Obeying Orders: Atrocity, Military Discipline & the Law of War. - Review - book review

Naval War College Review, Spring, 2001 by Martin L. Cook

Osiel, Mark J. Obeying Orders: Atrocity, Military Discipline & the Law of War. New Brunswick, N.J.: Transaction, 1999. 398pp. $39.95

It is a fundamental belief of thoughtful military personnel that what they do, even in the heat of battle, remains a moral enterprise. This important and careful volume critically assesses an important legal pillar of that belief: that moral soldiers are to obey only lawful orders. It is often said that soldiers are expected to disobey unlawful orders, especially those ordering atrocities or violations of the laws of war. Since Nuremberg, it is held that "superior orders" do not constitute a defense against charges of war crimes. Osiel makes it abundantly clear that these nostrums are far from certain or legally reliable as presently understood.

Mark J. Osiel is a professor of law at the University of Iowa and the author of Mass Atrocity: Collective Memory and the Law (Transaction, 1999). He knows whereof he speaks: he has interviewed extensively the perpetrators and the victims of Argentina's "dirty war," and his grasp of the relevant literature (legal, philosophical, and military) on the subject of obedience is capacious.

With care and precision, the author challenges the present standard, which requires soldiers to disobey orders that are "manifestly" illegal. This standard, he argues, is fraught with unclarity and is far too permissive of illegal acts in war.

The book is much more than a dry legal treatise about a point of law. Osiel writes with real passion and breadth. He includes important chapters on the psychology of small military units and the requisites for their cohesion and combat effectiveness. He is careful throughout to acknowledge the limitations of law as a constraint on combat behavior. He argues with zeal for the legal and practical possibility of doing better than the present legal standard in encouraging moral responsibility in officers and soldiers. In the end, Osiel transcends the genre of legal analysis entirely, grounding his ethical appeal in the very nature and basis of the military profession itself. He is Aristotelian when he closely links moral conduct in war with the virtues that define excellence in the profession of arms itself.

In addition, Osiel is helpful in a practical sense. He suggests how best to use Judge Advocate General advisers on military staffs, and he offers concrete examples of subordinates who, faced with unclear orders (deliberate or otherwise), managed by means of requests for clarification to avoid committing war crimes.

Osiel dissects the various ways in which atrocities are committed: "(1) by stimulating violent passions among the troops ('from below'); (2) through organized, directed campaigns of terror ('from above'); (3) by tacit connivance between higher and lower echelons, each with its own motives; and (4) by brutalization of subordinates to foster their aggressiveness in combat." Since the causes are diverse, each type will require its own unique approach to control it; but Osiel's overall point is profound: "The evidence examined here suggests that effective prohibitions against atrocity depend much less on the foreseeability to soldiers of criminal prosecution after the fact than on the way soldiers are organized before and during combat." In other words, post-facto law enforcement is only one tool, and not a powerful one at that, in the struggle to prevent atrocities and war crimes.

It is this breadth of treatment that lifts Osiel's discussion far above stereotypical legal analysis and makes it a truly significant contribution to the literature of military professionalism and military ethics. Obeying Orders connects the moral argument deeply to the professional commitments of soldiering. Members of the military profession should be encouraged to exercise their ethical judgment over as wide a scope as possible within the functional requirements of military effectiveness and efficiency.

It would be a shame and a mistake if only military and civilian lawyers chose to read this profound meditation on the moral foundations of soldiering itself. Informed by military practicality, and respectful of the possibilities of deepening and widening the highest senses of military professionalism, Obeying Orders is the first book on professional ethics that a seasoned officer ought to read.