¹ See, e.g., Green, , Superior Orders in National and International Law 15–242 (1976 Google Scholar) ; Dinstein, , The Defence of “Obedience to Superior Orders” in International Law 5–20 (1965 Google Scholar).

² Green, op. cit. supra note 1, at 247–62; Dinstein, , op. cit. supra note I , at 38–67 Google Scholar; Keijzer, , Military Obedience (1978 Google Scholar).

³ S. 32 (2), (3), italics added.

⁴ R.S.C. 1970–1 N4, as amended. S. 73, italics added.

⁵ S. 2, italics added.

⁶ Vol. I, Art. 19.015, italics added.

⁷ (1954) I C.M.A.R. 249, per Cameron, J. at 251.

⁸ See, e.g., U.S. v. Kinder (1954), 14 C.M.R. 742 (cited in Green, Essays on the Modern Law of War 69 (1985) : “so obviously and palpably unlawful as to admit of no reasonable doubt on the part of a man of ordinary sense and understanding … so palpably illegal on its face as to admit of no doubt of its unlawfulness to a man of ordinary sense and understanding. …” See also, decision of Israel District Military Court in Chief Military Prosecutor v. Melinki (the Kafr Qasem case) (1957, cited in appeal before Mil. Ct. of App., 2 Palestine Yearbook of International Law 70, 108 (1985), and with approval in District Judgment in A.G., Israel v. Eichmann (1961, 36 I.L.R. 5.256) : “The identifying mark of a ‘manifestly unlawful’ order must wave like a black flag above the order given, as a warning saying: ‘forbidden.’ It is not formal unlawfulness, hidden or half-hidden, not unlawfulness that is detectable only by legal experts, that is the important issue here, but an overt and salient violation of the law, a certain and obvious unlawfulness that stems from the order itself, the criminal character of the order itself or of the acts it demands to be committed, an unlawfulness that pierces and agitates the heart, if the eye be not blind nor the heart closed or corrupt. That is the degree of ‘manifest’ illegality required in order to annul the soldier’s duty to obey and render him criminally responsible for his actions.”

⁹ See Green, “Superior Orders and the Man in the Field,” in op. cit. supra note 8, at 43–72.

¹⁰ Ss. 11, 15, subject to the limitation in s. 1.

¹¹ [1980] 2 S.C.R., 370.

¹² R.S.C. 1970, App. III, guaranteeing the “right of the individual to equality before the law and the protection of the law” (s. 1 (b) ), and the “right … to a free and public hearing by an independent and impartial tribunal”(s. 2(f)).

¹³ “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

¹⁴ [1985] 1 S.C.R. 441, 472-73.

¹⁵ McCall v. McDowell (1867), 15 Fed. Cas. 1235, 1240-41.

¹⁶ Riggs v. State (1866), 91 Am. Dec. 272.

¹⁷ U.S. v. Carr (1872), 25 Fed. Cas. 306, italics added.

¹⁸ U.S. v. Kinder, supra note 8, at 776.

¹⁹ U.S. v. Keenan (1969), 39 C.M.R. 108.

²⁰ U.S. Army “Lesson Plan” on teaching “The Geneva Conventions of 1949 and Hague Convention IV of 1907,” Dept. of the Army ASubjScd 27-1 (Oct. 8, 1970).

²¹ Schindler, and Toman, , The Laws of Armed Conflicts 621 (1988 Google Scholar).

²² See Green, “The Role of Legal Advisers in the Armed Forces,” op. cit. supra note 8, at 73; Draper, , “Legal Advisers in Armed Forces,” 56 Int’l Red X Rev. 6 (1978 CrossRefGoogle Scholar).

²³ Cotamine, War in the Middle Ages 287 (Eng. tr. 1984).

²⁴ See the “estatutz, ordenances et custumes en l’ost,” promulgated by Richard II, 1385, c. Black Book of Admiralty, ed. Twiss, vol. 1, 1841, at 453–54.

²⁵ Cotamine, op. cit. supra note 23, at 290.

