Cook, Martin L.

Osiel, Mark J.

English

U.S. Naval War College Digital Commons

Naval War College ReviewVolume 54Number 2 Spring Article 172001Obeying Orders: Atrocity, Military Discipline &the Law of WarMartin L. CookMark J. OsielFollow this and additional works at: https://digital-commons.usnwc.edu/nwc-reviewThis Book Review is brought to you for free and open access by the Journals at U.S. Naval War College Digital Commons. It has been accepted forinclusion in Naval War College Review by an authorized editor of U.S. Naval War College Digital Commons. For more information, please contactrepository.inquiries@usnwc.edu.Recommended CitationCook, Martin L. and Osiel, Mark J. (2001) "Obeying Orders: Atrocity, Military Discipline & the Law of War," Naval War CollegeReview: Vol. 54 : No. 2 , Article 17.Available at: https://digital-commons.usnwc.edu/nwc-review/vol54/iss2/17Luddite, self-assurance that tomorrowwill look just like today.JAN VAN TOLCaptain, U.S. NavyOsiel, Mark J. Obeying Orders: Atrocity, MilitaryDiscipline & the Law of War. New Brunswick, N.J.:Transaction, 1999. 398pp. $39.95It is a fundamental belief of thoughtfulmilitary personnel that what they do,even in the heat of battle, remains amoral enterprise. This important andcareful volume critically assesses an im-portant legal pillar of that belief: thatmoral soldiers are to obey only lawfulorders. It is often said that soldiers areexpected to disobey unlawful orders,especially those ordering atrocities orviolations of the laws of war. SinceNuremberg, it is held that “superior or-ders” do not constitute a defense againstcharges of war crimes. Osiel makes itabundantly clear that these nostrums arefar from certain or legally reliable aspresently understood.Mark J. Osiel is a professor of law at theUniversity of Iowa and the author ofMass Atrocity: Collective Memory and theLaw (Transaction, 1999). He knowswhereof he speaks: he has interviewed ex-tensively the perpetrators and the victimsof Argentina’s “dirty war,” and his graspof the relevant literature (legal, philo-sophical, and military) on the subject ofobedience is capacious.With care and precision, the author chal-lenges the present standard, which requiressoldiers to disobey orders that are “mani-festly” illegal. This standard, he argues, isfraught with unclarity and is far too per-missive of illegal acts in war.The book is much more than a dry legaltreatise about a point of law. Osiel writeswith real passion and breadth. He includesimportant chapters on the psychology ofsmall military units and the requisites fortheir cohesion and combat effectiveness.He is careful throughout to acknowledgethe limitations of law as a constraint oncombat behavior. He argues with zeal forthe legal and practical possibility of doingbetter than the present legal standard inencouraging moral responsibility in offi-cers and soldiers. In the end, Osiel tran-scends the genre of legal analysis entirely,grounding his ethical appeal in the verynature and basis of the military profes-sion itself. He is Aristotelian when heclosely links moral conduct in war withthe virtues that define excellence in theprofession of arms itself.In addition, Osiel is helpful in a practicalsense. He suggests how best to use JudgeAdvocate General advisers on militarystaffs, and he offers concrete examples ofsubordinates who, faced with unclear or-ders (deliberate or otherwise), managedby means of requests for clarification toavoid committing war crimes.Osiel dissects the various ways in whichatrocities are committed: “(1) by stimu-lating violent passions among the troops(‘from below’); (2) through organized,directed campaigns of terror (‘fromabove’); (3) by tacit connivance betweenhigher and lower echelons, each with itsown motives; and (4) by brutalization ofsubordinates to foster their aggressive-ness in combat.” Since the causes are di-verse, each type will require its ownunique approach to control it; but Osiel’soverall point is profound: “The evidenceexamined here suggests that effectiveprohibitions against atrocity dependmuch less on the foreseeability to soldiersof criminal prosecution after the fact1 4 4 N A V A L W A R C O L L E G E R E V I E W5/14/01Monday, May 14, 2001 3:33:09 PMColor profile: DisabledComposite  Default screen1Cook and Osiel: Obeying Orders: Atrocity, Military Discipline & the Law of WarPublished by U.S. Naval War College Digital Commons, 2001than on the way soldiers are organizedbefore and during combat.” In otherwords, post-facto law enforcement is onlyone tool, and not a powerful one at that,in the struggle to prevent atrocities andwar crimes.It is this breadth of treatment that liftsOsiel’s discussion far above stereotypicallegal analysis and makes it a truly signifi-cant contribution to the literature of mil-itary professionalism and military ethics.Obeying Orders connects the moral argu-ment deeply to the professional commit-ments of soldiering. Members of themilitary profession should be encouragedto exercise their ethical judgment over aswide a scope as possible within the func-tional requirements of military effective-ness and efficiency.It would be a shame and a mistake if onlymilitary and civilian lawyers chose toread this profound meditation on themoral foundations of soldiering itself. In-formed by military practicality, and re-spectful of the possibilities of deepeningand widening the highest senses of mili-tary professionalism, Obeying Orders isthe first book on professional ethics that aseasoned officer ought to read.MARTIN L. COOKProfessor of EthicsU.S. Army War CollegeSmith, George W. The Siege at Hue. Boulder, Colo.:Lynne Rienner, 1999. 195pp. $49.95George W. Smith has provided an excel-lent historical summary of the battle ofHue, based on his personal experience asan information officer assigned to the 1stDivision of the Army of the Republic of(South) Vietnam (ARVN), and onafter-action reports, articles, andinterviews. The book highlights the com-plexities and dynamics of conductingmilitary operations in urban terrain, par-ticularly in a combat environment.Hue had been the imperial capital ofVietnam, and it was the country’s cul-tural and intellectual center. It was SouthVietnam’s third-largest city, strategicallylocated in the country’s narrowest part,near the coast. One of the few citieswhere until 1968 there had been no U.S.combat presence, it was virtually unde-fended and consequently a lucrative tar-get for the North Vietnamese army andthe Viet Cong.The battle of Hue was the largest singleengagement of the Vietnam War. Itlasted from 31 January to 25 February1968 and (not counting civilian deaths)claimed 5,713 casualties on both sides.Smith describes the battle as a classicjoint and combined operation. The citywas divided into two areas of responsibil-ity, with the South Vietnamese army as-signed the mission of retaking thenorthern portion and the U.S. Marinesthat of regaining control south of thePerfume River.The urban conditions in Hue were com-parable to those of Dodge City in theAmerican “Old West.” Some buildingshad wooden fronts, porches, and side-walks; the streets were narrow, and build-ings were densely concentrated. In themiddle of Hue, however, was a virtuallyimpregnable fortress known as the Cita-del, with towers, ramparts, moats, con-crete walls, and bunkers. The walls weretwenty-six feet high and in some sectionsforty feet thick. The moat was ninety feetwide at many points and up to twelve feetdeep. The Imperial Palace, another en-clave within Hue, was surrounded by atwenty-foot wall.B O O K R E V I E W S 1 4 55/14/01Monday, May 14, 2001 3:33:09 PMColor profile: DisabledComposite  Default screen2Naval War College Review, Vol. 54 [2001], No. 2, Art. 17https://digital-commons.usnwc.edu/nwc-review/vol54/iss2/17

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

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