Vol. 9 No. 10 (October 1999) pp. 460-461.
WAR CRIMES LAW COMES OF AGE: ESSAYS by Theodor Meron. Oxford: Clarendon Press, 1998. 336pp. Cloth $65.00.
OBEYING ORDERS: ATROCITY, MILITARY DISCIPLINE AND THE LAW OF WAR by Mark J. Osiel. New Brunswick: Transaction Publishers, 1999. 398 pp. Cloth $34.95.
Reviewed by Conway W. Henderson, Department of Political Science, University of South Carolina-Spartanburg.
Both Theodor Meron's and Mark Osiel's books address one of the greatest paradoxes of humankind: the use of organized violence on a mass scale but under rules that, if followed, will make the killing process more humane. If we are capable of using restrained violence why not get along and refrain from violence altogether? Although social scientists are curious as to why humans are the only animals on the planet to systematically kill each other, international law professors, including Meron and Osiel, focus on the rules of warfare, or humanitarian law.
Meron's WAR CRIMES LAW COMES OF AGE is a compilation of seventeen essays written over the last decade with an epilogue on the proposed International Criminal Court and an annex containing some of the articles of the Rome Statute regarding this court. Evidently, Meron expects his reader to perceive the volutionary nature of humanitarian law despite a lack of planned coherence among the essays. One can only gather a vague sense of norms and rules emerging from the Medieval Age that begin to crystallize by the nineteenth century into codes, which, in turn, became available in the late twentieth century for use by multinational tribunals.
The reader has to work hard, however, to draw lines to the dots and find Meron's picture of an evolution. Basically, the essays are discordant as a group because of such varied subject matter and depth of scholarship. The subjects of the various essays range from Shakespeare's version of Henry V's understanding of the laws of war to lessons from the Balkans, including rape as a crime and the important development of international tribunals. Almost half of the essays deal with various aspects of the atrocities related to the Balkan ethnic warfare of the mid-1990s, a presentation begging to be integrated into a single piece, whether of essay or book length. Divided into different essays, Meron's thought process about Balkan legal developments appears ramshackle. The best scholarship by Meron understandably involves the more settled subjects that he has written about in prestigious law journals, such as the AMERICAN JOURNAL OF INTERNATIONAL LAW.
It is not entirely clear why Meron chose to compile these essays into book form when the essays are easily accessible from the original sources. Admittedly, distinguished scholars in other fields take this step, but it would seem more prudent to
Page 461 begins here
use valuable publication space for new work.
Although Meron attempts to trace the evolution of humanitarian law and its move into the court rooms of international tribunals, Osiel's OBEYING ORDERS goes into the field to investigate the difficulties involved when soldiers try to obey the rules of war. Osiel's work identifies many appropriate issues: How can law function under the stress of war? When is an order illegal? How can ordinary soldiers judge the appropriateness of their orders, especially when military performance keys on obedience? Under what conditions does "military necessity" allow exceptions? These and other issues Osiel cannot resolve, but he does offer informed analysis.
Much of Osiel's analysis revolves around the concept of "manifest illegality." Despite the complexity of complying with humanitarian law during the stress of war, the author believes some acts in war are decidedly transparent immoralities that every soldier would know are wrong, such as torture or murder. Osiel is particularly adamant that mass-kill atrocities such as My Lai are avoidable. We have to wonder though how he would respond to the recent revelation that hundreds of South Korean refugees were killed in 1950 when they were blown up with the Tuksong-dong Bridge. After trying hard to keep the fleeing civilians off the bridge, Major-General Hobart R. Gay felt compelled to destroy the bridge to slow down the advancing North Korean Army. The American forces were in a desperate retreat. Was this mass killing a manifestly illegal act of atrocity or did the General correctly employ military necessity?
One of Osiel's strengths is that he is genuinely sympathetic to the soldier and recognizes that, in the heat of battle, it is hard to bear in mind all the laws of war. In addition to being a law school professor, the author's sociological background allows him to look beyond the legal approach of defining clear law and then expecting strict adherence to it. His purpose is not to convict more military people of war crimes but to influence soldiers' behavior before they enter the battlefield. He recommends more training with realistic battlefield scenarios, the inculcation of officers with military professionalism and ethics, and the placing of JAG officers inclose proximity to fighting.
Perhaps the author attempts to do too much. Osiel turns his central concern of obeying orders under stress into a multifaceted investigation of so many issues and questions that the author's analysis tends to bog down endangering the major thrust of his work. This problem is abetted by a stilted writing style. His writing also contains one glaring crudity; the author frequently begins sentences with "But," a practice no writing authority accepts.We have then two books worthy of shelf space for scholars interested in the law of war, but neither book is indispensable. Meron's essays are already available, and Osiel would have served us better with a morestraightforward handling of his project in 200 pages instead of a serpentine exploration of every nook and cranny of his subject.