LAW AND THEATER
“BREAKER MORANT” PART III (TREATMENT OF P.O.W.S)
This is Part III of my three-part examination of Kenneth G. Ross’s play “Breaker Morant.” In Part I, I outlined the historical background of the trial and execution of Harry “Breaker” Morant and Peter Handcock during the Second Boer War. In Part II, I began my examination of the legal issues raised in the play, focusing on the irregularities in the three courts martial of Morant and his fellow defendants. This post focuses on the legal issues surrounding the execution of prisoners of war during the Boer War.
Treatment of Prisoners of War
A major issue discussed in the play (and in the movie) is the treatment of P.O.W.s in a guerilla war. What were the rules governing P.O.W.s at the time of the Boer War? Ultimately, the three defendants were convicted for executing Boer prisoners. Their main defense was that they were following orders. Is this a viable defense? Were the orders from Lord Kitchener to shoot any Boer prisoners caught wearing British khaki legitimate (if such orders actually existed)? Likewise, were the orders given by Hunt and Taylor to shoot all prisoners legitimate (if such orders actually existed)?
The treatment of prisoners of war at the time of the Morant Court Martial was set out in general terms by two international treaties: (1) The Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864 (the First Geneva Convention); and (2) The Convention with Respect to the Laws and Customs of War on Land (part of the Hague Convention of 1899). Although the United Kingdom, the Orange Free State, and the Transvaal Republic all ratified the First Geneva Convention (in 1865, 1897, and 1896, respectively), only the United Kingdom ratified the Hague Convention (in 1900).
The First Geneva Convention
The First Geneva Convention focuses primarily on the treatment of various categories of non-combatants. These include medical personnel, religious personnel, civilians in the combat zone, and soldiers who are hors de combat due to illness, injury, or captivity. Of particular interest for this discussion is Article 6:
Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for.
Commanders-in-Chief may hand over immediately to the enemy outposts enemy combatants wounded during an engagement, when circumstances allow and subject to the agreement of both parties.
Those who, after their recovery, are recognized as being unfit for further service, shall be repatriated.
The others may likewise be sent back, on condition that they shall not again, for the duration of hostilities, take up arms.
Evacuation parties, and the personnel conducting them, shall be considered as being absolutely neutral.
Although the First Geneva Convention is very short (10 articles, most of which are about the same length as Article 6, if not shorter), the message is clear. All of these categories of non-combatants are to be treated humanely. The implication is that prisoners of war are not subject to summary execution, especially wounded prisoners.
The Hague Convention of 1899
Like the First Geneva Convention, the Hague Convention with Respect to the Laws and Customs of War on Land is relatively short (5 articles). The major provision is found in Article 1, which states that each of the contracting parties “shall issue instructions to their armed forces,” conforming to the “Regulations Respecting the Laws and Customs of War on Land” annexed to the Convention.
Several of the Regulations deal with the issue of P.O.W.s. For example, Chapter II (Articles 4-20) is entitled “On Prisoners of War.” One of the provisions of Article 4 echoes the First Geneva Convention, stating that prisoners of war “must be humanely treated.” Article 7 states, in part, “[t]he Government into whose hands prisoners of war have fallen is bound to maintain them.” Article 21 formally incorporates the First Geneva Convention into the Regulations, stating “[t]he obligations of belligerents with regard to the sick and wounded are governed by the Geneva Convention of the 22nd August, 1864, subject to any modifications which may be introduced into it.” Most significantly, Article 23 places certain limitations on the actions that may be taken to “injure the enemy,” including the following prohibitions: (1) killing or wounding “treacherously” individuals belonging to the hostile nation or army; (2) killing or wounding an enemy who, “having laid down arms, or having no longer means of defence, has surrendered at discretion;” and (3) declaring that “no quarter” will be given.
While this would seem to make the case against the three defendants cut and dried, there is one other factor to take into consideration. Article 2 of the Convention (as opposed to the Regulations) states:
The provisions contained in the Regulations mentioned in Article 1 are only binding on the Contracting Powers, in case of war between two or more of them. These provisions shall cease to be binding from the time when, in a war between Contracting Powers, a non-Contracting Power joins one of the belligerents.
