Obeying Orders: Atrocity, Military Discipline & the Law of War
Cook, Martin L., Naval War College Review
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. …