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Shakespeare’s Henry the Fifth and the Law of War

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Extract

William Shakespeare wrote during the Elizabethan Renaissance, a period of revived and intense interest in history. The Life of Henry the Fifth, written in 1599, one of Shakespeare’s histories, is a patriotic, epic portrayal of a phase in the bloody Hundred Years’ War (1337-1453) between England and France. It describes a medieval campaign led by a chivalrous and virtuous king, who could perhaps do wrong but not a great deal of wrong, and in which the few acting in a just cause defeat the many. In this play, Shakespeare relives past glories.

Type
Research Article
Information
American Journal of International Law , Volume 86 , Issue 1 , January 1992 , pp. 1 - 45
Copyright
Copyright © American Society of International Law 1992

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References

1 L. Campbell, Shakespeare’s “Histories”: Mirrors of Elizabethan Policy 18–20 (1947).

2 The Complete Works of Shakespeare 835 (G. Kittredge ed. 1971) [hereinafter Kittredge]. This essay will cite Henry V with annotations from the Yale Shakespeare (R. Dorius ed. 1955).

3 Hosley, Introduction to R. Holinshed: An Edition of Holinshed’s Chronicles, at xvii (R. Hosley ed. 1968) (2d ed. 1587) [hereinafter Hosley].

More than any other source, the second edition of Holinshed’s Chronicles guided and inspired Shakespeare. L. Campbell, supra note 1, at 72. This edition will therefore be referred to in this essay. R. Holinshed, Holinshed’s Chronicles (Clarendon Press, eds. R. Wallace & A. Hansen, 1923) (2d ed. 1587), reprinted by Greenwood Press (1978). Holinshed’s work, however, should not be regarded as the effort of a single historian. It was rather a “group project [of which in 1573] Holinshed became … the co-ordinator.” L. Campbell, supra, at 72.

4 Richard Grafton posthumously published Hall’s Chronicle in 1548. L. Campbell, supra note 1, at 67. The 1809 edition, which collates the editions of 1548 and 1550, is the version I shall cite. Hall’s Chronicle; Containing The History of England, During the Reign of Henry the Fourth, and the Succeeding Monarchs, to the End of the Reign of Henry the Eighth (1809), reprinted by AMS Press (1965) [hereinafter E. Hall]. The original title (1548) was “The Union of the Two Noble and Illustre Famelies of Lancastre & Yorke.”

The playwright’s close attention to these chroniclers gives his play a solid historical basis, but it also means that Shakespeare probably did not know about some of the events they did not mention. Consequently, at times, events of great dramatic potential were overlooked; for example, the real Henry’s challenge to the Dauphin, after the conquest of Harfleur, to decide the conflict by single combat (a similar opportunity, the trial by combat between Mowbray and Bolingbroke in Richard II, act 1, scene 3, was provided by Holinshed’s account of that monarch’s reign).

5 For a comprehensive discussion of the sources Shakespeare used in writing Henry V, see 4 Narrative and Dramatic Sources of Shakespeare 347–75 (G. Bullough ed. 1962). Shakespeare may have been somewhat influenced by an anonymous play, The Famous Victories of Henry the Fifth. Id. at 348, 299.

Shakespeare’s histories actually “reproduc[e] thousands upon thousands of [Holinshed’s] words.” Hosley, supra note 3, at xviii. Richard Posner observes that the notion of plagiarism in the Renaissance was limited: “the imitator was free to borrow as long as he added to what he borrowed.” R. Posner, Law and Literature 346 (1988); see also Meron, Common Rights of Mankind in Gentili, Grotius and Suarez, 85 AJIL 110, 112 n.18 (1991). Plagiarism was also common among medieval writers. The important author and compiler of the laws of war and customs of chivalry, Christine de Pisan, vigorously defended liberal use of others’ writings. C. de Pisan, The Book of Fayttes of Armes and of Chyvalrye 190 (W. Caxton trans. 1489, A. Byles ed. 1932) (written 1408–09).

Both Holinshed and Hall were writing “to show the significance of the facts and to establish by them general moral and more especially general political laws.” L. Campbell, supra note 1, at 75. As a result, Holinshed’s account emphasizes the morals of the Tudor era (id. at 74) rather than those of the Middle Ages, and Hall’s work has even been described as a work of propaganda (id. at 68, citing W. Gordon Zeeveld). Holinshed and Hall wrote some 100 years after the real events, describing them often in the light of sixteenth-century attitudes and assumptions that were not always quite those of Henry’s own time.

6 On the nature of the medieval law of war, see Haggenmacher, La Place de Francisco de Vitoria parmi lesfondateurs du Droit International, in Actualité de la pensée juridique de Francisco de Vltoria 27, 77–80 (1988); P. Haggenmacher, Grotius et la doctrine de la guerre juste 626 (1983).

7 M. Keen, The Laws of War in the Late Middle Ages 17 (1965).

8 Id. at 133. Haggenmacher, Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture, in Hugo Grotius and International Relations 133, 159 (H. Bull, B. Kingsbury & A. Roberts eds. 1990).

9 M. Keen, supra note 7, at 19. Keen points out that a peasant could not claim rights to ransom in an enemy prisoner under the law of arms, because that law did not apply to him. Id.

10 Id. at 20. Regarding the Ordinances of War attributed to Henry V, see infra note 89. Regarding courts of chivalry, see M. Keen, supra note 7, at 23–59; G. Squibb, The High Court of Chivalry 1–28 (1959); P.-C. Timbal, La Guerre de cent ans vue à Travers les Registres du Parlement (1337–69); C. Allmand & C. Armstrong, English Suits Before the Parlement of Paris 1420–1436 (1982); Rogers, Hoton v. Shakell: A Ransom Case in the Court of Chivalry, 1390–5, 6 Nottingham Medieval Studs. 74 (L. Thorpe ed. 1962). For an illustration of a contested case of subversio armorum, see P.-C. Timbal, supra, at 307–13.

11 G. Keeton, Shakespeare’s Legal And Political Background 82 (1967).

12 Because of the dates when the works of Gentili and Suarez were completed, finding much of an echo of their work in either Holinshed or Hall seems nearly impossible. That is not necessarily true of Vitoria, but his special interest in the law concerning colonization and wars with “barbarians” was one the English were not yet encountering to a marked degree.

13 G. Keeton, supra note 11, at 80. See generally Meron, supra note 5. Gentili, an Italian Protestant, took refuge in England and in 1587 became the Regius Professor of Civil Law in Oxford (the Regius Chair was first established in 1546). Gentili’s Oxford lectures appeared in book form in 1588 under the title Prima commentatio de jure belli and were republished, in considerably expanded form, in 1598 as De jure belli libri tres.

14 Suárez’s De legibus, ac deo legislatore (Treatise on Law and God the Legislator) was published in 1612. The law of war was the subject of De triplici virtute theologica, jide, spe, et charitate (The Three Theological Virtues, Faith, Hope and Charity), published posthumously in 1621.

15 The principal work on Grotius is P. Haggenmacher, supra note 6.

16 Haggenmacher, supra note 8, at 157.

17 A. Nussbaum, A Concise History of the law of Nations 69 (1954).

18 G. Keeton, Shakespeare and His Legal Problems 59 (1930). Consider, e.g., the title of Balthazar Ayala’s work, “Three Books on the Law of War and on the Duties Connected with War and on Military Discipline” (1582).

19 Shakespeare tends to refer to the law of arms, disciplines of war, etc. In Henry V, Captain Fluellen regards the law of war sometimes as a purely military discipline and sometimes as normative. His plea for silence in the proximity of the enemy (“I warrant you, that there is no tiddle-taddle nor pibble-pabble in Pompey’s camp”) relies on “the true and aunchient prerogatifes and laws of the wars” as a military discipline (4, 1, 67–71). But the law of arms is invoked by Fluellen in the strictly normative sense in his famous condemnation of the French attack on the English encampment (see section VII infra). Shakespeare also refers to the normative significance of the laws of war in Henry VIII: “Nay ladies, fear not./By all the laws of war y’are privileg’d” (1, 4, 51–52). Kittredge, supra note 2.

20 White writes:

The code of laws known as the salic law is a collection of the popular laws of the Salic or Salian Franks, committed to writing in barbarous Latin, in the 5’ century. Several texts of this code are in existence, but because of the dark ages in which it had its origin, more or less mystery surrounds it. The code relates principally to the definition and punishment of crimes, but there is a chapter … relating to the succession of salic lands, which was probably inserted in the law, at a later date. Salic lands, or terra salica, came to mean inherited land as distinguished from property otherwise acquired, but even in the 15’ century … there was but little known as to the origin or exact meaning of this law. It was by a very doubtful construction that the salic law in the 14’ century was held to exclude the succession of females to the throne of France, but on the accession of Phillip the Long, it was given this interpretation, and the fact that Edward III rested his claim to the throne on female succession no doubt led the French to place this meaning on the law … .

E. White, Commentaries on the law in Shakespeare 283–84 (1913) (footnotes omitted). On Salic law and just war, see also J. O’Malley, Justice in Shakespeare: Three English Kings in the Light of Thomistic Thought 42–45 (1964); G. Keeton, supra note 18, at 64.

