Product Description

A soldier obeys illegal orders, thinking them lawful. When should we excuse his misconduct as based in reasonable error? How can courts convincingly convict the soldier's superior officer when, after Nuremberg, criminal orders are expressed through winks and nods, hints and insinuations? Can our notions of the soldier's "due obedience," designed for the Roman legionnaire, be brought into closer harmony with current understandings of military conflict in the contemporary world? Mark J. Osiel answers these questions in light of new learning about atrocity and combat cohesion, as well as changes in warfare and the nature of military conflict. Sources of atrocity are far more varied than current law assumes, and such variations display consistent patterns. The law now generally requires that soldiers resolve all doubts about the legality of a superior's order in favor of obedience. It excuses compliance with an illegal order unless the illegality - as with flagrant atrocities - would be immediately obvious to anyone. But these criteria are often in conflict and at odds with the law's underlying principles and policies. Combat and peace operations now depend more on tactical imagination, self-discipline, and loyalty to immediate comrades than on immediate, unreflective adherence to the letter of superiors' orders, backed by threat of formal punishment. The objective of military law is to encourage deliberative judgment. This can be done, Osiel suggests, in ways that enhance the accountability of our military forces, in both peace operations and more traditional conflicts, while maintaining their effectiveness. Osiel seeks to "civilianize" military law while building on soldiers' own internal ideals of professional virtuousness. He returns to the ancient ideal of martial honor, reinterpreting it in light of new conditions, arguing that it should be implemented through realistic training in which legal counsel plays an enlarged role rather than by threat of legal prosecution. Obeying Orders thus offers a compelling answer to the question that has most haunted the moral imagination of the late twentieth century: the roots - and restraint - of mass atrocity in war.

Product Details

• Amazon Sales Rank: #1069529 in Books
• Published on: 2001-10-31
• Original language: English
• Number of items: 1
• Binding: Paperback
• 407 pages

Review
"[Osiel] argues with passion for the legal and practical possibility of doing better than the present legal standard in encouraging moral responsibility in officers and individual soldiers. In the end, Osiel transcends the genre of legal analysis entirely to ground his ethical appeal in the very nature and basis of the military profession itself." - Martin Cook, Naval Law Review"

About the Author
Mark Osiel is professor of law at the University of Iowa. He is the author of Mass Atrocity. Collective Memory, and the Law.

Customer Reviews

A stimulating look at this most controversial of subjects
An excellent analysis of inter alia what causes soldiers to commit atrocities in furtherance of superior orders, with many practical illustrative examples. Prof Osiel also looks at how, through use of imprecise language, superiors can avoid liability for the acts of their subordinates. He considers methods of training and he challenges the effectiveness of the manifest illegality defence and proposes replacing it with a rule requiring soldiers to disobey all illegal orders unless reasonably convinced of their legality. Commanders may find this too radical an approach, as they will be in possession of far more information concerning the overall operational plan, whereas the soldier is only aware of that small part in which he participates. As Prof Osiel recognises, this difference could be crucial. The military promotes a culture of obedience. Although the manifest illegality rule is more generous to the soldier, it does recognise that decisions sometimes have to be taken in exceptionally difficult circumstances and that complying with an order in such circumstances should negative the mens rea of the soldier and shift the onus for responsibility onto the superior who, in possession of the facts, gave the order in the first place. Prof Osiel does not deny that his proposal will make soldiering even harder than it already is. He concludes that the challenge is to help the professional soldier acquire a deeper appreciation of the morally problematic features of his calling. This is a very worthwhile book and will appeal to academics, military law practitioners and serving officers alike.