New evidence suggests Australian Boer War soldiers were innocent

[AdamG]

MORE than 109 years after they were convicted of murdering Boer prisoners, the descendants of Harry "Breaker" Morant, Peter Handcock and George Witton have urged Attorney-General Robert McClelland to hold a judicial inquiry into their trial and sentencing by British military authorities.

Their case has been bolstered by legal advice from leading barrister David Denton SC, who argues the men were denied due process and that serious errors of law mean their convictions were not legally sound.

The relatives hope an inquiry will reveal the truth about the episode, lead to pardons for the three Australian soldiers and bring closure to their families after decades of grief and shame.

http://www.theaustralian.com.au/busi...-1226103792708

[jmm99]

for those interested in Breaker Morant - both fiction and fact:

Breaker Morant (film)

Court martial of Breaker Morant

Breaker Morant (link drops down to discussion of the "Scapegoats" book by George Witton, the only accused not executed)

Lieut. George Witton, Scapegoats of the Empire: The True Story of Breaker Morant's Bushveldt Carbineers (1907 -A Project Gutenberg of Australia eBook):

I have not attempted to defend the doings of the ill-starred Bushveldt Carbineers, or the policy of those who employed them.

The methods of dealing with prisoners, which have been solely attributed to that corps, were in active operation before the so-called "Australian" officers went to the Spelonken district--a fact which the English press, and a large section of the Australian press, systematically ignored.

When I arrived in Australia, I found that the grossest misrepresentations had been made by those primarily responsible for the manner of the warfare which "staggered humanity," and that they had succeeded in linking the name of Australia with the most tragic and odious incidents connected with a mercenary and inglorious war.

BTW: the trial transcript went missing.

If one is "defense-oriented" re: courts-martial for homicides during combat (self-defense is still a homocide, albeit justified) - e.g., as in "Defend Our Marines" - Witton's book and (presumably) David Denton's current plea will strike a chord or more.

Regards

Mike

[JMA]

for those interested in Breaker Morant - both fiction and fact:

Breaker Morant (film)

Court martial of Breaker Morant

Breaker Morant (link drops down to discussion of the "Scapegoats" book by George Witton, the only accused not executed)

Lieut. George Witton, Scapegoats of the Empire: The True Story of Breaker Morant's Bushveldt Carbineers (1907 -A Project Gutenberg of Australia eBook):



BTW: the trial transcript went missing.

If one is "defense-oriented" re: courts-martial for homicides during combat (self-defense is still a homocide, albeit justified) - e.g., as in "Defend Our Marines" - Witton's book and (presumably) David Denton's current plea will strike a chord or more.

Regards

Mike

Two points.

First the pardon:

Britain rejects pardon for executed solider Breaker Morant

The legal argument for the pardon.

And second, is there a US equivalent of Rule 303?


Note: Of interest to you will be this can-of-worms being opened:

Kenyans get go-ahead for UK 'Mau Mau' claim

[jmm99]

The latest "military commissions" (to try "war crimes" committed by detainees) by US field grade officers seem to have been convened under Rule 45-70 or Rule 30-40. Rule 30-06 kicked CA power for military commissions upstairs - and so it remains today.

And, yes, Morant did no justice to a potentially good defense by his smarta$$ remark (Witton pdf p.64):

"Was your court at the trial of Visser constituted like this?" asked the President, "and did you observe paragraph ---- of ---- section of the King's Regulations?" "Was it like this!" fiercely answered Morant. "No; it was not quite so handsome. As to rules and sections, we had no Red Book, and knew nothing about them. We were out fighting the Boers, not sitting comfortably behind barb-wire entanglements; we got them and shot them under Rule 303."

Morant actually convened and tried Visser before a summary court martial, which found Visser guilty of war crimes, etc.

"Tony" Waller fared better in his court-martial in the same year - and he did not bother with a summary military commision under Rule 30-40.

Sorry, I don't do Mau-Maus - you'll have to activate Frank Kitson to do justice to that era.