21 There is no bar

To make against your highness’ claim to France

But this which they produce from Pharamond:

In terram Salicam mulieres ne succedant—

‘No woman shall succeed in Salic land.’

Which Salic land the French unjustly gloze

To be the realm of France, and Pharamond

The founder of this law and female bar.

Yet their own authors faithfully affirm

That the land Salic is in Germany,

Between the floods of Sala and of Elbe ….

Then doth it well appear the Salic law

Was not devised for the realm of France,

Nor did the French possess the Salic land

Until four hundred one and twenty years

After defunction of King Pharamond,

Idly suppos’d the founder of this law ….

So that, as clear as is the summer’s sun,

King Pepin’s title and Hugh Capet’s claim,

King Lewis his satisfaction, all appear

To hold in right and title of the female.

So do the kings of France unto this day,

Howbeit they would hold up this Salic law

To bar your highness claiming from the female … .

King. May I with right and conscience make this claim?

Canterbury. The sin upon my head, dread sovereign!

For in the Book of Numbers is it writ:

When the man dies, let the inheritance

Descend unto the daughter.

[1, 2, 35–100]

22 See P. Saccio, Shakespeare’s English Kings 75–77, 79 (1977). It is not clear that, in the period from Hugh Capet to Philip the Tall, anyone thought the Salic law was relevant to the French royal succession, or knew of its implications. P. S. Lewis observes that while the question of succession was complicated by the English claim to the throne of France, “[t]he exclusion of women derived, not from the Salic Law (which was first invoked in its aid in the reign of Jean II [1350–1364]), but from custom … .” P. Lewis, Later Medieval France 94–95 (1968). C. Wood, Joan of Arc and Richard III, at 12–14 (1988), explains the exclusion of women from rights of succession in France by reference to the adulteries of the daughters of Philip the Fair, which were discovered in 1314. He emphasizes that doubts about legitimacy played an important role in changing the anticipated royal succession and the accession of Philip V, and he concludes that, “[a]lthough these theories were not to reach full flower until Charles V—or even Charles VII—France was well on its way to inventing the Salic law.” Id. at 26.

First invoked and applied in 1317, as a categorical but unexplained customary rule, to the Valois succession, the Salic law was later “rationalized” by theological and philosophical arguments, in which antifeminism and nationalism played an important role, and eventually matured into a constitutional principle. The Salic law was first mentioned in terms in 1358 by Richard Lescot and first invoked against the English claims by Jean de Montreuil between 1408 and 1413. Contamine, “Le Royaume de France ne Peut Tomber en Fille”: Fondement, Formulation et Implication d’une Théorie Politique à la Fin du Moyen Age, 13 Perspectives Médiévales 67 (1987). The ancient Frankish legend of the Salic law, which resembles Hall’s-Holinshed’s-Shakespeare’s version, first appeared in an anonymous work in 1464 under the title La Loy salicque, premiere loy desfrancois. Potter, The Development and Significance of the Salic Law of the French, 52 Eng. Hist. Rev. 235, 249–51 (1937). On the different view in England of legitimacy and succession, see C. Wood, supra, at 14–18.

23 Numbers 27:8.

24 See generally G. Keeton, supra note 11, at 78.

25 R. Holinshed, supra note 3, at 9–11. See also E. Hall, supra note 4, at 49–52. Hall clearly set out the temporal element: Pharamond, the supposed author of the Salic law, could not have created it for a land he neither possessed nor knew of at the time it was issued. The biblical argument, by invoking God’s authority; was intended to put to rest any doubts that may have survived the secular reasoning Id. at 50–51.

26 Henry Chichele, Archbishop of Canterbury at the time of Agincourt, is perhaps best remembered by international lawyers for the (Oxford) Chichele Chair of Public International Law and for having cofounded in 1438 with Henry VI the All Souls College (the College of All Souls of the Faithful Departed) at Oxford, in memory of those fallen in the wars in France, of which Henry V’s campaign was but one segment. See J. Simmons, All Souls College: A Concise Account 1 (1988); J. Simmons, All Souls College, the Codrington Library and the Law 1 (1986). Thus, the person to whom Hall (followed by Holinshed) attributed the justification for starting the campaign later founded the memorial to the souls of those who died in it. It is doubtful, however, whether this attribution was appropriate. P. Saccio, supra note 22, at 79, asserts that “Archbishop Chichele almost certainly never made the speech on the Salic law that is assigned to him.” The anonymous early sixteenth-century work, The First English Life of King Henry the Fifth 24–25 (C. Kingsford ed. 1911)(1513) does not mention Canterbury’s participation in the deliberations of the King’s Council, and refers to him as having delivered the King’s answer to the French ambassadors. It was Henry’s Chancellor, Bishop Beaufort, who appears to have had a leading role in the discussions in Henry’s court and with the envoys of France. See also 1 J. Wylie, The Reign of Henry the Fifth 491 (1914); E. Jacob, Henry V and the Invasion of France 73 (1947) [hereinafter Henry V]; 3 W. Stubbs, A Constitutional History of England 89–90 (1880); 1 E. Jacob, The Register of Henry Chichele, at xxxiv–xxxv (1943); C. Kingsford, Henry V, at 109–10 (1901). The critical role of Beaufort in advocating resort to arms to uphold Henry’s just cause is made clear by G. Harriss, Cardinal Beaufort 71–73, 84–86 (1988).

In his “Aphotegms New and Old,” written about a quarter of a century after Henry V, Francis Bacon demonstrated England’s skepticism regarding the very existence of the Salic law. Francis Lo. Verulam Viscount St Alban, Aphotegm No. 184 (32), at 150 (1625).

27 On St. Thomas Aquinas’s views on just war, see G. Weigel, Tranquillitas Ordinis 36–38 (1987); on St. Augustine’s theory of just war, see id. at 29–30. See also T. Franck, the Power of Legitimacy Among Nations 80–81 (1990).

28 [H]e protested unto them, that neither the ambitious desire to inlarge his dominions, neither to purchase vaine renowme and worldlie fame, nor anie other consideration had mooved him to take the warres in hand; but onelie that in prosecuting his just title, he might in the end atteine to a perfect peace, and come to enjoie those peeces of his inheritance, which to him of right belonged: and that before the beginning of the same warres, he was fullie persuaded by men both wise and of great holinesse of life, that upon such intent he might and ought both begin the same warres, and follow them … and that without all danger of Gods displeasure or perill of soule.

R. Holinshed, supra note 3, at 129–30.

29 2 F. Suárez, Selections From Three Works 816 (Carnegie ed., G. Williams, A. Brown & J. Waldron trans. 1944) (1612, 1613, 1621).

30 Id. See also P. Haggenmacher, supra note 6, at 409–26.

31 F. Suárez, supra note 29, at 804.

32 Id. at 817.

33 F. Victoria, The Second Relectio on the Indians, or on the Law of War made by the Spaniards on the Barbarians, in De Indis et de iure belli relectiones 166–67(1) (Carnegie ed., J. P. Bate trans. 1917). These lectures were published posthumously in 1557.

34 Id. at 171(16).

35 M. Keen, supra note 7, at 71.

36 A. Nussbaum, supra note 17, at 97. See also P. Haggenmacher, supra note 6, at 203–23, 279–311; text at and note 54 infra.

37 2 A. Gentili, De Jure Belli Libritres 31 (Carnegie ed., trans. J. Rolfe 1933) (This is the 1931 translation of the 1612 edition. Prima commentatio de jure belli was published in 1588, the second and third parts in 1589. The three books appeared, as a new work, in 1598 under the title De jure belli libri tres. See Phillipson, Introduction to id. at 14a).

38 Id. at 32.

39 A. Nussbaum, supra note 17, at 92.

40 F. Suárez, supra note 29, at 816. Vitoria implied, supra note 33, at 177(32), that ignorance may make the war just for both sides. He wrote that “[a]part from ignorance [a war cannot be just on both sides] … for if the right and justice of each side be certain, it is unlawful to fight against it… .” However, “[a]ssuming a demonstrable ignorance either of fact or of law,” he continued, “it may be that on the side where true justice is the war is just of itself, while on the other side the war is just in the sense of being excused from sin by reason of good faith, because invincible ignorance is a complete excuse.” Id.

41 F. Suárez, supra note 29, at 850–51. Compare Abraham Lincoln’s statement: “In great contests each party claims to act in accordance with the will of God. Both may be, and one must be wrong.” Quoted by W. Safire, Freedom 787 (1987).

42 See P. Haggenmacher, supra note 6, at 436–37.

43 F. Victoria, supra note 33, at 170(11).

44 Id. at 171(17).

45 Id.

46 Id. at 186(56). See also P. Haggenmacher, supra note 6, at 409–26.

47 F. Suárez, supra note 29, at 828.

48 F. Victoria, supra note 33, at 182(44).

49 Id. at 184(50).

50 M. Keen, supra note 7, at 139. See also P. Haggenmacher, supra note 6, at 300–05.

51 M. Keen, supra note 7, at 65.

52 Id. at 70.

53 Id. at 137.

54 Id. at 71. Keen cites the fourteenth-century Bartholomew Of Saliceto, Super VIII Cod., tit. 51, l. 12: “It is tacitly assumed that it is in the nature of war waged by kings and lords, that it is public and general on both sides,” and the ca. 1396 disputations of Angelus of Perusia, Disputatio, Inc. ‘Renovata Guerra’ (printed ca. 1490, unpag.): “propter dubium ex utroque latere dicere possumus guerram justam.” M. Keen, supra note 7, at 71 n.1.

