War crimes and genocide are as old as history itself. So are regulations and laws that protect individuals during time of war, whether they be combatants or civilians. The Chinese philosopher Sun Tzu wrote in the fifth century BCE that it was important to treat “captured soldiers well in order to nurture them [for our use]. This is referred to as ‘conquering the enemy and growing stronger.'” Yet several centuries later, Qin Shi Huangdi, China's first emperor, committed horrible atrocities during his military campaigns to unite China. Eric Yong-Joon Lee adds that it should be remembered that the Qin emperor also created that country's “first managed international legal order.” But, according to Robert Cryer, it was the West, not Asia, that created the world's first “international criminal law regime.” This “regime,” R. P. Anand argues, was, in many ways, a form of “Victor's Justice“ or “ruler's law,” since it was forced on Asia and Africa by the West in the nineteenth century.

While participating in Hitler's Holocaust against Jews and Roma, wartime Croatia's collaborationist government, the Ustaša (Insurgent), conducted its own genocide against the Serbs within its territories. As the title of Marco Rivelli's 1978 text, Le Génocide occulté, makes clear, this phenomenon remained largely unknown in the West until the 1990s. Of the principal external actors, post-war German attention focused on the Holocaust. Italy still resists fully confronting its less than pristine role in the Balkans, so that Rivelli's work, completed in 1978, was not published in Italy until 1999. The Vatican, meanwhile, has yet to release its documents on the subject.

The sheer enormity of Soviet losses at the hands of German forces during the Second World War staggers the mind. During the immediate post-war period, Stalin did not want the West to know just how badly the Soviet Union had been mauled or the fact that far more Soviet soldiers had died than German ones (up to three times as many); consequently, the Soviets clamed that the total number of dead was 7 million, while Western estimates were between 10 and 15 million Soviet dead. It was only during the Khrushchev era that the true scale of the disaster was revealed and the more accurate figure of 20 million dead was generally accepted. Of these, only half were soldiers. The rest were at least 10 million civilians, including 2 million who died as slave laborers in Nazi Germany. The death toll has more recently been put at 25, 27 and even 30 million, though I suspect the latter figures also take into consideration the decline in birth rates. In April 2009 Russian President Dmitrii Medvedev appointed yet another commission to give a final accounting of Soviet losses.

In Western historical consciousness, National Socialist mass murder has become permanently identified with the Jewish Holocaust, Adolf Hitler's maniacal project to annihilate European Jewry. From its earliest days, the Nazi Party sought to exclude Jews from German public life, and when the Nazis came to power in January 1933, their anti-Jewish animus became official policy. What followed was legal disemancipation of German Jews, physical attacks on their persons, ghettoization, deportation, and physical extermination in the East. The story of the Holocaust is well known and generally accepted. Yet two years before German Jewish policy swerved from persecution and harassment to genocide, the Nazis were already involved in state-organized killing of another disfavored minority. Unlike the destruction of European Jews, the murder of this group—the mentally disabled—occurred within the Reich's own borders. Launched with the signing of a “Hitler decree” in October 1939 (backdated to 1 September), the centrally organized program targeted so-called “incurable” patients, whose lives were to be ended by a doctor-administered “mercy death” (Gnadentod). The Nazis attached the term “euthanasia” to their program of destruction, bolstering their rationale for it with humanitarian arguments and cost-based justifications, the latter legitimizing euthanasia as a means to free up scarce resources for use by “valuable” Germans. Over time, the restrictive use of euthanasia just for incurable patients ended; thereafter, the Nazis extended the killing program to healthier patients, sick concentration camp inmates, Jewish patients, and a variety of “asocials” (juvenile delinquents, beggars, tramps, prostitutes). The technology of murder developed in the “euthanasia” program—carbon monoxide asphyxiation in gas chambers camouflaged as shower rooms—would become the model for the first death camps in Poland. Many of the “euthanasia” personnel were likewise transferred to the Polish extermination centers, where they applied the techniques of mass death—refined in murdering the disabled—to the murder of the European Jews.

After a two-year tug-of-war between the US, the UN, and Phnom Penh, the Cambodian government, supported by massive international intervention, brought some of those accused of committing Khmer Rouge atrocities to trial before an independent court. The atrocities, which verged on genocide, were perpetrated between 1975 and 1979. The plan was to create a special tribunal consisting of both indigenous and foreign judges to try the perpetrators. Newspapers from 2002 reported that the first indictment would be issued some time during that year. As we know today, this proved to be a rosily optimistic prediction.

The public international law doctrine of command responsibility, like many firmly accepted rules in law, is more clearly stated than consistently applied. Intended to establish a base level of order and responsibility for sustained violence endemic to the inherently ugly nature of war, even state militaries of fully mature Western democracies demonstrate difficulty appreciating its importance and applying its law.