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

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9781560004073: Obeying Orders: Atrocity, Military Discipline, and the Law of War

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.

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About the Author:

Mark Osiel is professor of law at the University of Iowa. He is the author of Obeying Orders: Military Discipline, Atrocities and the Law of War.

Review:

“A short review cannot really do justice to this careful blend of law, moral philosophy, and military history. Why do soldiers commit atrocities? How can they be prevented from doing so? The questions framing the book are at some level unanswerable, but Oseiel’s thoughtfulness in grappling with this issue is impressive. So too is his sympathetic effort to get inside the mindset of professional soldiers, which leads him to rely (despite his legal background) more on the cultivation of sound judgment than on rules, principles, and orders. An important addition to the bookshelf of works on the law of war.”

Foreign Affairs

“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 musing with practical advice on how to effect the changes he suggests. . . . No one who is interested in reducing the horror of war can afford to ignore the hope that Osiel’s Obeying Orders offers. “

Parameters

"[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

“Obeying Orders is must reading...remarkable.”

—Col. William Eckhardt, Chief Prosecutor, My Lai Cases

“Professor Osiel has filled a vacuum in legal and military scholarship with a masterwork.”

—Col. Mark Martins, Army JAG

“Obeying Orders is an inspiring example of how attention to context-specific norms can be used not only to describe but also to criticize legal practices. Osiel’s work furnishes a template for progressive legal theorists who recognize the contribution that culture and history make to our understanding of what the law is and should be.”

—Dan Kahan, Yale Law School

“I’ve had a wonderful time reading Obeying Orders.”

—Admiral James Stockwell

“No pupil of the military art, no student of the politics of military authority, should be without this comprehensive, probing, and provocative book...compelling reading.”

—Col. Gary Solis, Chair, Department of Law, West Point, Journal of Political Science

“Philosophers since Socrates have been wrestling with the question of obedience. ...Osiel demonstrates that he is the only person who can connect this philosophical thinking with rich empirical investigation of how real people have reacted in the equally real situations when they are confronted with wicked orders and wicked laws. This book is an important and uniquely successful blend of moral philosophy, legal theory, and political sociology.”

—Frederick Schauer, Harvard University

“...[A]n admirable blend of clear-eyed realism, deep moral commitment, and legal sophistication. It addresses an extraordinarily difficult question: how can law function effectively when soldiers must make critical decisions under the stress of war? There are no easy answers, but Osiel’s analysis is a large step forward.”

—Daniel Farber, University of Minnesota

"A timely and important book. . . . Mr. Osiel has done lawyers, soldiers, and politicians an invaluable service."

—Martin van Crevald, Hebrew University of Jerusalem

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