55 F. Suárez, supra note 29, at 850.

56 Id. at 851–52. See P. Haggenmacher, supra note 6, at 426–37.

57 A. Nussbaum, supra note 17, at 97.

58 See generally P. Haggenmacher, supra note 6, at 597–612.

59 A. Gentili, supra note 37, at 33. See generally P. Haggenmacher, supra note 6, at 74–139.

60 B. Ayala, Three Books on the Law of War and on the Duties Connected with War and on Military Discipline 23 (Carnegie ed. 1912, J. Bate trans.) (1582). It follows that things captured in war become the property of the captors. Id. at 35.

61 Id. at 25.

62 F. Victoria, supra note 33, at 169(7).

63 F. Suárez, supra note 29, at 805. Gentili criticized Spain for not treating as “lawful enemies” some Frenchmen captured in a war with Portugal who held letters from a king unrecognized by Spain. A. Gentili, supra note 37, at 26.

64 M. Keen, supra note 7, at 72.

65 A. Nussbaum, supra note 17, at 90.

66 M. Keen, supra note 7, at 65 (citing Nicholas of Tudeschi, who wrote in 1524).

67 Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. Ill), Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135.

Professor Haggenmacher aptly suggests that in contrast to the medieval doctrine of just war, which focused on the justness of the cause of war, the modern law of war, which underlies the Hague Regulations and the Geneva Conventions for the Protection of Victims of War, focuses on whether the war constitutes a “regular war,” i.e., on its “formal aspects.” Haggenmacher, La doctrine de la guerre juste chez les théologiens et les juristes du siècle d’or, in L’Espagne et la formation du droit des gens moderne 27, 28–29 (G. Van Hecke ed. 1988).

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

69 This doctrine has been applied by the United Nations rather selectively. The General Assembly’s Resolution on the Definition of Aggression of December 14, 1974, reaffirms that “the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force … and … shall not be the object of acquisition by another State resulting from such measures or the threat thereof.” GA Res. 3314, 29 UN GAOR Supp. (No. 31) at 142, UN Doc. A/9631 (1975).

By Resolution 662 of August 9, 1990 (reprinted in 29 ILM 1327 (1990)), the Security Council asserted its determination “to restore the sovereignty, independence and territorial integrity of Kuwait” and decided “that annexation of Kuwait by Iraq under any form and whatever pretext has no legal validity, and is considered null and void.” See also SC Res. 687A of April 3, 1991 (reprinted in 30 ILM 847 (1991)); Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452, 454 (1991).

In the more general context of the blueprint for settling the Six-Day War between Israel and the neighboring Arab states, for whose outbreak responsibility has not been authoritatively established, the Security Council emphasized in Resolution 242 of November 22, 1967, “the inadmissibility of the acquisition of territory by war.”

On some contemporary aspects of just war, see Y. Dlnstein, War, Aggression and Self-Defence 66–74 (1988); Schachter, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev. 113, 142–44 (1986).

70 Compare The final demands of Henry V’s ambassadors, March 1415, reprinted in 4 English Historical Documents 1327–1485, at 209 (D. Douglas ed. 1969); R. Holinshed, supra note 3, at 12–13. For an English translation of some of the correspondence between Henry V and Charles VI, see H. Nicolas, A History of the Battle of Agincourt, App. 1 (2d ed. 1832). For the French text of part of the correspondence, see 5 Chronique du Religieux de Saint-Denys 507–11, 527–31 (Collection de Documents Inédits sur l’Histoire de France, lère série, 1844). For the Latin version, see 4 T. Rymer, Foedera, pt. 2 at 106 (Hague ed. 1740). See also the self-justifying account of the negotiations in Gesta Henrici Quinti 14–15 (F. Taylor & J. Roskell eds. 1975).

71 L. Campbell, supra note 1, at 287, regards Henry’s demand for the surrender of Harfleur, to be discussed further in this essay, as an example of observance of such procedures.

72 Id. at 285–86.

73 Id.

74 E. Hall, supra note 4, at 57.

75 Kittredge, supra note 2.

76 Regarding termination of the Treaty of Brétigny, see 4 R. Delachenal, Hlstoire de Charles V, at 134–45 (1928). On the status of truces in medieval war, see M. Keen, supra note 7, at 206–17; A. Gentili, supra note 37, at 187 (“it is not necessary to declare war when such truces come to an end”). On the extension of truces in 1415 and their expiration, see 1 J. Wylie, supra note 26, at 444. Henry’s dispatch on July 28 of a herald bearing a letter to the King of France “was no doubt intended as a formal defiance to war, and as such the French accepted it.” C. Kingsford, supra note 26, at 122; accord, j. Wylie, supra, at 493–94. For the text of the letter of July 28, see H. Nicolas, supra note 70, at 5. On the “ultimatum” of Bishop Beaufort, see J. Wylie, supra, at 491.

77 G. Keeton, supra note 11, at 89; see also G. Keeton, supra note 18, at 72–73.

78 A. Gentili, supra note 37, at 15 (citing Pomponius).

79 Id. “[I]f war is not declared when it ought to be declared, then war is said to be carried on treacherously; and such a war is unjust, detestable, and savage. [That is] because it is waged according to none of the laws of war … .” Id. at 140. See also F. Suárez, supra note 29, at 837–38.

80 A. Gentili, supra note 37, at 39a.

81 H. Grotius, De jure belli ac pacis libri tres, bk. II, ch. XXVI, pt. IV(7) (Carnegie ed., F. Kelsey trans. 1925) (1646). Kelsey translated the 1646 edition rather than the first, 1625, edition.

82 Id., bk. III, ch. III, pt. VI(1).

83 Id., (2)–(3).

84 Oct. 18, 1907, 36 Stat. 2259, 2271 (pt. 2), TS No. 538, 1 Bevans 619. In a note to the entry on China, Treaties in Force, published by the U.S. Department of State, indicates that this Convention is “applicable only to Taiwan.”

85 See 2 L. Oppenheim, International Law 293 (H. Lauterpacht 7th ed. 1952); [United Kingdom] War Office, The Law of War on Land, Being Part III of the Manual of Military Law 7–8 (1958).

86 For the beginning of the exchange, see text following note 28 supra. The King continues:

King. So, if a son that is by his father sent about merchandise do sinfully miscarry upon the sea, the imputation of his wickedness, by your rule, should be imposed upon his father that sent him. Or if a servant under his master’s command transporting a sum of money be assailed by robbers and die in many irreconcil’d iniquities, you may call the business of the master the author of the servant’s damnation. But this is not so. The king is not bound to answer the particular endings of his soldiers, the father of his son, nor the master of his servant. For they purpose not their death when they purpose their services. Besides, there is no king, be his cause never so spotless, if it come to the arbitrament of swords, can try it out with all unspotted soldiers. Some peradventure have on them the guilt of premeditated and contrived murther; some, of beguiling virgins with the broken seals of perjury; some, making the wars their bulwark, that have before gored the gentle bosom of peace with pillage and robbery. Now if these men have defeated the law and outrun native punishment, though they can outstrip men, they have no wings to fly from God. … Then if they die unprovided, no more is the king guilty of their damnation than he was before guilty of those impieties for the which they are now visited. Every subject’s duty is the king’s, but every subject’s soul is his own. …

Williams. “Tis certain every man that dies ill, the ill upon his own head—the king is not to answer it.

[4, 1, 148–89]

87 See generally F. Shelling, Shakespeare and “Demi-Science” 97 (1927); J. O’Malley, supra note 20, at 46–47.

88 E. White, supra note 20, at 291–92.

89 See Geneva Convention No. III, supra note 67. Compare the conflict between Henry IV and Hotspur over the prisoners that Hotspur took. Shakespeare, The First Part of King Henry the Fourth, act 1, scenes 1 & 3.

English indentures commonly show the king reserving certain classes of prisoners to himself (e.g., high-ranking officials, members of the opposing royal family). A captor normally owed a share of his ransom money to his captain, and a captain a share to the king. After all, the right to make such captures only arose because the war was “licensed” by the king and waged on his authority. What Honoré Bonet said about spoil in his late fourteenth-century work is indicative of how difficult the problem was seen to be:

[T]he law on the matter is … by no means clear, and expressed opinion is doubtful. According to one law it is thought that the chattels a man wins should be his, but another law says that if a man comes into possession of chattels in war, he must deliver them to the duke of the battle [i.e., the commander, the prince or the lieutenant]. For my part I say that what a man gains from his enemies belongs to him, if we bear in mind that previously it belonged to his enemies, who have lost their lordship over it; but it does not belong to the captor to the extent that he is not obliged to hand it over to the duke of the battle; and the duke should share the spoils out among his men

… .

