Obeying Orders

by Mark Osiel

A soldier obeys illegal orders, thinking them lawful. When should we excuse his misconduct, as based in reasonable error? How can courts convincingly convict his superior when, after Nuremberg, criminal orders are invariably given by winks and nods, through hints and insinuations? Mark J. Osiel answers these questions in light of new learning about the sources of atrocity and combat cohesion, as well as changes in methods of warfare and the nature of military conflict. He seeks to "civilianize" military law while building on soldiers' own internal ideals of professional virtuousness. He rehabilitates the ancient ideal of martial honor, reinterpreting it in light of new conditions, implementing it less by threat of prosecution than by reflective habituation through realistic training in which legal counsel plays an enlarged role.