Missing in Action: The Human Eye
Constitutionalism Across Borders in the Struggle Against Terrorism 283-304 (Edward Elgar Publishers, 2016)
22 Pages Posted: 29 Dec 2014 Last revised: 21 Sep 2016
Date Written: December 28, 2014
The growing involvement of lawyers in approving military operations, coupled with the disappearance of the soldier’s unmediated gaze of the battlefield, increase the probability for the execution of a certain kind of manifestly unlawful orders. Two different versions of the criminal defense that requires soldiers to disregard manifestly unlawful orders are conflated in judgments and scholarly writings. According to the first version, when the order’s illegality is obvious, the soldier should refuse to obey. According to the second version, when the order is morally repulsive, the soldier should refuse to obey. The history of military atrocities shows that unmediated eye contact plays a crucial role in breaking soldiers’ disassociation from potential victims and thus creating an emotional reaction of repulsion towards certain orders. Yet, in the modern battlefield, more and more of the killings are carried out without the solider seeing the battlefield with his own eyes, without him experiencing the battlefield. Rather, the killings are done by aerial vehicles operated from afar. In addition, the rise of the reign of lawyers in approving the legality of military operations makes every order executed legal on the face of it and thus further reduces any inclination of the combatant to disobey, and for the military to adopt solely the first version of the criminal defense. Together, these two developments increase the potential for the feeling of repulsion to remain dormant in soldiers, making the second version obsolete and thus increasing the probability for the execution of certain manifestly unlawful orders that in the past might have been disobeyed.
Keywords: International Humanitarian Law, Obedience to Superior Orders, Manifestly Unlawful Order, International Criminal Law
Suggested Citation: Suggested Citation