H. Bonet, The Tree of Battles 150 (G. Coopland ed. 1949) (trans, of Nys ed. 1883). More directly, Bonet’s discussion of prisoners points to similar difficulties:

I ask now, if a soldier has captured [a duke or marshal] … , to whom should he belong as prisoner, to the soldier, or to that soldier’s lord; for according to these laws it would appear that he is the soldier’s prisoner because the laws say that the captive is at the disposal of the captor. I assert, however, the contrary; for, if it is the case that the soldier is in the king’s pay, or in that of another lord, the prisoners or other possessions acquired should be the lord’s in whose pay the soldier is. And with regard to this the decretal says that all the booty should be at the king’s disposal, and he should dispose of it at his pleasure to those who, according to his estimation, have helped him to win. And, if anyone said the contrary, he could not maintain it according to written law, for if a prisoner must belong to him who has taken and conquered him, by similar reasoning every strong castle and fortified town should be his if he took them. And it would not be reasonable that at the king’s cost and expense he should gain land, for he does all that he does as a deputy of the king or of the lord in whose pay he is. Therefore what he conquers should be his lord’s; for what he does he does not by his own industry or his own initiative.

Id. at 134–35. See also M. Keen, supra note 7, at 144–45. While acknowledging that views on this question differed, C. De Pisan, supra note 5, at 223, believed that both prisoners and other spoils of war were “atte wille of the prynce whom apparteyneth to dystrybute them after dyscrecyon.”

The Ordinances of War attributed to King Henry V provided that soldiers pay their captains one-third of war booty (“wynnyng by werr”) (para. 16). As regards prisoners, the ordinances required that the captor bring his prisoners to his captain or master. The penalty for noncompliance was forfeiture of the captoF’s part of the ransom to his captain or master. Within eight days, the captain or the master was to bring the prisoner to the king, constable or marshal (para. 20). If he failed to do so, he forfeited his share to whoever first gave notice to the constable or marshal. Id. Ordinances of War made by King Henry V at Mawnt [Mantes], reprinted in Monumenta Juridica, The Black Book of Admiralty, App. at 459 (Travers Twiss ed. 1871). Sir Travers believes that these ordinances were probably issued by King Henry V in July 1419, when he was negotiating a treaty with the Duke of Burgundy and the Queen of France. Another text, The Statutes and Ordinaunces to be Keped in Time of Werre, although attributed to King Richard II, is probably a translation into English of a Latin version of Henry’s ordinances; this version omits nine of the ordinances found in the Mantes version. See The Black Book of Admiralty, supra, at 282 ed. nn.1 & 2.

90 J. Bodin, Six Livres de la République (1577), translated as The Six Bookes of A Commonweale (K. McRae ed. 1962) (facsimile reprint of Eng. trans., 1606).

91 M. Keen, supra note 7, at 150–51 (footnotes omitted).

92 See Lettres de Charles VII, Pour obvier aux pilleries et vexations des gens de guerre (Orléans, le 2 Novembre, 1439), 13 Ordonnances des Rois de France 306, 308 (Paris 1782):

cl.18) Item, Ordonne le Roi, que chacun Capitaine ou Lieutenant sera tenu des excès, maux & outrages commis par ceux de sa compagnie, ou aucun d’eux, en tant que sitost que plainte ou clameur sera faite au Capitaine, de ses gens, ou d’aucun d’eux, d’aucun malfait ou excès, que incontinent il prenne le délinquant, et le bailie à Justice pour en estre faite punition, selon son delit, raisonnable, selon ces présentes Ordonnances: & en cas qu’il ne le fera ou dissimulera ou delayera en quelque maniere que ce soit, ou que par négligence ou autrement le délinquant évadera & s’en ira, en telle maniere que punition & justice n’en soit faite, le Capitaine sera tenu du délit, comme celui qui l’aura fait, & en souffrira pareille peine qu’eust fait le délinquant.

See also M. Keen, supra note 7, at 150

93 A. Gentili, supra note 37, at 99.

94 Id. at 100.

95 Id.

96 Id.

97 See Article 18 and Commentary:

[T]hree different cases are treated separately in the three paragraphs mentioned: that of a single State act of a continuing character extending over a period of time (continuing act); that of an act consisting of a systematic repetition of actions or omissions relating to separate cases (composite act); and that of an act consisting of a plurality of different actions or omissions by State organs relating to a single case (complex act).

[1976] 2 Y.B. Int’l L. Comm’n, pt. 2 at 88, UN Doc. A/CN.4/SER.A/1976/Add.1 (Pt. 2).

98 A. Gentili, supra note 37, at 101 (emphasis added).

99 H. Grotius, supra note 81, bk. II, ch. XVII, pt. XX(1).

100 Id.

101 Id., pt. XX(2).

102 See, e.g., Jeannaud v. United States, 3 J. Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 3000 (1898); Zafiro case (Gr. Brit. v. U.S.), 6 R. Int’l Arb. Awards 160 (1925). See also I. Brownlie, Principles of Public International Law 452 (4th ed. 1990).

103 Oct. 18, 1907, 36 Stat. 2277, TS No. 539, 1 Bevans 631. Article 3 provides that a belligerent party “shall be responsible for all acts committed by persons forming part of its armed forces.” On responsibility of states under Article 3, see Affaire des Biens Britanniques au Maroc Espagnol (Spain v. U.K.), Report III (Oct. 23, 1924), 2 R. Int’l Arb. Awards 615, 645 (1925).

Article 3, of course, constitutes lex specialis. Regarding the general customary law rules on attribution, see F. García-Amador, L. Sohn & R. Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens 247–49 (1974); Meron, International Responsibility of States for Unauthorized Acts of Their Officials, 33 Brit. Y.B. Int’l L. 85 (1957). See also Condorelli, L’lmputation à l’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances, 189 Recueil Des Cours 9, 147–48 (1984 VI); Christenson, The Doctrine of Attribution in State Responsibility, in International Law of State Responsibility for Injuries to Aliens 321 (R. Lillich ed. 1983); T. Meron, Human Rights and Humanitarian Norms as Customary Law 155–71 (1989). For other scholarly writings on attribution to states of ultra vires acts of state organs, see [1975] 2 Y.B. Int’l L. Comm’n 66 nn.71–72, UN Doc. A/CN.4/SER.A/1975/Add.1 (1976).

104 [1975] 1 Y.B. Int’l L. Comm’n 7, UN Doc. A/CN.4/SER.A/1975 (comments of Prof. Reuter); see also T. Meron, supra note 103, at 225–26.

105 [1975] 1 Y.B. Int’l L. Comm’n, supra note 104, at 16 (comments by Special Rapporteur Roberto Ago). The ILC observed that “article 3 … attributes to the State responsibility … whether [the actors] acted as organs or as individuals.” 2 id., supra note 103, at 69 (footnote omitted). See also 1 L. Oppenheim, International Law 363 n.1 (H. Lauterpacht 8th ed. 1955). Article 3 was also intended to apply to cases “in which negligence cannot be attributed to the government itself,” i.e., violations committed “without the knowledge of governments, or against their will.” Sandoz, Unlawful Damage in Armed Conflicts and Redress under International Humanitarian Law, Int’l Rev. Red Cross, No. 228, May–June 1982, at 131, 136–37. See also Kalshoven, State Responsibility for Warlike Acts of the Armed Forces, 40 Int’l & Comp. L.Q. 827, 837–38 (1991).

106 Note the opinion of Professor Brownlie that “[i]mputability would seem to be a superfluous notion, since the major issue in a given situation is whether there has been a breach of duty: the content of ‘imputability’ will vary according to the particular duty, the nature of the breach, and so on.” I. Brownlie, System of the Law of Nations: State Responsibility, Part I, at 36 (1983) (footnote omitted). See also Arangio-Ruiz, Second Report on State Responsibility, UN Doc. A/CN.4/425/Add.1, para. 173 (1989) (“in the case of States as international persons a legal attribution seems actually to be an error and a redundancy”).

107 In 1946 General Tomuyuki Yamashita, the commander of the Japanese armed forces in the Philippines in 1944–1945, voiced a defense that echoed Henry’s plea of respondere non sovereign. Charged with failing to discharge his duty to control the operations of the persons subject to his command who had violated the laws of war by committing massacres, acts of violence, cruelty, homicide, pillage and destruction against the civilian population and prisoners of war, Yamashita maintained that the charge did not allege that he personally had either committed or directed the commission of these acts and that he could therefore not be held responsible for any violation of the law of war. On a petition of certiorari from a U.S. military commission, the U.S. Supreme Court considered a military commander’s criminal liability for such violations and stated that the aim of protecting civilian populations and POWs from brutality would largely be defeated if the commander of an invading army “could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.” In re Yamashita, 327 U.S. 1, 15 (1945). Extrapolating from provisions of the Hague Convention No. IV and other treaties, Chief Justice Stone concluded that they “plainly imposed on petitioner … an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.” Id. at 16. See the criticism of this decision by M. Walzer, Just and Unjust Wars 319–22 (1977).

In United States v. Sadao Araki, the International Tribunal for the Far East followed the Yamashita doctrine with regard to the responsibility of members of the Japanese cabinet for mistreatment of POWs. “even though they delegate the duties of maintenance and protection to others.” U.S. Naval War College, International Law Studies, Vol. 60, Documents on Prisoners of War 437, 438 (H. Levie ed. 1979). The Tribunal held that members of the government and military and civilian officials with control over POWs fail in their duty and become responsible for ill-treatment of prisoners if they do not establish and secure the efficient functioning of a system aimed at preventing such treatment. Id. at 438. Only for the last two centuries, however, had prisoners of war and civilian internees been considered to be in the power of the captor sovereign. Id. at 437. The principle of the responsibility of the state for the POWs captured by its troops is stated in the nineteenth- and twentieth-century law of war instruments.

