OBEYING ORDERS - ATROCITY, MILITARY DISCIPLINE, AND THE LAW OF WAR

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 procedura l irregularity, its moral gravity, and the clarity of the legal prohib ition it violates. These criteria, however, often conflict with one an other, are over- and underinclusive, and vulnerable to frequent change s in methods of warfare. Though sources of atrocity are shown to be hi ghly variable, these variations display recurrent patterns, indicating corresponding legal norms best suited to prevention. There are also d iscernible connections, that the law can better exploit, between what makes men willing to fight ethically and what makes them willing to fi ght 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 lo west levels, efficacy in combat similarly depends more on tactical ima gination than immediate, letter-perfect adherence to orders. To foster such practical judgment in the field, military law should rely more o n general standards than the bright-line rules it has favored in this area. A stringent duty to disobey all unlawful orders, coupled to a st andard-like excuse for reasonable errors, would foster greater disobed ience to criminal orders. It would encourage a more fine-grained atten tiveness to soldiers' actual situations. It would thereby enable many to identify a superior's order as unlawful, under the circumstances, i n situations where unlawfulness may not be immediately and facially ob vious 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'' milita ry 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.