When Military Obedience and Restrictions on War Powers Collide

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When Military Obedience and Restrictions on War Powers Collide

A Case For Reform

9781035332335 Edward Elgar Publishing
Ellen Nohle, Legal Advisor, Diplomat and J.S.D. graduate of Yale Law School, US
Publication Date: April 2024 ISBN: 978 1 03533 233 5 Extent: c 276 pp
This provocative book explores the precarious conflict between the legal restrictions on governments’ power to take military action and the legal liability of soldiers to execute military orders. Adopting a multidisciplinary approach, this insightful book challenges the current distribution of trust between military decision-makers and agents.

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This provocative book explores the precarious conflict between the legal restrictions on governments’ power to take military action and the legal liability of soldiers to execute military orders.

Adopting a multidisciplinary approach, this insightful book challenges the current distribution of trust between military decision-makers and agents, and how the law of military obedience effectively extends the powers of officials beyond the limits of international and constitutional law. In order to mitigate the potentially devastating consequences of the abuse of military authority, the book proposes an adjustment of the legal and social role of soldiers, enabling them to disobey transgressive orders. By placing soldiers at the centre of reform, it affirms the human dignity and moral agency of servicemembers, granting them the tools they need to protect themselves against the moral injuries they could potentially suffer as a result of obeying unlawful commands.

Students and scholars of constitutional law, human rights, humanitarian law, military law and public international law will find this book to be an invaluable resource. It will also be beneficial for policymakers, think-tanks and other agents of change who are concerned about the abuse of military authority.
Critical Acclaim
‘When the legal constraints on governments’ resort to war fail, what follows for the soldiers ordered to fight? In this important new book, Ellen Nohle reframes how we ought to think about the stakes associated with governments’ freedom of military action, sheds light on the different kinds of rules that are implicated by war powers questions, and challenges longstanding presumptions regarding the nexus of human dignity, law, democracy, the military, and war. Emphasizing the public and individual costs of weaknesses in the current frameworks constraining military action, Nohle advances a compelling argument for reforms that would take seriously the agency and dignity of soldiers on matters relating to the resort to force. This is a rigorous, provocative, and humane book. It demands attention.’
– Tom Dannenbaum, Tufts University, US

‘When the legal constraints on governments’ resort to war fail, what follows for the soldiers ordered to fight? In this important new book, Ellen Nohle reframes how we ought to think about the stakes associated with governments’ freedom of military action, sheds light on the different kinds of rules that are implicated by war powers questions, and challenges longstanding presumptions regarding the nexus of human dignity, law, democracy, the military, and war. Emphasizing the public and individual costs of weaknesses in the current frameworks constraining military action, Nohle advances a compelling argument for reforms that would take seriously the agency and dignity of soldiers on matters relating to the resort to force. This is a rigorous, provocative, and humane book. It demands attention.’
– Tom Dannenbaum, Tufts University, US

‘This book confronts a profound legal dilemma: As the law exists today, a soldier’s legal duty to obey military orders can come into conflict with international and domestic law restrictions on waging war, putting the soldier in an impossible position. No one has addressed this profound dilemma as clearly and effectively as Ellen Nohle does here. This book is a must-read for anyone interested in the law governing war.’
– Oona Hathaway, Yale Law School, US
Contents
Contents:
1 Introduction (mind the gap): limited war powers and
military obedience
PART I THE DISCONNECT BETWEEN THE
SOLDIER’S AND THE GOVERNMENT’S
LEGAL FRAMEWORKS
2 Limited government and limited war
3 The soldier’s duty to obey
4 Is the disconnect justified?
PART II BRIDGING THE GAP BETWEEN THE
LAW OF MILITARY OBEDIENCE AND
RESTRICTIONS ON WAR POWERS
5 The case for a legal right to disobey
6 Elements of the right to disobey
7 Immunity for compliance or disobedience?
PART III BRIDGING THE GAP BETWEEN
PERCEPTIONS OF DUTY AND LEGAL DUTY TO OBEY
8 The social-psychological pressure to comply with orders
9 Strengthening the salience of the legal force constraints
10 Conclusion: from restricted (war) powers to restricted
duty to obey
Index
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