Book Review - Obeying Orders: Atrocity, Military Discipline and the Law of War

AuthorMajor Walter M. Hudson
Pages07

1999] BOOK REVIEWS 225

OBEYING ORDERS:

ATROCITY, MILITARY DISCIPLINE AND THE LAW OF WAR1

REVIEWED BY MAJOR WALTER M. HUDSON2

  1. Introduction

    A middle-echelon officer, a major on a staff perhaps, is ordered to "transmit commands from headquarters to his subordinates requiring them to assemble prisoners of war for rail departure at a particular time or place." If it turns out that these prisoners are to be shipped to a factory where they will manufacture armaments, that would be a violation of the law of war. The person who gave the order to that middle-echelon officer would likely be guilty of a war crime. But what about that major, the one who transmitted the commands? Would he also be guilty of a law of war violation?

    There are two possible outcomes under existing defenses. Under the so-called "manifest illegality" rule, if the major was ignorant of the ultimate destination and purpose, his ignorance would excuse him of any culpability because the order was not illegal on its face. Under the so-called "reasonableness" standard, even if the order was not illegal on its face, he could still be held responsible if he should have known that the ultimate destinations for those prisoners were forced labor camps.

    This is a scenario Mark Osiel posits in his book Obeying Orders. Osiel argues for the acceptance in many, if not all modern militaries, of the latter "reasonableness" standard, as opposed to the more traditional "manifest illegality" rule. In coming to this conclusion, he has written an important, timely, and provocative book.

    What makes Osiel's book so impressive is that it weaves together information from various disciplines. He explores concepts in criminal and international law. Moral philosophers-from Aristotle to Alasdair

    MacIntyre-provide rich insights that are complemented by equally provocative insights from military sociologists and psychologists. Compared to many so-called "post modern" works, filled with convoluted paths of prose, thickets of jargon, and patches of quotes from unreadable theorists, Osiel's book is generally lucid and straightforward.

    What's more, Osiel has taken considerable time to talk, read, and listen to military commentators as well, to include active duty judge advocate general (JAG) officers and other army officers. Thus, Department of the Army lawyers such as Lieutenant Colonel Mark Martins and Hays Parks are frequently cited, and articles from military journals such as Parameters and Military Review noted and quoted.

    Osiel, a law professor at the University of Iowa, thus displays little of the dismissiveness and smug elitism that is rampant throughout academia when dealing with the military. The divide between the modern academy and the military, at least in the United States, often appears to be insurmountable, with stereotypes abounding on both sides. This is unfortunate. After all, for something as serious as devising realistic, useful ways to prevent atrocity and war crime, no one should be excluded from the discussion. But, if informed civilians have a right to be heard, soldiers deserve not to be patronized.

    Osiel's efforts to bridge this gap, as well as his scholarship, for the most part pays off. If he, on occasion, adopts what military practitioners may consider an "ivory tower" pose, he makes considerable efforts to understand both sides. If his scholarship does not always validate his overall argument for preferring the "reasonableness" standard over the "manifest illegality" rule, it provides the kind of information that raises questions and that causes both the professor and the practitioner to reflect deeply on this most serious of subjects.

  2. "Manifest Illegality" vs. "Reasonbleness": Rules vs. Standards

    In understanding the distinction between the "manifest illegality" and the reasonableness defense, the reader must first understand that in American military courts the latter defense is the current defense. As Rule for Court-Martial (R.C.M.) 916(d) states: "It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."3 An American judge advo-

    cate may ask, if indeed Osiel's position is already the U.S. military's current "formal" position, whether there is a reason to read this book.

    There is a reason. To Osiel, the law on the "books" is a legal formalism that may not be observed in either the courtroom or the battlefield. While democracies such as the United States and Germany have the "reasonableness" standard, "even these rich democracies have yet to appreciate the full repercussions of this approach to war crime, for they do not seriously investigate, much less prosecute, unlawful obedience where its criminal nature would not be immediately manifest to all."4 Thus, the United States military "has not sought to prosecute acts of obedience to criminal orders unless these were also manifestly illegal on their face."5

    Osiel clearly understands-as many civilian commentators do not-that simply having (or changing) the law on the books is just the beginning of the solution. The election to investigate, to prosecute, and to render a verdict, all are influenced by many factors beyond the particular Rule for Court-Martial. What Osiel seeks is a kind of "acculturation" of this reasonableness standard within the military communities that will presumably abide by it. This is where Osiel again differs from many of his civilian colleagues, for he recognizes that this sort of acculturation is only possible within the "internal life of military organizations."6 Only if the culture itself is informed of the standard (indeed, trains to the standard) will it have any meaning to that culture. Laws of war will be most effectively enforced and complied with not in the procedural rules, defenses, or threats of punishment that may occur after the battle is done, but rather in the training that a soldier receives-well before the soldier finds the possibility of atrocity before him.

    The way to do this is to incorporate the "reasonableness" standard as a kind of military virtue, rather than rely on the bright line "manifest ille-

    gality" rule. At first blush, having such a bright line rule, particularly during the chaos of combat, seems especially beneficial. The "reasonableness" standard, on the other hand, is not as clearly defined, and is indeed defined primarily by its cultural context. Yet, this cultural context is exactly what Osiel depends upon in enforcing the standard:

    The highly chaotic nature of war, despite all efforts to rationalize and routinize it, ensures that professional warriors will always be governed by some form of "virtue ethics." The law should take this...

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