James Christie

The 1902 court-martial of Breaker Morant was a war crimes prosecution that brought to trial six officers – Lieutenants Harry "Breaker" Morant, Peter Handcock, George Witton, Henry Picton, Captain Alfred Taylor and Major Robert Lenehan – of the Bushveldt Carbineers (BVC), an irregular regiment of mounted rifles during the Boer War.

The charges, which were in part prompted by a "letter of complaint", which was written by BVC Trooper Robert Mitchell Cochrane and signed by James Christie and 14 other members of the BVC, were that Lieutenant Morant had incited the co-accused to murder some 20 people, including the wounded POW Floris Visser, a group of four Boer prisoners of war (POWs) and four Dutch schoolteachers, Boer civilian adults and children, and a Lutheran missionary named Rev. Daniel Heese. Morant and Handcock were acquitted of killing Heese, but were sentenced to death on the other two charges and executed within 18 hours of sentencing. Their death warrants were personally signed by Lord Kitchener.

It was not until 1907 that news of the trial and executions were made public in Australia when Witton published Scapegoats of the Empire. The Australian government ensured that none of its troops would be tried by the British military during World War I. The official court records have never been found, prompting accusations of a British cover up.

On 4 October 1901, a letter signed by 15 members of the Bushveldt Carbineers (BVC) garrison at Fort Edward was secretly dispatched to Colonel F.H. Hall, the British Army Officer Commanding at Pietersburg. Written by BVC Trooper Robert Mitchell Cochrane, a former Justice of the Peace from Western Australia, the letter accused members of the Fort Edward garrison of six "disgraceful incidents":

1. The shooting of six surrendered Afrikaner men and boys and the theft of their money and livestock at Valdezia on 2 July 1901. The orders had been given by Captains Alfred Taylor and James Huntley Robertson, and relayed by Sergeant Major K.C.B. Morrison to Sergeant D.C. Oldham. The actual killing was alleged to have been carried out by Sgt. Oldham and BVC Troopers Eden, Arnold, Brown, Heath, and Dale.

2. The shooting of BVC Trooper B.J. van Buuren by BVC Lieutenant Peter Handcock on 4 July 1901. Trooper van Buuren, an Afrikaner, had "disapproved" of the killings at Valdezia, and had informed the victims' wives and children, who were imprisoned at Fort Edward, of what had happened.

3. The revenge killing of Floris Visser, a wounded prisoner of war, near the Koedoes River on 11 August 1901. Visser had been captured by a BVC patrol let by Lieut. Harry Morant two days before his death. After Visser had been exhaustively interrogated and conveyed for 15 miles by the patrol, Lieutenant Morant had ordered his men to form a firing squad and shoot him. The squad consisted of BVC Troopers A.J. Petrie, J.J. Gill, Wild, and T.J. Botha. A coup de grace was delivered by BVC Lieutenant Harry Picton. The slaying of Floris Visser was in retaliation for the combat death of Morant's close friend, BVC Captain Percy Frederik Hunt, at Duivelskloof on 6 August 1901.

4. The shooting, ordered by Captain Taylor and Lieutenant Morant, of four surrendered Afrikaners and four Dutch schoolteachers, who had been captured at the Elim Hospital in Valdezia, on the morning of 23 August 1901. The firing squad consisted of BVC Lieutenant George Witton, Sgt. D.C. Oldham, and Troopers J.T. Arnold, Edward Brown, T. Dale, and A. Heath. Although Trooper Cochrane's letter made no mention of the fact, three Native South African witnesses were also shot dead.

The ambush and fatal shooting of the Reverend Carl August Daniel Heese of the Berlin Missionary Society near Bandolierkop on the afternoon of 23 August 1901. Heese had spiritually counseled the Dutch and Afrikaner victims that morning and had angrily protested to Morant at Fort Edward upon learning of their deaths. Trooper Cochrane alleged that the killer of Heese was BVC Lieutenant Peter Handcock. Although Cochrane made no mention of the fact, Heese's driver, a member of the Southern Ndebele people, was also killed.

