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

Obeying Orders: Atrocity, Military Discipline and the Law of War. By Mark J. Osiel. New Brunswick, N.J.: Transaction Publishers, 1999. 398 pages. $39.95.

International news reports since the beginning of the year have recorded a steady stream of precedent-smashing events in the area of war crimes prosecution. On New Year's Eve, then-President Clinton made the controversial decision to authorize the United States to sign the Rome Treaty, which creates a permanent international criminal court for the trial of war criminals. In February 2001, three Bosnian Serbs were convicted as war criminals by the UN's International Criminal Tribunal for the former Yugoslavia (ICTY) for raping and torturing Muslim women and girls during the Bosnian War. It was the first time that the international community officially labeled rape, viewed as an "instrument of terror," as a "crime against humanity." Clearly, there is a growing international consensus that certain acts are morally reprehensible in any context, including the fog of war. In this setting, Mark Osiel's groundbreaking critical analysis of the problem of motivating ethical behavior among combat troops, Obeying Orders : Atrocity, Military Discipline and the Law of War, is urgently relevant.

Osiel, a law professor at the University of Iowa, has wrestled with the complex subject of the conduct of war for many years. His research has gone beyond traditional academic and legal scholarship to include firsthand interviews with war criminals and their victims. Obeying Orders follows on the heels of several related journal articles and a 1997 volume entitled Mass Atrocity, Collective Memory and the Law. This most recent work deserves the respect and attention of applied ethicists, lawyers, military professionals, and policymakers alike.

The central thesis of Obeying Orders is found on page 23 of the text, where the author firmly states that "the best prospects for minimizing war crimes (not just obvious atrocity) derive from creating a personal identity based on the virtues of chivalry and martial honor, virtues seen by officers as constitutive of good soldiering." In other words, Osiel asserts that the best way to ensure that a young Marine will not commit a war crime even if given (illegal) orders to do so by a superior officer is not to drill the said Marine on the provisions of international law and the UCMJ, but rather to help him internalize an appropriate warrior's code that will inspire him to recognize and reject the criminal directions of his officer. Osiel notes that the statement, "Marines don't do that," is "surely a simpler, more effective way of communicating the law of war than threatening prosecution for war crimes, by the enemy, an international tribunal, or an American court-martial."

Osiel makes an extremely compelling case for this psychologically powerful code- and character-based approach to the prevention of war crimes. He connects it to Aristotle's virtue ethics, which stresses the importance of positive habituation and the development of certain critical virtues, such as courage, justice, benevolence, and honor, over the rote memorization of specific rules of conduct. Simply staying within the bounds of a rulebook, as Osiel observes, can often be less demanding than consistently upholding high standards of character and nobility:

The manifest illegality rule merely sets a floor, and a relatively low one at that: avoid the most obvious war crimes, atrocities. It does not say, as does the internal ideal of martial honor: always cause the least degree of lawful, collateral damage to civilians, consistent with your military objectives. By taking seriously such internal conceptions of martial honor, we may be able to impose higher standards on professional soldiers than the law has traditionally done, in the knowledge that good soldiers already impose these standards upon themselves.

Osiel goes on to highlight the importance of the use of shaming tactics--especially so-called "reintegrative shaming," which aims to reform, not permanently ostracize, the offender--to motivate modern warriors' dedication to the ideals of martial honor. He also defends the value of presenting persons entering the military culture with role models who remained true to their codes of honor even in the face of overwhelming challenges or temptations. As further support for his position, he points out that this approach of reinforcing desirable character traits among military professionals in no way undermines a rule-following approach, but rather provides additional motivation to obey rules when they are clear (so-called "bright-line rules") while giving much-needed guidance when the rules are not enough.

I find Osiel's arguments remarkably persuasive. Furthermore, I believe their strength and coherence is such that even those who are less sympathetic to his views have an obligation to familiarize themselves with his contribution to the debate. That said, I cannot conclude my review without adding one minor qualification to my otherwise hearty recommendation of Obeying Orders. While the content of Osiel's book is excellent, some aspects of his writing style are irritating. For one thing, he is given to excessive quotations. There are several passages in which it seems as though every other line is from another source. At times I wanted to shout, "Can't you put anything in your own words?" This occasionally becomes more' than a style issue when Osiel commits the "appeal to authority" fallacy by quoting the conclusions of others without presenting the arguments that support them or defending them himself. In addition, some of his lengthier footnotes contain important assertions or clarifications that should hav e been integrated into the main body of the work. Finally, on a more trivial note, I found Osiel's "politically correct" use of the female pronoun throughout when referring to soldiers or officers jarring and contrived, given that women are still a minority in the military profession. Alternating genders would have been preferable.

Beyond question, Obeying Orders is a highly valuable component of the current literature on the prevention of war crimes. This is true not only because Osiel presents a well-considered and potentially fruitful method for motivating moral conduct in war but also because he follows up his theoretical musings with practical advice on how to effect the changes he suggests. After making his case for character-based training, Osiel illustrates exactly what he has in mind by exploring better ways to understand and reshape the psychology of combat units, to find new, more effective roles for military legal advisors, and to empower individual soldiers to avoid the commission of illegally ordered war crimes, minor to atrocious. No one who is interested in reducing the horror of war can afford to ignore the hope that Osiel's Obeying Orders offers.

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