²⁶ See Schwarzenberger, , “The Law of Armed Conflict,” International Law, vol. 2, 1968 Google Scholar, ch. 39.

²⁷ (1660) 5 St. Tr. 1077, 1113, 1115.

²⁸ (1661), 84 Eng. Rep. 1060.

²⁹ (1900), 17 S.C. 561 (Cape of Good Hope), italics added.

³⁰ Schindler and Toman, op. cit. supra note 21, at 63.

³¹ International Law, Vol. II, “War and Neutrality,” s. 253 — italics in original. In 1909 the Permanent Court of Arbitration also considered an ordinary soldier complying with orders as exempt from liability, The Casablanca Deserters (France/Germany) 11 U.N. Rep. Int'l Arb. Awards 119, 129; see also Cadenhead case (G.B./U.S.) 1914, 6 ibid., 40.

³² “Reprisals is the term applied to such injurious or otherwise internationally illegal acts of a State against another as are exceptionally permitted for the purpose of compelling the latter to consent to satisfactory settlement of a difference created by its own international delinquency,” Oppenheim, op. cit., s. 33.

³³ Schindler and Toman, op. cit. supra note 21, at 877, italics in Oppenheim footnote.

³⁴ (1921) Cameron, , The Peleus Trial, 1948 Google Scholar, App. IX.

³⁵ 1914 ed., p. 302.

³⁶ American Rules of Land Warfare, Art. 366.

³⁷ Garner, , International Law and the World War, vol. 2, at 485 (1920 Google Scholar) : “It is an axiom, at least of English and American law, that the plea of superior order is no defence to an illegal act” — Garner emphasized that he wrote at the urging of Oppenheim, who approved of his text, vol. I, at vii, viii.

³⁸ S. 47 — the section is paraphrased in the decision of the Reichsgericht in the Dover Castle (1921), Cameron, App. X.

³⁹ Morgan, , The Great Assize 12–13 (1948 Google Scholar).

⁴⁰ Report, Mar. 19, 1919, 14 Am. J. Int’l L. 95, 117 (1920).

⁴¹ 13 ibid., 1919, Supp.

⁴² Op. cit. supra note 34, at 181–82.

⁴³ Vol. II, at 454, n. I.

⁴⁴ Pp. 453-55 — the paragraph is still numbered 253.

⁴⁵ His n. cites s. 443 of the British Manual and s. 366 of the US Rules of Warfare.

⁴⁶ His fn. 2, p. 454, states: “see, e.g., s. 253 of the previous editions of this volume” — he does not mention that the same statement appeared with his approval in the 5 th ed. prepared by himself.

⁴⁷ This was in fact the case re the sinking of the Dover Castle, see supra note 38.

⁴⁸ Amendment 34, Apr. 1944.

⁴⁹ Basic Field Manual, Rules of Land Warfare (para. 345), Change No. 1, Nov. 15, 1944 — the texts of the various versions of the British Manual and the U.S. Rules are to be found in UNWCC, The History of the United Nations War Crimes Commission and the Development of the Laws of War 281-82 (1948).

⁵⁰ See, e.g., In re List (Hostages Trial) (1948) 15 Ann. Dig. 632.

⁵¹ Ibid., 650-52.

⁵² The U.S. Mil. Trib. was sitting in the U.S. Occupied Zone of Germany and, in its proceedings, was bound by the legislation of the Allied Control Council. By Law No. 10, Official Gazette C.C.G., No. 3, Jan. 24, 1946, it was expressly provided : “The fact that the person acted pursuant to the order of his Government or a superior does not free him from responsibility for a crime, but may be considered mitigation.”

⁵³ Op. cit. supra note 37, at 12, vol. I, (1920).

⁵⁴ Cameron, op. cit. supra note 34, at 85.

⁵⁵ See, e.g., Green, , “War Law and the Medical Profession,” op. cit. supra note 8, at 103–34 Google Scholar.

⁵⁶ Cameron, op. cit. supra note 34, at 130.

⁵⁷ The Times (London), Apr. 25, 1950.

⁵⁸ Cameron, op. cit. supra note 34, at 129.