108 The authoritative Commentary on Article 146 of the Geneva Convention (No. IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287, prepared by the International Committee of the Red Cross, mentions the guilty verdicts in several cases in Allied courts and observes: “In view of the Convention’s silence on this point, it will have to be determined under municipal law either by the enactment of special provisions or by the application of the general clauses which may occur in the penal codes.” Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 591–92 (O. Uhler & H. Coursier eds. 1958).

109 Article 86(2) of Protocol I Additional to the Geneva Conventions, supra note 68.

110 King. How yet resolves the governor of the town?

This is the latest parle we will admit.

Therefore to our best mercy give yourselves,

Or like to men proud of destruction

Defy us to our worst. For, as I am a soldier,

A name that in my thoughts becomes me best,

If I begin the batt’ry once again,

I will not leave the half-achiev’d Harflew

Till in her ashes she lie buried.

The gates of mercy shall be all shut up,

And the flesh’d soldier, rough and hard of heart,

In liberty of bloody hand shall range

With conscience wide as hell, mowing like grass

Your fresh fair virgins and your flow’ring infants.

What is it then to me if impious War,

Array’d in flames like to the prince of fiends,

Do with his smirch’d complexion all fell feats

Enlink’d to waste and desolation?

What is’t to me, when you yourselves are cause,

If your pure maidens fall into the hand

Of hot and forcing violation?

What rein can hold licentious wickedness

When down the hill he holds his fierce career?

We may as bootless spend our vain command

Upon th’ enraged soldiers in their spoil

As send precepts to the leviathan

To come ashore. Therefore, you men of Harflew,

Take pity of your town and of your people

Whiles yet my soldiers are in my command,

Whiles yet the cool and temperate wind of grace

O’erblows the filthy and contagious clouds

Of heady murther, spoil, and villainy.

If not—why, in a moment look to see

The blind and bloody soldier with foul hand

Defile the locks of your shrill-shrieking daughters,

Your fathers taken by the silver beards

And their most reverend heads dash’d to the walls,

Your naked infants spitted upon pikes

Whiles the mad mothers with their howls confus’d

Do break the clouds, as did the wives of Jewry

At Herod’s bloody-hunting slaughtermen.

What say you? Will you yield, and this avoid,

Or, guilty in defense, be thus destroy’d?

Governor. … We yield our town and lives to thy soft mercy.

Enter our gates, dispose of us and ours,

For we no longer are defensible.

King. Open your gates. Come, Uncle Exeter,

Go you and enter Harflew. There remain,

And fortify it strongly ’gainst the French.

Use mercy to them all.

[3, 3, 1–54]

Compare White, Shakespeare and Psychological Warfare, 12 Pub. Opinion Q. 68, 70–72 (1948).

111 Compare Hague Regulations annexed to Convention No. IV, supra note 103, Art. 23(c)–(d). In negotiating the terms of surrender of Rone, Henry insisted that “the gunners that had discharged anie peece against the Englishmen should suffer death.” R. Holinshed, supra note 3, at 69.

112 Additional Protocol I, supra note 68, Art. 51.

113 Geneva Convention No. IV, supra note 108, Arts. 33 and 27, respectively.

114 E.g., the treatment of Kuwaiti civilians by Iraq in 1990. See, e.g., SC Res. 674 (Oct. 29, 1990), reprinted in 29 ILM 1561 (1990); and UN Doc. A/C.3/45/L.90 (Nov. 27, 1990).

115 R. Holinshed, supra note 3, at 23–24. Sir Harris Nicolas writes that King Henry intimated to the French that, unless they would yield at discretion, they must not expect any terms. H. Nicolas, supra note 70, at 62. After the surrender, the King is reported to have stated that, although Harfleur had defied him, “in consideration of their having submitted to his clemency, he would not entirely withhold his mercy from them.” Id. at 66. This version is not mentioned in Holinshed or Hall and is therefore unlikely to have been known to Shakespeare. See also infra text at and notes 165–66.

116 2 J. Wylie, supra note 26, at 50 (1919).

117 R. Holinshed, supra note 3, at 24. But see H. Hutchison, King Henry V, at 114 (1967), who argues that Harfleur was not sacked. He explains the deportation order as based on Henry’s belief that Harfleur belonged to him, and on his wish to settle Englishmen in place of the departed natives. See also D. Seward, Henry V, at 67–68 (1988); and E. Jacob, Henry V, supra note 26, at 90. Jacob mentions Henry’s order prohibiting the sacking of Harfleur. Id. G. Towle, the History of Henry the Fifth 304 (1866), wrote that Henry tried to prevent pillage, but in vain. Despite Holinshed’s statement that Harfleur was sacked, historians thus obviously differ on whether it was. Because of his familiarity with Holinshed, Shakespeare must have assumed that Harfleur was sacked.

118 E. Hall, supra note 4, at 63; 2 J. Wylie, supra note 116, at 58–59.

119 E. Hall, supra note 4, at 63.

120 R. Holinshed, supra note 3, at 24. The First English Life of King Henry the Fifth, supra note 26, at 41, does not mention the deportation. See also H. Nicolas, supra note 70, at 68–69.

121 E. Hall, supra note 4, at 63.

122 R. Holinshed, supra note 3, at 24. Compare Geneva Convention No. IV, supra note 108, Art. 49 (which categorically prohibits deportation of the population of occupied territories and transfer of the occupying power’s population to occupied territory). Henry also expelled French population else where, e.g., in Caen. R. Holinshed, supra, at 58. In Rone, however, the terms of surrender included the right of the townspeople to remain in their dwellings.

123 M. Keen, supra note 7, at 121.

124 2 J. Wylie, supra note 116, at 59. “Il [Henry V] traita les chevaliers et les écuyers qui avaient été faits prisonniers avec plus de douceur et de générosité qu’on s’y attendait.” 5 Chronique du Religieux de Saint-Denys, supra note 70, at 545.

125 J. Brundage, Medieval Canon Law and the Crusader 140 (1969). The foundations of this doctrine can be found in Gratian’s Decretum. Id. at 141. On the latter, see notes 127, 130 infra.

126 Brundage does not appear to distinguish between the Truce of God and the Peace of God. See. J. Brundage, supra note 125, at 13 n.40, 161.

127 For a discussion of Gratian’s Decretum (ca. 1140), see F. Russell, The Just War in the Middle Ages 55, 70 (1975). Gratian proclaimed immunity from violence for pilgrims, clerics, monks, women and the unarmed poor. Id. at 70.

128 J. Johnson, Just War Tradition and the Restraint of War 127 (1981); P. Haggenmacher, supra note 6, at 268–72. The Magna Carta (June 12, 1215), reprinted in Sources of Our Liberties 11, 17 (R. Perry &J. Cooper eds. 1959), Art. 41, already recognized, on the basis of reciprocity, the immunity of merchants in time of war.

129 J. Johnson, supra note 128, at 132.

130 Women and the unarmed poor, however, were included in the protected categories in Gratian’s Decretum. F. Russell, supra note 127, at 70.

131 J. Johnson, supra note 128, at 135–36. Both women and unarmed priests were protected by King Henry V’s Ordinances of War, supra note 89; see also infra note 196.

132 See generally Twiss, Introduction to The Black Book of Admiralty, supra note 89, at lviii–lxxvii.

133 These ordinances are in French. See id. at lxxvi. On the official use of French in England in the thirteenth and fourteenth centuries, see id. at xlv–lvi.

134 Supra note 89. These ordinances were probably written in Latin, but there is no complete Latin text extant. Editor’s Notes, The Black Book of Admiralty, supra note 89, at 282–83. For the earliest English form of these ordinances, see supra note 89.

135 See infra note 196.

136 See also infra note 202.

137 H. Nicolas, supra note 70, at 52–53. According to Holinshed:

At his first comming on land, he caused proclamation to be made, that no person should be so hardie on paine of death, either to take anie thing out of anie church that belonged to the same, or to hurt or doo anie violence either to priests, women, or anie such as should be found without weapon or armor, and not readie to make resistance ….

R. Holinshed, supra note 3, at 21–22.

138 H. Nicolas, supra note 70, at 81–82. See also infra text at notes 196–204; H. Hutchison, supra note 117, at 111. Hutchison believes that “such regulations were common to most medieval armies, and the fact that they were issued at all argues as much for their regrettable necessity as for the mercy … of those who made them.” Id.

139 F. Victoria, supra note 33, at 179(36).

140 Id.

141 Id. at 179(37).

142 See Additional Protocol I, supra note 68, Art. 51(5)(b), which prohibits as indiscriminate an attack “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

143 F. Victoria, supra note 33, at 179(37). See P. Haggenmacher, supra note 6, at 275–76.

144 A. GENTILI, supra note 37, at 251.

145 Id. Gentili believed that women (id. at 251–54) and clergy (id. at 427–28) who take up arms lose their immunity. Regarding armed clergy’s loss of protection from acts of war, see also C. De Plsan, supra note 5, at 235–36, 257, 283.

