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Obeying Orders: Atrocity, Military Discipline, and the Law of War |
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| The law now generally excuses soldiers who
obey a superior's criminal order unless its
illegality would be immediately obvious to anyone
on its face. Such illegality is "manifest,"
on account of its procedural irregularity, its
moral gravity, and the clarity of the legal
prohibition it violates. These criteria, however,
often conflict with one another, are over- and
underinclusive, and vulnerable to frequent
changes in methods of warfare. Though sources of
atrocity are shown to be highly variable, these
variations display recurrent patterns, indicating
corresponding legal norms best suited to
prevention. There are also discernible
connections, that the law can better exploit,
between what makes men willing to fight ethically
and what makes them willing to fight at all.
Specifically, obedience to life-threatening
orders springs less from habits of automatism
than from soldiers' informal loyalties to combat
buddies, whose disapproval they fear. Except at
the very lowest levels, efficacy in combat
similarly depends more on tactical imagination
than immediate, letter-perfect adherence to
orders. To foster such practical judgment in the field, military law should rely more on general standards than the bright-line rules it has favored in this area. A stringent duty to disobey all unlawful orders, coupled to a standard-like excuse for reasonable errors, would foster greater disobedience to criminal orders. It would encourage a more fine-grained attentiveness to soldiers' actual situations. It would thereby enable many to identify a superior's order as unlawful, under the circumstances, in situations where unlawfulness may not be immediately and facially obvious to all. This approach aims to prevent atrocity less by increased threat of ex post punishment, than by ex ante revisions in the legal structure of military life. It contributes to "civilianizing" military law while nonetheless building upon virtues already internal to the soldier's calling. In developing these conclusions, the author draws evidence from a wide array of recent wars and peacekeeping missions. |
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Copyright
© 1998 by California Law Review, Inc. |
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