Thus, the fact that neither the Orange Free State nor the Transvaal Republic signed the Convention specifically exempted the British forces in South Africa from adhering to the Regulations.
So where does all of this leave us with regard to the Visser and 8 Boer cases?
Execution of Visser
There are two things that strike me about the execution of Visser. First, Visser was wounded at the time of his capture (he had been shot through both legs). Thus, although the Hague Convention might not apply to this situation, the provisions of Article 6 of the Geneva Convention do apply (everybody signed that one). Visser, as a wounded combatant, should have been “collected and cared for.” This would indicate that Morant’s order to shoot Visser was a violation of the rules of war.
Second, there is Lord Kitchener’s order to shoot all Boer prisoners caught wearing British khaki. Visser was wearing British khaki, a pair of British trousers, to be precise. Technically, therefore, he was in violation of the standing orders, and was subject to execution.
But I see a problem with Lord Kitchener’s orders (assuming, for the sake of argument, that he did actually issue them). As presented, they are somewhat vague. How much khaki merits the firing squad? Let’s take two hypothetical examples. On the one hand, let’s presume that the British capture a Boer commando in full British uniform, from pith helmet to boots. This seems to be what Kitchener’s order was guarding against: Boers masquerading as British soldiers to cause havoc within British installations or behind the lines. On the other hand, let’s presume that the British capture another Boer commando, this time wearing only a pair of British-issue socks. Technically, the Boer is in violation of Kitchener’s orders. But did Kitchener really mean that this Boer should be executed?
Visser falls between these two extremes. He wasn’t in full British uniform, but he was wearing British trousers. Was this because he was trying to impersonate a British soldier, or because he had no other pants to wear, and he preferred not to go into combat in his underwear? And would it be reasonable to expect Morant to have to interpret this order in the heat of battle?
Was Morant justified in ordering the execution of Visser? I’m still not sure. The play does not offer easy answers. And that is, perhaps, a good thing. This matter is not clear cut, even after a century. It would be too easy for the play to give us a simple answer.
Execution of the 8 Boers
It would be easy to say that Morant’s execution of the 8 Boer prisoners was on even shakier ground than his execution of Visser. After all, they had surrendered. They were at the mercy of the Bushveldt Carbineers. And Morant had taken prisoners before, in defiance of Hunt and Taylor’s alleged “no prisoners” orders. If he defied these orders once, wouldn’t it be acceptable to defy them again?
On the other hand, we need to remember that the Regulations of the Hague Convention don’t apply to this conflict. The British are not required to abide by Article 23’s prohibition on “no quarter” orders. If Hunt and Taylor did issue these orders, was it reasonable for Morant to question them?
It seems to me that, again, it comes down to a question of phrasing and interpretation. What, exactly, were the orders given to Morant by Hunt and Taylor? There is a world of difference between these two orders:
“Don’t take any prisoners.”
“Shoot all prisoners.”
From the perspective of a civilian, looking back at events in another part of the world over a century ago, it seems to me that these orders, if they existed, were questionable at best. And Morant’s selective obedience to them doesn’t help his case. But, under the circumstances of guerilla warfare, is it reasonable to expect soldiers to stop and consider all of the niceties of “civilized” war? Ultimately, I’m still torn on this issue.
Neophyte Lawyer’s Review
This is, like “Anatomy of a Murder,” a very meaty play. There are a number of interesting legal questions, and not so many easy answers. It is a very well-written piece, and the courtroom scenes are riveting. This is not a show that will be done very often here in the States, but it is worth taking a look at.
I do wish that the play included the closing argument that Maj. Thomas makes in the movie. It’s a great monologue, and sums up the ambiguities of the case very nicely:
All in all, I give “Breaker Morant” a solid eight Mockingbirds out of ten on my world-famous (on this blog, anyway) “Mockingbird Scale.” If you get a chance to see a production of this play, don’t miss it (and let me know what you think of it). If you have a lot of male actors skilled in various dialects, you might want to give it a look.
NEXT WEEK: While I am on a roll, discussing early 20th century rules of war, I’ll begin an examination of the play “Savages” by Anne Nelson. It’s based on events during the Philippine Insurrection.