⁵⁹ See, however, U.S. “Lesson Plan,” supra note 20, and Protocol I, 1977, Art. 82, supra notes 21, 22.

⁶⁰ Schindler and Toman, op. cit. supra note 21, at 911.

⁶¹ This Tribunal was established by a Proclamation issued by Gen. MacArthur, Jan. 19, 1946: see Keenan, and Brown, , Crimes Against International Law 184 (1950 Google Scholar).

⁶² History of UNWCC, op. cit. supra note 49, at 283–86.

⁶³ War Crimes Regulations (Canada), P.C. 5831, Aug. 30, 1945.

⁶⁴ 10 Geo. VI c. 73; see Green, “Canadian Law and the Punishment of War Crimes,” op. cit. supra note 8, at 253–60.

⁶⁵ Royal Warrant, A.O. 81/1945.

⁶⁶ (1946) H.M.S.O., Cmd. 6964, pp. 42, 83, 92, 118; 41 Am. J. Int’l L. 221, 271–72, 283, 316 (1947), italics added.

⁶⁷ See Green, op. cit supra note 1.

⁶⁸ See, however, Lewy, “Superior Orders, Nuclear Warfare and the Dictates of Conscience: The Dilemma of Military Obedience in the Atomic Age,” 55 Pol. Sci. Rev. 3, 8 (1961) : “International law is not in a position to protect individuals, wherever they may be, against a domestic law which is illegal from the point of view of international law. According to general legal principles, it cannot therefore expect the individuals to expose themselves to such a risk. For the individual, always and everywhere, national law precedes international law. He has to obey the national law even where it compels him to violate international law.” By doing so, however, he runs the risk of facing trial for war crimes.

⁶⁹ 1948, sub. non. In re Hirota, 15 Ann. Dig. 356, 363.

⁷⁰ Res. 95(1), Schindler and Toman, op. cit. supra note 21, at 921.

⁷¹ Res. 177(H).

⁷² Schindler and Toman, op. cit. supra note 21, 923, italics added.

⁷³ Part III, The Law of War on Land, 1958, para. 627.

⁷⁴ Dept. of the Army, The Law of Land Warfare, FM27–10, 1956, para. 509.

⁷⁵ Para. 628: “Thus if A takes the hand of Β in which is a weapon, and therewith kills G, A is guilty (of murder), but Β is excused, see 4 Blackstone's Commentaries 24.”

⁷⁶ Levie, , Protection of War Victims: Supplement 37–38 (1985 Google Scholar).

⁷⁷ Ibid., 12, 33-34.

⁷⁸ Ibid., 40-41.

⁷⁹ S.C. 1987,c.37.

⁸⁰ See Green, , “Canadian Law, War Crimes and Crimes Against Humanity,” 59 Brit. Y.B. Int'l L. 247, 264 (1988 Google Scholar).

⁸¹ See supra note 31.

⁸² In Aug. 1983 a court in Arnhem, Netherlands, sentenced the captain of the Dutch ship, Emmely, to prison for ordering a stowaway to be thrown overboard. The first mate who carried out the order was also jailed. The Times (London) Aug. 23, 1983.

⁸³ See supra note 30.

⁸⁴ See, e.g., British Manual 1914, para. 443; the captor “may punish the offender or commanders responsible for such orders if they fall into his hands… 
”; U.S. Rules, para. 347, “The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.” Later editions preserve this liability, which was reinforced by the judgments of war crimes tribunals after 1945.

⁸⁵ See Schwarzenberger, , International Law and Totalitarian Lawlessness 66 (1943 Google Scholar). The statement in the text remains correct despite United States action against General Noriega of Panama in 1989–90.

⁸⁶ See Dinstein, supra note i, at 57-67.

⁸⁷ UNWCC Hist., op. cit. supra note 49, at 242 ; Hosack, , The Law of Nations 52–53 (1882 Google Scholar), using the name Conradin, gives a somewhat different account. See, also, re Jefferson Davis, ex-President of the Confederacy, Garner op. cit. supra note 37, Vol. II, at 495–96.

