Ed. Note: In November, 2023, Law and History Review published an article by Professors Ziv Bohrer and Danny Orbach, “‘Let the Commander Respond’: The Paradox of Obedience in the Imperial Japanese Armed Forces,” Law and History Review 41, no. 4 (Nov., 2023), 817-839. Professors Bohrer and Orbach graciously took up The Docket on our offer of having a brief discussion about their work.
The Docket [TD]: Ziv and Danny—thank you for taking the time to correspond with us about your collaboration and work. Let’s start with how you became interested in the overlapping worlds of law and the military. It seems like both of you have been working on different aspects for a while. Where did this article come from?
Ziv Bohrer [ZB]: Danny has long been immersed in the study of military history, particularly the intricacies of obedience, disobedience, violence, and criminality within German, Japanese and other military cultures. My own research has led me to explore the concept of the ‘superior orders defense’ over the years, starting from my very first academic paper two decades ago while I was still in the military. I pursued this topic through my Ph.D. thesis and various subsequent works. Additionally, I have spent nearly a decade delving into the history of the laws of war and international criminal law. In 2016, some of my research on this subject was published in Law and History Review.
I must attribute the credit for bringing us together for this research to Danny. A few months prior to our collaboration on this project, he reached out to me with a question about the superior orders defense. At that time, we were merely acquaintances, connected by a mutual friend. However, that brief conversation sowed the seeds of friendship, nurtured by Danny’s exceptional openness, inquisitiveness, and eagerness for knowledge. Danny even went the extra mile, commuting from Jerusalem to Bar-Ilan University once a week for an entire semester to attend my lectures. This friendship laid the foundation for our joint research. Against this backdrop, Danny approached me with the idea of investigating an intriguing phenomenon in Japanese military culture, which we have termed ‘the paradox of obedience,’ and suggested that we collaborate. I eagerly agreed.
Danny Orbach [DO]: For me, collaborating with a co-author from a different discipline, international law, and embarking on a journey to learn this new field from scratch was a truly enlightening experience. It rekindled the excitement I felt when I first studied history during my college years. Like Ziv, I have a deep interest in the history and dynamics of military atrocities, especially those that result from a process of misinterpreting ambiguous orders within the military hierarchy. While researching the Kafr Kasm Massacre (1956), a notorious atrocity in Israeli military history, I came across an old article written by Ziv on the concept of ‘manifestly illegal orders.’ Given my primary focus on Japanese military history, I began to ponder whether there was an equivalent concept of ‘manifestly illegal orders’ in the Imperial Japanese Army. I wanted to understand how Japanese soldiers responded when given orders to commit atrocities that not only violated international law but also contradicted Japanese military regulations. Why did officers in POW camps systematically abuse prisoners despite explicit orders from the Army Ministry to the contrary? Why did Japanese soldiers obey orders to shoot their own prime minister? I realized that these questions necessitated a dual perspective: the history of Japanese military culture and comparative legal history. This realization laid the foundation for our collaboration. As we unravelled the legal aspects of these questions, Ziv became not just my co-author but also my mentor.
TD: One of the distinctive things about this article is the extent to which it incorporates both legal and historical expertise. Your use of Japanese military sources is particularly compelling. Can you discuss how you went about conducting the research for this article?
ZB: Our interdisciplinary research was a remarkable experience, and by far, my most gratifying experience of this nature to date. It was facilitated by the fact that I am both a legal scholar and a historian. We were able to divide the labor effectively: I provided the essential legal knowledge and conducted the necessary research on the superior orders defense, exploring different approaches to the subject, weighing their advantages and disadvantages, and delving into the relevant legal terminology. Additionally, I conducted research on the general history of this legal defense. Danny made a substantial contribution by uncovering and researching the pertinent Japanese military sources. However, the primary factor contributing to our success was Danny’s exceptional qualities as a researcher and as a person.
DO: As a historian, transitioning to legal history was a challenging endeavor. Historians are primarily concerned with time, focusing on processes of transition, contingencies, actors’ intentions, and specific events that mark turning points. Legal scholars, on the other hand, adopt a more comprehensive and structured approach. Many military historians, me included, are also practically-minded, and thus interested more in actions than in words. Studying the history of law with Ziv taught me a valuable lesson about the significance of verbal nuances, formulations, and language in general, particularly in connection to real events. I realized that linguistic nuances matter greatly. Our research revealed, for example, how the preamble to the Japanese military code of behavior underwent significant changes, with profound implications, as new editions introduced the requirement for soldiers to obey “legitimate orders” instead of “only legitimate orders” or just “orders.” This nuance reflected a substantially different perspective on military obedience and signalled intense debates within the Japanese military establishment, as well as broader social change in Japanese society. Our collaborative research emphasized the importance of the precise use of words.
TD: Throughout the world, we see a great deal of discussion and consternation about the relationship between the military and the civilian rule of law. At one end, we see military authority functioning as civilian law, and on the other we see pitched debates about separation of powers. Where do you see your research adding to these sorts of discussions about the relationship between the military and the state in the contemporary world?
ZB: In the context of military culture and hierarchy, a fundamental tension exists between the necessity for obedience and the need to grant subordinates discretion. My previous research has shown that there is no single, ideal “middle of the road” solution, and our current research demonstrates that an extreme solution, in practice, fares even worse, ultimately undermining its own stated objectives. Life presents numerous issues for which there is no perfect legal solution, and yet some solutions are exceptionally detrimental. Our findings also suggest that the prevention of atrocities relies heavily on the degree to which a commitment to international humanitarian law is embedded in military culture.
DO: I firmly believe that the modern battlefield presents both unprecedented opportunities for command and control, including legal oversight, and complex challenges for soldiers who must grapple with dilemmas related to principles such as distinction and proportionality, along with other critical issues governed by IHL. As illustrated by Daphne Richemond-Barak’s recent research, the IHL regulations concerning subterranean warfare, a pertinent aspect in conflicts like the ongoing Israel-Hamas War, are still in early stages of development.
In such a context, the precise formulation of orders becomes of paramount importance. In my prior work, particularly in collaboration with another co-author (Yagil Henkin), I explored the link between military deception and unintentional military atrocities. Ambiguous orders in a complex battlefield can lead to grievous crimes that deviate from the original intentions of the commanders issuing those orders. In our contribution to LHR, Ziv and I highlighted yet another example of a legal framework that resulted in adverse and calamitous consequences. Our study of the Imperial Army’s ‘paradox of obedience’ revealed how a legal structure designed to promote unwavering obedience paradoxically achieved the opposite. Reflecting on the potential adverse consequences, whether legal or otherwise, is a lesson that holds tremendous relevance today, more than ever
TD: Thank you to you both for your time and this fascinating article!