Obeying Orders

Atrocity, Military Discipline and the Law of War

Mark J. Osiel

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351502566
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto militare

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.

Part I Obedience to Superior Orders

1. Virtues and Vices of Military Obedience

Is military culture better viewed as a source of atrocities or of their prevention? Roughly speaking, there are two schools of thought on the question.¹

The first holds that the military caste, left to its own devices, will never give sufficient weight to humanitarian concerns. It follows that civilian society, through its political representatives, must impose its more universal norms, those of international law rooted increasingly in the idea of human rights, upon military officers.

It is no accident, in this regard, that serious thinking about international law literally began, in the work of Grotius, with a critique of Aristotelian “virtue ethics” and an effort to ground duties in war, instead, on natural law²—on elementary principles, readily accessible (theoretically) to everyone, regardless of special dispositions of character.

Without civilian imposition of such universal morality, on this view, officers will tend to form a separate society with norms less attentive to such principles. To this end, civil society should integrate officers as much as possible into its schools, churches, and political parties, making them virtually indistinguishable from civilians in moral character, ethical sensibility, and range of political views. Military law must advance this agenda, cracking the culture of militarist, masculinist folkways. So argues former U.S. Rep. Pat Schroeder, for instance.³

In this view, officers who celebrate martial honor as the basis of military ethics display a discomforting resemblance to lawyers defending aristocratic ideals of “noblesse oblige” as the foundation of legal ethics.⁴ In both cases, moral duties are explicitly based on unquestioned assumptions about the indispensability of a special, privileged caste and its unique traditions—notions that understandably arouse skepticism in a modern liberal society. Our moral duties to one another, on the battlefield no less than anywhere else, derive from our status as human beings, not from our occupation of a social role, on this account.⁵ The soldier thus owes his moral duties—whatever they may be—to enemy troops and noncombatants simply as other persons (regardless of his or their social roles) who are, like himself, free and equal moral agents.

Martial Pride as the Root of Militarism?

Martial honor is a suspect professional ‘virtue,’ in this account, always threatening to become social vice. Hence the widespread disinclination to acknowledge anything virtuous about it, even when employed bravely in defense of pure aggression. Though no pacifist, Judith Shklar succumbs to this temptation when she asserts, without argument, that “a brave soldier is simply a less repulsive character than a cowardly one.”⁶

After all, to display one’s martial honor—even protection of innocents—the soldier must first engage in a fight. This creates incentives to seek out opportunities for a fight, to misread political situations as requiring one, where the underlying dispute could, with greater patience and imaginative negotiation, be resolved in other ways. “Warrior’s honor,” writes Ignatieff, “implied an idea of war as a moral theater in which one displayed one’s manly virtues in public.”⁷

Yet it would clearly be perverse “in analyzing 20th century wars, to say that soldiers are placed on the battlefield for the purpose of exhibiting chivalry,” as a philosopher rightly notes.⁸ Chivalry may be an “internal good,” inherent in excellent soldiering, but war-making itself—though a precondition for most chivalry—is not. Whether war is justified at a given time and place must be determined by whether it is in the common good. Generally, it is not.

Thus, even if martial honor restrains certain kinds of violence, as its defenders emphasize, it assumes that other kinds are inescapable. In some situations, that assumption will be unwarranted, and the incentives generated by martial honor—when central to professional self-understanding—weaken the inclination to question that assumption. This is the germ of truth in the suggestion that any conception of martial honor is necessarily “militaristic,”⁹ a view that dates at least from the Renaissance.¹⁰

In contrast, others believe that the danger of militarism can be held in check, in part simply through encouraging awareness of it, by both soldiers and the general public. Professional soldiers harbor a latent pessimism about the possibility of an end to war, apart from their incentives to think this way.¹¹ But their very disposition in this regard provides an “insurance policy” by which peace-loving citizens “precommit”¹² themselves against the countervailing dangers of wishful thinking, of exaggerated hopes for a world in which all conflicts can be resolved nonviolently.