146 A. Gentili, supra note 37, at 261–69.

147 F. Suàrez, supra note 29, at 843.

148 B. Ayala, supra note 60, at 45.

149 175 U.S. 677, 690–91 (1900). Article XXIII of the Treaty of Amity and Commerce between the United States and Prussia, July 9 and Sept. 10, 1785, provided that in case of war:

the merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance. And all women and children, scholars of every faculty, cultivators of the earth, artizans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power by the events of war they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.

8 Stat. 84, TS No. 292, 8 Bevans 78, 85–86.

150 See, e.g., Additional Protocol I, supra note 68, Arts. 50–52.

151 Id., Art. 81.

152 On sieges, see generally M. Walzer, supra note 107, ch. 10.

153 I.e., following an unconditional surrender, whether or not the city was stormed. M. Keen, supra note 7, at 122. A city that did not surrender by a treaty (appointment) could be taken by assault. Id. at 119. Medieval strategists taught that a fortress could be reduced “by methods of drought [poisoning or cutting the supply of water], famine [blockade] or fight [assault].” 2 J. Wylie, supra note 116, at 32.

The prohibition of starvation of civilians as a method of warfare is of quite recent origin. See Additional Protocol I, supra note 68, Art. 54. Interpreting its Resolution 661 of August 6, 1990 (reprinted in 29 ILM 1325 (1990)), which imposed sanctions on Iraq and prohibited importation of foodstuffs, except in humanitarian circumstances, the Security Council recognized, in Resolution 666 of September 13, 1990 (reprinted in 29 ILM at 1330), that foodstuffs might have to be supplied to the civilian population of Iraq or Kuwait to relieve human suffering.

154 M. Keen, supra note 7, at 121–22.

155 J. Johnson, supra note 128, at 133. Keen writes that the “stories of great sieges … loom large in the history of the Hundred Years War; in fact they are its turning points.” M. Keen, supra note 7, at 119. See also G. Parker, The Military Revolution 7–9 (1988).

156 M. Keen, supra note 7, at 123. While the penalties for holding out against a siege were brutal, a captain who surrendered a town without siege while there was a chance of defending it would be guilty of treason toward another prince. Id. at 124–25. See also B. Ayala, supra note 60, at 233.

157 E. Cheyney, The Dawn of a New Era: 1250–1453, at 165 (1936).

158 F. Victoria, supra note 33, at 184(52).

159 Id. at 184–85(52).

160 Id. at 185(52).

161 See also P. Haggenmacher, supra note 6, at 277.

162 A. Gentili, supra note 37, at 216. Invoking the law of Lycurgus and the Greeks, Gentili wrote that “when the victory was assured the slaying of the enemy should cease.” Id. at 211.

163 Id. at 219.

164 Id. at 227.

165 On the concept of mercy, see J. Johnson, supra note 128, at 6–10; P. Ramsey, The Just War: Force and Political Responsibility 150–51 (1968). In discussing war, St. Thomas Aquinas cited Augustine:

Among true worshippers of God those wars are looked on as peace-making which are waged neither from aggrandisement nor cruelty, but with the object of securing peace, of repressing the evil and supporting the good. … The craving to hurt people, the cruel thirst for revenge, the unappeased and unrelenting spirit, the savageness of fighting on, … all these are rightly condemned in wars.

35 Summa Theologiae: Consequences of Charity, Question 40, at 83 (Blackfriars ed. 1972). See also Question 44, on the commands to love, id. at 143, 155, 157.

Grotius recognized that history abounded with accounts of “the destruction of whole cities, or the levelling of walls to the ground, the devastation of fields, and conflagrations. … [They were] permissible also against those who have surrendered.” H. Grotius, supra note 81, bk. III, ch. V, pt. I. However, both in battle and in a siege, a “surrender of those who yield upon condition that their lives be spared ought not to be rejected,” id., ch. XI, pt. XIV(1), and “[t]he same sense of justice bids that those be spared who yield themselves unconditionally to the victor, or who become suppliants.” Id., pt. XV.

See also supra note 115.

166 See R. Holinshed, supra note 3, at 23–25; E. Hall, supra note 4, at 62–63.

167 J. Johnson, supra note 128, at 126.

168 Id. at 137.

169 F. Victoria, supra note 33, at 183(48). However, even in war with the Turks, it was not lawful to kill women, who were presumed innocent, or children. Id. at 179(36).

170 H. Bonet, supra note 89, at 153.

171 M. Keen, supra note 7, at 150–51, points out that by the terms of his contracts with his soldiers, the captain might be bound to ransom them. See also P. Lewis, supra note 22, at 212 (“It was possible to get help with one’s ransom from one’s lord: from the king or from one’s commander”).

172 H. Bonet, supra note 89, at 152, wrote that “if a knight, captain, or champion, take another in battle he may freely kill him …. [B]ut out of battle no man may kill another save in self-defence … .”

173 M. Keen, supra note 7, at 7, regards John of Legnano and Honoré Bonet (supra note 89) as the most famous academic lawyers (actually, Bonet was a monk, rather than an academic lawyer) who wrote about the law of war. Holland describes Legnano’s work as “the earliest attempt to deal, as a whole, with the group of rights and duties which arise out of a state of War.” Holland, Introduction to Giovanni da Legnano, Tractatus de bello, de Represaliis et de duello, at b (T. Holland ed. 1917) (Bologna ms. ca. 1390). Legnano completed his work in 1360, but it was published in 1477 and in better-known editions in 1487 and 1584. Id. at xxvii–xxix.

174 G. da Legnano, supra note 173, ch. XXX, at 253–54. See also id., ch. LXIX, at 274 (“Should mercy be shown to persons captured in a lawful war? We must say that it should, unless by sparing them there is fear of a disturbance of the peace”).

175 2 J. Wylie, supra note 116, at 154.

176 F. Victoria, supra note 33, at 182(45). F. Suárez, supra note 29, at 845, argued for the protection from killing of innocent persons, even if the punishment inflicted upon their state was insufficient; but he favored allowing, in these circumstances, the killing of some additional guilty individuals after the war. Id. at 841. “[T]he slaying of a great multitude would be thus permissible only when there was most urgent cause, nevertheless, even such slaughter may sometimes be allowed, in order to terrify the rest …” Id.

177 F. Victoria, supra note 33, at 182(46).

178 Id. at 182–83(47).

179 See supra text at notes 144–46, 162–64.

180 M. Keen, supra note 7, at 121.

181 Id.

182 F. Victoria, supra note 33, at 183–84(49).

183 Id. at 183(48).

184 A. Gentili, supra note 37, at 218.

185 Id. at 223.

186 See infra note 196.

187 M. Keen, supra note 7, at 192; see also id. at 190. Compare common Article 1 of the Geneva Conventions, which requires the parties “to respect and to ensure respect for the present Convention in all circumstances.” The authoritative Commentary prepared by the International Committee of the Red Cross adds: “[T]he Party to the conflict is responsible for the treatment accorded to protected persons. It would not, for example, be enough for a State to give orders or directions … . It is for the State to supervise the execution of the orders it gives.” Commentary on the Geneva Conventions of 12 August 1949, supra note 108, at 16.

188 F. Victoria, supra note 33, at 184–85(52).

189 A. Gentili, supra note 37, at 257. See also Meron, supra note 5, at 115–16. Although Grotius mentioned the argument that rape should be legal on the ground that “it is not inconsistent with the law of war that everything which belongs to the enemy should be at the disposition of the victor,” he reasoned that, being unrelated to either security or punishment, rape “should consequently not go unpunished in war any more than in peace. The latter view is the law not of all nations, but of the better ones.” H. Grotius, supra note 81, bk. III, ch. IV, pt. XIX(1).

190 F. Lieber, Instructions for the Government offirmies of the United States in the Field, Art. 44, originally published as U.S. War Department, Adjutant General’s Office, General Orders No. 100 (Apr. 24, 1863), reprinted in R. Hartigan, Lieber’s Code and the Law of War 54 (1983).

191 Supra note 111, Art. 46.

192 (Geneva) Convention Relative to the Treatment of Prisoners of War, July 27, 1929, Art. 3, 47 Stat. 2021, 2031 (pt. 2), TS No. 846, 2 Bevans 932 (“Women shall be treated with all the regard due to their sex”).

193 M. Walzer, supra note 107, at 133.

194 “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” Geneva Convention No. IV, supra note 108, Art. 27. For a similar prohibition, see Additional Protocol I, supra note 68, Art. 76(1).

195 Geneva Convention No. IV, supra note 108, Arts. 146–47. Rape and enforced prostitution were not included in the list of grave breaches in Article 85 of Additional Protocol I, supra note 68. See generally Krill, The Protection of Women in International Humanitarian Law, Int’l Rev. Red Cross, No. 249, November–December 1985, at 337, 341. A useful precedent for the international criminalization of rape as inhuman treatment, or even as torture, was established by the European Commission of Human Rights in Cyprus v. Turkey, Applications Nos. 6780/74 and 6950/75 (July 10, 1976). As regards rape committed by Turkish soldiers and officers, members of the armed forces of an occupying power, the Commission ruled that those acts which could be imputed to the occupying power constituted “inhuman … treatment” in the sense of Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221. Nos. 6780/74, 6950/75, paras. 373–74. The Commission emphasized that “[i]t has not been shown that the Turkish authorities took adequate measures to prevent this happening or that they generally took any disciplinary measures following such incidents.” Id., para. 373. See generally Byrnes, The Committee against Torture, in The Human Rights Organs of the United Nations (P. Alston ed. forthcoming); Bunch, Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 Hum. Rts. Q. 486 (1990).