Regards

Mike

[JMA]

And, yes, Morant did no justice to a potentially good defense by his smarta$$ remark (Witton pdf p.64):

RULE 303 is best explained by this from the Urban Dictionary

At one point Morant was asked by the court under what rule or right did he kill the men and he answered that he shot them under rule 303 meaning the the Lee Enfield .303 rifle issued at the time. His meaning being that he shot them beacuse he had the means to do so at hand and that was all the authority he needed.

Sorry, I don't do Mau-Maus - you'll have to activate Frank Kitson to do justice to that era.

Regards

Mike

This Mau Mau business is interesting as the four (with probably many more to follow if the case is successful) are suing the British government for allegedly being tortured by the colonial police/military during the Mau Mau troubles of the 1950s. 50 odd years ago. Given the British colonial past and the number of countries in their empire this could herald the opening of the flood gates. Other countries (France, Portugal, Japan and the US etc etc) could also be vulnerable at some point.

[jmm99]

sounds good on a blog - nice soundbite, but one that falls into the lap of those who class the military (particularly field operators) as knuckle-draggers who prefer to operate outside the law.

In the early 1800s, field commanders (US and Brit, since their military law tended to parallel) had power to investigate and execute "war criminals" (usually irregular combatants) without convening even a field "military commision" (US usage) or "summary court martial" (Brit usage). MAJ Weller did just that in the Samar case.

Starting with our Mexican War, field military commissions became more and more the US norm - which continued through our Civil War and Reconstruction (literally 1000s of cases, with a relatively high number of acquitals).

They also caught on in British military law as some form of "special courts". You should find in your South African reports, this case, Tilinko v. Attorney General for Natal (95 Law Times, N.S., 854, 1907), where, the Earl of Halsbury expressed this opinion:

"If there is war, there is the right to repel force by force but it is found convenient and decorous, from time to time, to authorize what are called 'courts' to administer punishment, and to restrain by acts of repression the violence that is committed in time of war, instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved."

MAJ Thomas argued both rights of the field commander (Witton pdf pp.73-74):

He pursues these Boers, which ends in the capture of Visser, whom he finds wearing clothing the property of the late Captain Hunt. I go so far as saying that under the circumstances Mr. Morant would have been perfectly justified in shooting Visser straight away. The fact of wearing British uniform is altogether against the customs of war, and I know that this man Visser was present when Captain Hunt was killed from the evidence.

At the request apparently, of Mr. Picton, it was decided to give Visser a court-martial--such a court-martial as is frequently held in the field, under the circumstances in which this was held. Informal, no doubt; how can we expect formality in the field, in the immediate vicinity of the enemy, and when Visser himself admitted that the Boers had promised to recapture him?

All this is provided for in the Manual of Military Law. We claim that substantial justice was done, and I submit that there is nothing whatever to satisfy the court that Mr. Morant ordered a wilful or felonious murder. On the contrary, under the Rules of War, I consider that he was quite justified in confirming the sentence. The evidence of Captain Taylor shows that these men were the offshoots of commandoes and mere outlaws, who went about looting from Kaffirs, and, what I say now I wish to apply to all the prisoners. They were dealing in that particular district with a party of irresponsible outlaws, under no recognised control, sending in threats of torture, &c. In July, 1901, trains were wickedly wrecked, and numbers of men wounded. Such men forfeit all rights to be treated as prisoners of war. When irregulars are sent out to deal with an enemy of this kind, marauders and train wreckers, the officers should be allowed a wide discretion in dealing with them. If they err technically, or even make serious mistakes, they must be upheld.

The military commission has continued in US military law to the present; but discretion to convene them passed before WWI from field commanders to flag officers, then to theatre commanders and higher.

Binyam Mohamed's US torture case died earlier this year, SCOTUS denies Binyam Mohamed review. It is highly unlikely that a civil action of that kind, recent or ancient, will be successful in the US courts.

Regards

Mike