⁸⁸ UNWCC Hist., op. cit. supra note 49, at 242.

⁸⁹ Loc. cit. supra note 40.

⁹⁰ Italics added.

⁹¹ UNWCC Hist., op. cit. supra note 49, at 240; italics added.

⁹² See Schwarzenberger, , Power Politics, ch. 14 (1964 Google Scholar).

⁹³ Garner, op. cit. supra note 37, vol. II, at 492, n. 1.

⁹⁴ 37 Am. J. Infi L. 84 (1943).

⁹⁵ HMSO, Punishment for War Crimes (2) : Collective Notes Presented to the Governments of G.B., the U.S.S.R. and the U.S.A., 1943, per Ld. Simon, Ld. Ch., at 14; Foreign Minister Molotov, at 6; President Roosevelt, at 10.

⁹⁶ 9 U.S. Dept. of State Bull., 310–11.

⁹⁷ Loc. cit. supra note 60.

⁹⁸ Brackman, , The Other Nuremberg 207 (1987).Google Scholar

⁹⁹ 15 Ann. Dig. 356, at 372.

¹⁰⁰ Loc. cit. supra note 72, Principle III.

¹⁰¹ 1945, 4 UNWCC, Law Reports of Trials of War Criminals 1, at 34–35.

¹⁰² Japan signed but never ratified the 1929 Convention; however, “she did agree, early in her involvement in W.W. II, that she would apply it mutatis mutandis,” Levie, , Documents on Prisoners of War 231 (Naval War College, International Law Studies, vol. 60) (1979 Google Scholar).

¹⁰³ (1946) 372 U.S. I.

¹⁰⁴ See, e.g., Parks, , “Command Responsibility for War Crimes,” 62 Mil. L. Rev. I, 26–31 (1973 Google Scholar).

¹⁰⁵ Giving evidence before the U.S. Senate Armed Services Committee, Rear-Admiral Fogarty stated that three minutes before ordering his missiles to be fired, Rogers was informed by one of his officers that the aircraft was “possible commair” (commercial aircraft). Rogers acknowledged this with a “wave of his hand,” but otherwise ignored it and gave the order to fire, The Globe and Mail (Toronto), Sept. 9, 1988.

¹⁰⁶ The extracts quoted here are taken from the unpublished transcript, at 839–45. The Report at 1945, 4 UNWCC, Law Reports of Trials of War Criminals, at 97, is not very helpful; italics added.

¹⁰⁷ See supra note 63 ; italics added.

¹⁰⁸ Manual, Part III, The Law of War on Land, 1958, para. 631 ; U.S., Army Field Manual 27–10, 1956, para. 501.

¹⁰⁹ E.g., Rauer (1946), 4 UNWCC, Law Rep. 113; Baba Masao (1947) 11 ibid., 56; von Leeb (German High Command) (1948) 12 ibid., 1; von Manstein (1949) 16 Ann. Dig. 509; see also, 15 UNWCC Law Rep., 63–78.

¹¹⁰ U.K., para. 632; U.S., para. 510; the latter only refers to “government officials.”

¹¹¹ Loc. cit. supra note 21 ; italics added. In fact, this is consistent with the new restrictive approach regarding the doctrine of state immunity in municipal law.

¹¹² See Levie, , Protection of War Victims, vol. IV, at 313–21 (1981 Google Scholar).

¹¹³ Final Report of the Kahan Commission (1983) 22 Int’l Leg. Mat. 473, 496, 502–3 (italics added) ; a fuller analysis of the Report will be found in Green, “War Grimes, Extradition and Command Responsibility,” op. cit. supra note 8, at 215, 228–37. See also Burnett, “Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra,” 107 Mil. Law Rev. 71, 148–86 (1985).

¹¹⁴ The Globe and Mail (Toronto), Feb. 18, 1983.

¹¹⁵ See also, D’Amato, “Superior Orders vs. Command Responsibility” and Levie, , “Some Comments on Professor D’Amato’s ‘Paradox’,” 80 Am. J. Int’l L. 604–11 (1986 CrossRefGoogle Scholar).