http./www.agonist.org/annex/taguba.htm>

⁸⁴ See, for example, Green, supra note 59.

⁸⁵ Reid, Tim, “Repeated Warnings on Abuse Began Fourteen Months Ago,” The Times (London) (11 May 2004).Google Scholar

⁸⁶ Drapeau, Michel, “When One Is Tortured, Many Are Wounded,” Globe and Mail (Toronto) (6 May 2004) at A17.Google Scholar

⁸⁷ Personal knowledge based on the writer’s military service in India during the Second World War. See Green, Leslie C., Essays on the Modern Law of War (1999), ch. XI, “The Azad Hind Fauj (The Indian National Army)”Google Scholar

⁸⁸ See text accompanying note 53 in this text.

⁸⁹ Ayala, supra note 18.

⁹⁰ Ibid, at Bk. III, ch. I, paras. 2, 4 (English translation at 171 and 173).