196 R. Holinshed, supra note 3, at 30; see also E. Hall, supra note 4, at 64. According to 2 J. Wylie, supra note 116, at 117, “A cry was at once raised, the battalion was halted and the king refused to advance till the thief was caught. He was dragged out before the gazing files and hanged on a tree beside the church where the theft had been committed; the pyx was restored … .” See also H. Nicolas, supra note 70, at 91–92. The incident of the pyx is also reported in the contemporary account Gesta Henrici Quinti, supra note 70, at 69. The hanging of the offender appears to have been consistent with paragraph 3 of King Henry V’s Ordinances of War, supra note 89:

[A]lso, that no maner of man be so hardy to robbe ne to pille holy Church of no goode, ne ornament, that longeth to the Church, ne to sle no man of holy Church, religious, ne none other, but if he be armed, upon peyne of deth, noper that noman be so hardy to sle ne enforce no woman uppon the same peyn. And that noman take no woman prisoner, man of holy Churche, ne none oper religious, but if he be armed, uppon peyn of enprisonement and his body at the Kynges will.

Although these ordinances were promulgated in 1419, the earlier proclamations of King Henry appear to have contained similar prohibitions. See supra text at notes 137–38. According to R. Holinshed, supra note 3, at 58, Henry found a large amount of money at Caen castle, which he fully restored to the inhabitants.

197 2 J. Wylie, supra note 116, at 20–22. The story of the pyx is confirmed by The First English Life of King Henry the Fifth, supra note 26, at 44–45.

198 C. De Pisan, supra note 5, at 44; see also id. at 217.

199 Id. at 224–35.

200 Id. at 222, 64–65, and infra note 245. Like writers on modern law of war, Christine de Pisan considered the use of ruses permissible, but not perfidy. C. de Pisan, supra note 5, at 213–14.

201 C. de Pisan, supra note 5, at 184.

202 E.g., the prohibition against making captives of children under 14 years of age, or requiring that an occupied lying-in room be spared. 2 J. Wylie, supra note 116, at 22.

203 Id. at 23–24. See also supra text at note 138.

204 2 J. Wylie, supra note 116, at 24.

205 See F. Victoria, supra note 33, at 185–86(56); H. Grotius, supra note 81, bk. III, ch. VI, pt. XI.

206 M. Keen, supra note 7, at 137, 139–40; H. Bonet, supra note 89, at 150.

207 John of Legnano wrote that movables “become the property of the captor; but he is bound to assign them to the general of the war, who will distribute them according to deserts.” G. Da Legnano, supra note 173, ch. LXI, at 270. See also King Henry V’s Ordinances of War, supra note 89.

208 F. Victoria, supra note 33, at 184(51).

209 Id. at 180 (39)–(40). A. Gentili, supra note 37, at 270, wrote that “booty is commonly reckoned as a part of the fruits of victory.”

210 Soldiers who loot without a prince’s permission are bound to make restitution. F. Victoria, supra note 33, at 185(53).

211 F. Suárez, supra note 29, at 837.

212 Supra note 190, sec. II.

218 The Laws of War on Land (Oxford Manual), pt. II and Art. 32 (adopted by the Institute of International Law at Oxford, 1880), reprinted in The Laws of Armed Conflicts 35 (D. Schindler & J. Toman eds. 1988).

214 Supra note 115, Arts. 23(g), 28, 46, 47, 52, 53, 55, 56.

215 Lackeys, boys, pages, sutlers, waggoners and servants of the camp. 2 J. Wylie, supra note 116, at 148 n.6.

216 R. Holinshed, supra note 3, at 38.

217 But E. Hall, supra note 4, at 69, stated that the French killed servants they could find. Compare Hague Convention No. IV, supra note 103, Art. 13; the 1929 Geneva POW Convention, supra note 192, Art. 81; Geneva Convention No. III, supra note 67, Art. 4(A)(4). Under such provisions, service personnel accompanying the armed forces, without actually being members thereof, would be entitled to POW status but, as noncombatants, would not be a lawful object of attack unless they took a direct part in the hostilities. Additional Protocol I, supra note 68, Art. 51(3).

218 2 J. Wylie, supra note 116, at 171. In his discussion of the attack on the King’s baggage, Hibbert does not mention any loss of life. C. Hibbert, Agincourt 127 (1964).

219 1 W. Churchill, A History of the English-Speaking People 319 (1956). See also J. Davies, Henry V, at 190 (1935).

220 J. Keegan, The Face of Battle 84 (1978).

221 The First English Life of King Henry the Fifth, supra note 26, at 60–61. H. Nicolas, supra note 70, at 124, writes that King Henry was advised that the French had attacked his rear and plundered his baggage, but he does not mention any loss of life among the baggage attendants. Many other historians also mention the attack on the baggage train, but not loss of life among the attendants. See E. Jacob, Henry V, supra note 26, at 105; G. Towle, supra note 117, at 340; D. Seward, supra note 117, at 80; R. Mowat, Henry V, at 159 (1920).

222 F. Victoria, supra note 33, at 180(38)–(39).

223 See H. Grotius, supra note 81, bk. III, ch. XI, pt. IX.

224 Id., pts. XIII(2), XIV, XV; see also A. Gentili, supra note 37, at 216.

225 “Should those who attend in a war, but who cannot fight, enjoy the immunities [status] of combatants? Say that they should, provided that they are useful in counsel in other ways… .” G. da Legnano, supra note 173, ch. LXXI, at 274.

226 Gesta Henrici Quinti, supra note 70, at 93. See also Introduction by the Editors, id. at xviii, xxiii, xxviii.

227 R. Holinshed, supra note 3, at 38.

228 2 J. Wylie, supra note 116, at 171 (footnotes omitted); see also R. Holinshed, supra note 3, at 38.

229 See the discussion of the breadth of permissible reprisals by G. da Legnano, supra note 173, chs. CXXIV–CLXVI, at 308–30. Reprisals against prisoners of war are now outlawed. See, e.g., Geneva Convention No. III, supra note 67, Art. 13.

230 A rule protecting innocent private persons against reprisals was justified by Jacobus de Belvisio on the basis of the principle of individual responsibility: “a man ought not to be punished for another’s offence.” Cited by G. da Legnano, supra note 173, ch. CXLIV, at 321. John of Legnano disagrees. Id.

231 A. Gentili, supra note 37, at 232.

232 Id. Compare Genesis 18:23–26:

23. And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked?

24. Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that are therein?

25. That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right?

26. And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.

233 H. Grotius, supra note 81, bk. III, ch. XI, pt. XVI(1).

234 Id., Id. XVI(2). “[R]etaliation that is lawful … must be inflicted upon the very person who has done wrong … .” Id., ch. IV, pt. XIII(1).

235 R. Holinshed, supra note 3, at 38–39.

236 G. Da Legnano, supra note 173, at 274. Many historians believe that necessity justified Henry’s order to kill the prisoners. Thus, H. Hutchison, supra note 117, at 124, observes that “[b]y medieval standards Henry was obeying his soldier creed—military necessity justified any butchery … .” See also G. Towle, supra note 117, at 339–40. D. Seward, supra note 117, at 81, strongly dissents: “In reality, by fifteenth-century standards, to massacre captive, unarmed noblemen who, according to the universally recognized international laws of chivalry, had every reason to expect to be ransomed if they surrendered formally, was a peculiarly nasty crime … .”

237 Supra text at note 216. H. Nicolas, supra note 70, at 124, believes that “[i]mperative necessity” dictated the King’s order.

238 2 J. Wylie, supra note 116, at 171. Hutchison, who supports the traditional justification of necessity, argues that the fact that Henry’s own rich prisoners were exempted from being killed tallied with Henry’s reputation for “shrewd common sense—he simply could not afford to miss the chance of spectacular ransoms.” H. Hutchison, supra note 117, at 124.

239 2 J. Wylie, supra note 116, at 171–72. The archers, not being knights, may have had fewer scruples about killing members of the French nobility. Moreover, under the law of chivalry, only knights could enforce agreements to pay ransom. M. Keen, supra note 7, at 19–20. 1 F. Grose, Military Antiquities 345 (1786), cynically observed that “[t]he hopes of ransom frequently acted in the place of humanity, avarice assuming the place of mercy … .”

240 1 W. Churchill, supra note 219, at 319–20.

241 J. Keegan, supra note 220, at 84.

242 2 J. Wylie, supra note 116, at 171.