Even as we pay our statesmen and diplomats to negotiate and plan for the best, we hire professional soldiers to prepare for the worst. We do this in the understanding that their very preparation makes us less likely ultimately to need their services. In this respect, soldiers resemble lawyers (particularly divorce lawyers, perhaps), who sell us ‘insurance’ against our frequent, powerful inclinations to behave irrationally in discounting the future (and what we will then need), particularly at times of great emotional turmoil.¹³

An Aristotelian Defense of Martial Honor

Restraint in combat, on this second view, owes its origins and continuing efficacy primarily to virtues internal to the soldier’s calling, virtues largely distinct from, even sometimes at odds with, the common morality of civilian society. This view has a long history. According to Aristotle, particular vocations require people of suitable temperament and disposition. This is partly a matter of self-selection. After all, the armed forces tend to attract the sort of people who find congenial a life largely organized around the giving and taking of orders.¹⁴ But the dedicated exercise of a vocation cultivates within its conscientious practitioners, and elicits from them, the virtues peculiar to it.

This process of habituation must not be mindless or uncritical, of course, stresses a Naval Academy professor.¹⁵ Properly understood, such “earnest pretense is the royal road to sincere faith.”¹⁶ This applies to human experience of combat, which “involves not merely an attempt to defeat an opponent,” writes a scholar of ancient Greek warfare, “but an attempt to project a certain image of oneself.”¹⁷ The image tends, over time, to become reality insofar as one seeks psychological coherence and, in this sense, personal integrity. This is a goal toward which most people naturally strive, according to psychologists of cognitive dissonance.

The individual is free to choose, of course, whether or not to seek membership in his country’s officer corps. But he is not free to decide what it means to be a professional soldier, much less an excellent one. The meaning of meritorious soldiering is determined by the practices and traditions of the professional community he joins. These will gradually change over time, in light of discussion among its leading members (and external pressure, to some degree).

Martial Honor as an Evolving Social Practice

In fact, “a capacity for self-reflection and self-criticism is part of what distinguishes professions from games and other sorts of rule-governed practices.”¹⁸ If present practices, then, are sustained by historical traditions, these traditions are living and evolving. And “a living tradition,” as MacIntyre puts it, “is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.”¹⁹ Members may therefore differ at least as much in the understanding of what the practice is, what it currently entails (when properly understood), as over how its practice should be reformed. Such differences of opinion are not a recent aberration, an infection of modernity. Medieval knights, for instance, regularly argued among themselves over whether a given warrior’s conduct had breached their code of honor and was therefore deserving of shame.²⁰

The demands of martial honor that governed ancient Greece were very different from those of contemporary officers anywhere, almost to the point of incomprehensibility.²¹ Disagreement of this sort is entirely consistent with the fact that standards of excellence established by professional practices are generally stable in their core at any given moment, and often for long periods. There is widespread agreement in the U.S. Army today, for instance, about what “proportionality” in use of force requires, as applied to troops facing specific factual situations with particular weapons.²²

Martial honor might be best understood, on more careful analysis, not as a single virtue but a constellation of independent and nonspecific virtues (i.e., generally conducive to human flourishing) insofar as they happen to bear on military conduct. Courage may be the preeminent virtue of the soldier, but it is pertinent to many other activities, after all, such as intellectual life. The soldier’s practical wisdom serves to mediate among all such virtues,²³ telling him which of them should primarily govern his action in a particular situation and what it requires of him.

Despite these conceptual qualifications, I shall nevertheless speak of martial honor in the singular, as the coherent amalgam of virtues peculiarly pertinent to the vocation of soldiering. This simplification is partly for reasons of convenience. But it is also noteworthy that the term itself—martial honor—is routinely employed in the ordinary language of officers throughout the world. An approach to professional ethics that casts itself as an interpretation of ordinary moral experience, as an exercise in moral phenomenology, would do well to stay close to the terms of soldiers’ self-understanding.

Martial honor should be distinguished, also in the interests of conceptual precision, from mere “skill” in the arts of war...