Thanks for the response. The case for pardons is based on a number of factors. The Nuremberg and indeed principles of war as per UN conventions were not applicable in 1902. Although modern day international law (post Nuremberg) provide clear direction to military commander about military members following illegal orders, the same could not be said of the state of military law that existed in 1901. The Hague Convention of 1899, that contained provisions about the treatment of prisoners did not apply to the Boer War. At the time of the shootings by Morant, Handcock and Witton, the Boer republics were not signatories to the Hague convention.
In an authoritative study of crimes committed by the British Army during the Boer war, Miller, an associate professor of history stated:
[i]‘Britain altered its notions of acceptable conduct in war by joining the Geneva Convention in 1865 and submitting to further changes in international law agreed to at Brussels in 1874 and the Hague in 1899. (Stephen M. Miller, Duty or Crime? Defining Acceptable Behaviour in the British Army in South Africa, 1899–1902, Journal of British Studies 49 (April 2010): 314 - 315)
[i]The Hague Convention, which Britain signed just two months before the outbreak of hostilities with the Transvaal and the Orange Free State, is particularly relevant to evaluating British conduct in the South African War, even though the South African republics were not participants. The invitation list put together by the Great Powers at Russia’s prompting omitted their inclusion over fear of British objections. Since the laws that emerged from the Hague talks were only binding between signatories of the convention, Britain did not legally have to abide by them in the war’.[
The situation was complicated by the employment of paid volunteers (like Morant et al) who were not skilled in military tactics, rules and customs of war, the legality and jthe jurisdiction of the Hague convention. Colonial officers, including the accused signed attestation documents pledging loyal service to the King and obedience to their superiors. The existence of attestation documents is another piece of new primary evidence not previously considered. The lack of understanding of military law and customs that existed in 1901 by Morant, Handcock and Witton is aptly summarised by the officers who sat in judgment.
The trial officers were present during all the proceedings and were best equipped to judge the evidence before them. The recommendations for mercy included the following reference to Morant:
[i]‘The difficult position in which he was suddenly placed, with no previous military experience and no one of experience to consult, and
Want of previous military experience and complete ignorance of military law and military procedure[/i]
Similar recommendations were made for Witton and Handcock. These findings are significant and call into question opinions that illegal orders should have been disobeyed by the accused and whether they held a bona fide belief that the orders issued were in fact legal. Military law at the time was particularly harsh of professional soldiers and colonial volunteers) who disobeyed orders of their superior officer, maximum penalty death.
Other points, Morant was an Australian, an immigrant from England. In 1901, Australian colonies/States were open to anyone, particularly from the mother country. Remember Australia did not have sophisicated residency / immigration laws and procedures of the modern day. Morant had been working in Australia since the early 1860s.
The secrecy of the trials ect was an attempt to exclude Australian interference and contradicted an earlier assurance given by Kitchener to the Aust PM that the arrest and trial of Australians would be notified. The denial of the accused’s appeal rights as per the military and common law of 1902 was disgraceful and the executions carried out to prevent appeal to the Crown. George Witton refers to this in his book and counsel, Major Thomas protested the treatment of his clients in his writings between 1902 and as late as 1930.
The Manual of Military Law 1898 contained various provisions about the rights of an accused. Frankly, even by the standards of 1902, one’s day’s notice of trial and to consult Major Thoams (who represented 6 accused) was a disgrace and caused the accused to suffer a significant injustice, particularly as Thomas was not an experienced trial advocate (military or civilian) and the prosecution had almost three months to prepare its case.
I could continue but will comment on the reference to the Aust war memorial entries about the accused. The AWM does not support a call for an open and independent judicial inquiry. Its position is final and it relies on the writings of a few historians who have claimed ‘ownership’ of what they say is the ‘truth’ of the Boer war and the actions of troops like Morant. Organisations like the AWM attempt to hold the high ground and resent any attempt to challenge their version of their research. I say this, the Morant case will continue to attract challenges to those who claim the British got it right and justice was served. The supporters of the British case said evidence to shoot prisoners did not exist. In 2010, I produced such evidence and yet the British government refuses to convene an inquiry to consider all evidence about the case, for and against pardons and the quashing of the convictions. Perhaps it fears public exposure and independent review by someone not of government agends or bias. This case will not be settled until such an inquiry is convened, a request that Major Thomas asked for immediately following the executions.
