Laws of War and International Law - Volume 4
R. van der Wolf and W. van der Wolf
In 2004 this first volume in this series was published. Now more than 10 years later we go in this 4th volume of the collection back in time and try to find the roots of Laws of war!
In this volume we focus on three trials in the past. These trials of 1269, 1649 and 1660 had each an aspect that reverberated in the oncoming development of the Laws of War and International Law till our present days.
We present the trials based on research in old books and factual proceedings of the trials. Our choice for these trials is hereby short elaborated.
The trial of Konradin of Hohenstaufen in 1268 was one of the first trials where the court consisted of judges from different places. The constitution of this court, its exact composition and even the question whether it was a ‘formal’ court are even nowadays not very clear. But according to contemporary writers and chroniclers a court with judges from city-states of Italy was convened. The trial of Charles I of England in 1649 is the first fully recorded trial of a reigning monarch who reigned with a Parliament. In the case of Charles I the King that was not disposed of; he was tried before (a part of) Parliament in a special commission and the trial was a political one. Charles insisted that the trial was illegal, explaining, “No learned lawyer will affirm that an impeachment can lie against the King... one of their maxims is, that the King can do no wrong”. Charles maintained that the House of Commons on its own could not try anybody, and so he refused to plead.
During the trial of Charles I one of his guardsmen, Colonel Daniel Axtell, had spoken inciting words and had urged his soldiers to humiliate the King with words and non violent deeds during his process. After restoration of the monarchy Axtell was brought before a court in 1660 and accused of these misdeeds done by him and his soldiers. He defended himself stating that he had received orders to act as he had done. His words “Dammed if I do, dammed if I don’t” (if he had disobeyed the order he could have been killed, now he had obeyed the order, he was to be killed). In the next centuries this ‘double bind’ dilemma would transform to the fundamental ear crimes issues of ‘command responsibility’ and ‘superior orders in international law.
Pages: 301 pages