243 F. Victoria, supra note 33, at 183(49).

244 Id.

245 H. Bonet, supra note 89, pt. IV, ch. XIII, argued that “he who in battle has captured his enemy, especially if it be the duke or marshal of the battle … should have mercy on him, unless by his deliverance there is danger of having greater wars.” Elsewhere, Bonet explains that “to kill an enemy in battle is allowed by law and by the lord, but out of battle no man may kill another save in self-defence, except the lord, after trial.” Id., ch. XLVI. C. De Pisan, supra note 5, at 222, would prohibit the killing of prisoners even in battle: “Soo saye I to the well that it is ayenst all ryght and gentylnesse to slee hym that yeldeth hym.” Arguing against “a thynge Inhumayne and to grete a cruelness” and answering critics who invoked the ancient right of the captor to kill his prisoners, sell them, or otherwise dispose of them, she asserted that “amonge crysten folke where the lawe is altogyder grounded vpon myldefulnes and pyte [it] is not lycyte nor accordynge to vse of suche terannye whyche be acursed and reproued.” Id. Nevertheless, after the battle, she would allow the prince to kill a prisoner who would be dangerous to the prince if allowed to go free. Id.

246 See supra text at notes 167, 162, 182–83.

247 A. Gentili, supra note 37, at 216. Compare H. Grotius, supra note 81, bk. III, ch. IV, pt. X(2) (“So far as the law of nations is concerned, the right of killing such slaves, that is, captives taken in war, is not precluded at any time, although it is restricted, now more, now less, by the laws of states”). Elsewhere, however, Grotius advocated sparing captives who have surrendered unconditionally. Id., ch. XI, pt. XV.

248 A. Gentili, supra note 37, at 211–12.

249 id.

250 2 J. Wylie, supra note 116, at 175. C. Hibbert, supra note 218, at 129, observes: “Even the French chroniclers write of [Henry’s] action as though it were dictated by painful necessity.”

251 M. Keen, Chivalry 276 n.7 (1984).

252 Id. at 221. Note the matter-of-fact, nonjudgmental reference to the massacre by the French chronicler the Religieux de Saint-Denys: “Le roi d’Angleterre, croyant qu’ils [the French] voulaient revenir à la charge, ordonna qu’on tuat tous les prisonniers.” 5 Chronique du Religieux de Saint-Denys, supra note 70, at 565.

253 See also the heroic answer by Shakespeare’s Henry to the French herald Montjoy before the battle of Agincourt, in which Henry ruled out the possibility of being ransomed in case of defeat:

Herald, save thou thy labor.

Come thou no more for ransom, gentle herald.

They shall have none, I swear, but these my joints,

Which if they have as I will leave ’em them,

Shall yield them little, tell the Constable.

[4, 3, 121–25]

254 See also act 3, scene 6, and act 4, scene 3.

255 G. Keeton, supra note 18, at 70–71; G. Keeton, supra note 11, at 87–88. See also the oath of heralds in The Black Book of Admiralty, supra note 89, at 297, and the oath of “kynges of armes,” id. at 295.

256 M. Keen, supra note 7, at 57.

257 2 J. Wylie, supra note 116, at 140.

258 On the role of Montjoy at Agincourt, see R. Holinshed, supra note 3, at 39–40.

259 M. Keen, supra note 7, at 16, 50; see also M. Keen, supra note 251, at 137–40.

260 M. Keen, supra note 7, at 50.

261 R. Holinshed, supra note 3, at 39–40; see also C. Hibbert, supra note 218, at 134.

262 “Throughout the battle of Agincourt the heralds of both sides stood together on a hill, away from the fighting in which their order had no part ….” M. Keen, supra note 7, at 195.

263 Within the meaning of Article 1 of the Convention on Special Missions, opened for signature Dec. 16, 1969, Annex to GA Res. 2530 (XXIV), 24 UN GAOR Supp. (No. 30) at 99, UN Doc. A/7630 (1970).

264 See Vienna Convention on Diplomatic Relations, done Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95.

265 Sec H. Nicolson, Diplomacy 30–31 (1963).

266 See act 1, scene 2; act 2, scene 4.

267 H. Grotius, supra note 81, bk. II, ch. XVIII. For a fourteenth-century statement of the immunity of ambassadors from reprisals, see G. da Legnano, supra note 173, ch. CXXXIX, at 319. For an example of early fifteenth-century inviolability of ambassadors and their property, see C. De Plsan, supra note 5, at 234–35.

268 Henry V, 13 Encyclopaedia Britannica 285 (11th ed. 1910). For the English text of the Treaty, see 4 T. Rymer, supra note 70, pt. 3, at 179. For a detailed discussion of the negotiations, see P. Bonenfant, du Meurtre de Montereau au Traité de Troyes (1956).

269 R. Holinshed, supra note 3, at 84–86; see also J. Davies, supra note 219, at 250.

270 “[T]he king of England should send in the companie of the duke of Burgognie his ambassadours unto Trois in Champaigne sufficientlie authorised to treat and conclude of so great matter.” R. Holinshed, supra note 3, at 94. Henry V complained of the futility of the preinvasion negotiations with Charles VI on the ground that the French ambassadors “did not have full power to treat” (letter of April 7, 1415), and he demanded that the powers of the French ambassadors about to be sent should be “sufficiently ample” (letter of April 15, 1415). H. Nicolas, supra note 70, App. 1 at 3. See also C. Kingsford, supra note 26, at 113. Regarding the English ambassadors’ argument that they lacked power to conclude an agreement, see 1 J. Wylie, supra note 26, at 442.

271 See E. Satow, Guide to Diplomatic Practice 58–59 (Gore-Booth ed. 1979). An ancient chronicle notes:

He [Henry] there found the King and Queen of France, their daughter … and the Duke of Burgundy, who then ratified and confirmed every article of the treaty which had been agreed upon by their ambassadors, according to the stipulations made between the two kings and the Duke of Burgundy, with the consent of the citizens of Paris … .

A Fragment of the Chronicle of Normandy from the Year 1414 to the Year 1422 (ca. 1581), reprinted in Henrici Quinti Angliae Regis Gesta 252 (B. Williams ed. 1850). On the background of the Chronicle, see the editor’s Preface at viii.

272 R. Holinshed, supra note 3, at 95, 102–03. Holinshed reports: “It was also agreed, that king Henrie, during his father in lawes life, should in his steed have the whole governement of the realme of France, as regent thereof … .” Id. at 95. The grant to Henry of the right to govern France was justified on the ground that Charles “is withholden with diverse sickenesse, in such manner as he maie not intend in his owne person for to dispose for the needs of the foresaid realme of France.” Id. at 99. It was provided that during his lifetime, Charles would possess the crown of France, “and dignitie roiall of France, with rents and profits for the same.” Id. at 98. See also J. Davies, supra note 219, at 250–51.

273 The above discussion draws on Keen’s excellent analysis of the Treaty of Troyes, Diplomacy, in Henry V, at 181–99 (G. Harriss ed. 1985).

274 See Potter, supra note 22, at 249–53.

275 See E. Jacob, Henry V, supra note 26, at 149. Both realms would be “under the same person[,] … keeping neverthelesse in all maner of other things to either of the same realmes, their rights, liberties, customes, usages, and lawes, not making subject in any maner of wise one of the same realmes, to the rights, lawes, or usages of that other.” R. Holinshed, supra note 3, at 103.

276 Supra note 111 (particularly Arts. 43, 46,48). See also E. Jacob, Henry V, supra note 26, at 155. Compare Article 48 of the Hague Regulations to this provision of the Treaty of Troyes:

Also that we shall put none impositions or exactions, or doo charge the subjects of our said father without cause reasonable and necessarie, ne otherwise than for common good of the realme of France, and after the saieng and asking of the lawes and customes reasonable approoved of the same realme.

R. Holinshed, supra note 3, at 103.

277 Supra note 108 (particularly Arts. 54, 64).

278 Consider these excerpts from Holinshed’s version:

Also that we of our owne power shall doo the court of parlement in France to be kept and observed in his authoritie and sovereignetie ….

Also we to our power shall defend and helpe all and everie of the peeres, nobles, cities, townes, communalties, and singular persons, now or in time comming, subjects to our father in their rights, customes, privileges, freedomes, and franchises, longing or due to them in all manner of places now or in time comming subject to our father.

Also we diligentlie and truelie shall travell to our power, and doo that justice be administred and doone in the same realme of France after the lawes, customes, and rights of the same realme

… .

Also we to our power shall provide, and doo to our power, that able persons and profitable beene taken to the offices as well of justices and other offices belonging to the governance of the demaines, and of other offices of the said realme of France, for the good right and peaceable justice of the same, and for the administration that shall be committed unto them ….

R. Holinshed, supra note 3, at 99–100. On the Treaty of Troyes, see also H. Hutchison, supra note 117, at 186–89; E. Jacob, Henry V, supra note 26, at 148–55; G. Towle, supra note 117, at 410–13; R. Mowat, supra note 221, at 229–37; D. Seward, supra note 117, at 145–46; 3 J. Wylie & W. Waugh, The Reign of Henry the Fifth 198–204 (1968).

279 In his other histories, Shakespeare, however, focused far less on jus gentium.

280 See, e.g., supra text at notes 201, 245.

281 The report notes:

The law of armed conflict … with respect to collateral damage and collateral civilian casualties is derived from the Just War tradition of discrimination; that is, the necessity for distinguishing combatants from noncombatants and legitimate military targets from civilian objects. … [T]his tradition is a major part of the foundation on which the law of war is built … .

U.S. Department of Defense, Conduct of the Persian Gulf Conflict: An Interim Report to Congress Pursuant to Title V Persian Gulf Conflict Supplemental Authorization and Personnel Benefits Act of 1991 (Public Law 102–25), at 12–2 (1991).