5. The orders, given by BVC Lieutenant Charles H.G. Hannam, to open fire on a wagon train containing Afrikaner women and children who were coming in to surrender at Fort Edward, on 5 September 1901. The ensuing gunfire led to the deaths of two boys, aged 5- and 13-years, and the wounding of a 9-year-old girl.

6. The shooting of Roelf van Staden and his sons Roelf and Christiaan, near Fort Edward on 7 September 1901. All were coming in to surrender in the hope of gaining medical treatment for teenaged Christiaan, who was suffering from recurring bouts of fever. Instead, they were met at the Sweetwaters Farm near Fort Edward by a party consisting of Lieutenants Morant and Handcock, joined by BVC Sergeant Major Hammet, Corporal MacMahon, and Troopers Hodds, Botha, and Thompson. Roelf van Staden and both his sons were then shot, allegedly after being forced to dig their own graves.

The letter then accused the Field Commander of the BVC, Major Robert Lenahan, of being "privy these misdeamenours. It is for this reason that we have taken the liberty of addressing this communication direct to you." After listing numerous civilian witnesses who could confirm their allegations, Trooper Cochrane concluded, "Sir, many of us are Australians who have fought throughout nearly the whole war while others are Africaners who have fought from Colenso till now. We cannot return home with the stigma of these crimes attached to our names. Therefore we humbly pray that a full and exhaustive inquiry be made by Imperial officers in order that the truth be elicited and justice done. Also we beg that all witnesses may be kept in camp at Pietersburg till the inquiry is finished. So deeply do we deplore the opprobrium which must be inseparably attached to these crimes that scarcely a man once his time is up can be prevailed to re-enlist in this corps. Trusting for the credit of thinking you will grant the inquiry we seek."

In response to the letter written by Trooper Cochrane, Colonel Hall summoned all Fort Edward officers and non-commissioned officers to Pietersburg on 21 October 1901. All were met by a party of mounted infantry five miles outside Pietersburg on the morning of 23 October 1901 and "brought into town like criminals". Morant was arrested after returning from leave in Pretoria, where he had gone to settle the affairs of his deceased friend Hunt.

Although the trial transcripts, like almost all others dating from between 1850 and 1914, were later destroyed by the British civil service, it is known that a Court of Inquiry, the British military's equivalent to a grand jury, was convened on 16 October 1901. The President of the Court was Colonel H.M. Carter, who was assisted by Captain E. Evans and Major Wilfred N. Bolton, the Provost Marshal of Pietersburg. The first session of the Court took place on 6 November 1901 and continued for four weeks. Deliberations continued for further two weeks, at which time it became clear that the indictments would be as follows:

1. In what became known as "The Six Boers Case", Captains Robertson and Taylor, as well as Sergeant Major Morrison, were charged with committing the offense of murder while on active service.

2. In relation to what was dubbed "The Van Buuren Incident", Lieutenant Handcock was charged with murder and Major Lenahan was charged with, "When on active service by culpable neglect failing to make a report which it was his duty to make."

3. In relation to "The Visser Incident", Lieutenants Morant, Handcock, Witton, and Picton were charged with "While on active service committing the offense of murder".

4. In relation to what was incorrectly dubbed "The Eight Boers Case", Morant, Handcock, and Witton were charged with "While on active service committing the offense of murder".

In relation to the slaying of Heese, Morant and Handcock were charged with "While on active service committing the offense of murder".

5. No charges were filed for the three children who had been shot by the Bushveldt Carbineers near Fort Edward.

6. In relation to what became known as "The Three Boers Case", Morant and Handcock were charged with "While on active service committing the offense of murder".

In a confidential report to the War Office, Colonel J. St. Claire wrote:

I agree generally with theviews expressed by the Court of Inquiry in the opinions of the several cases. The idea that no prisoners were to be taken in the Spelonken area appears to have been started by the late Captain Hunt & after his death continued by orders given personally by Captain Taylor.

The statement that Captain Hunt's body had been maltreated is in no way corroborated & the reprisals undertaken by Lt Morant on this idea were utterly unjustifiable.

Lieut Morant seems to have been the primary mover in carrying out these orders, & Lieut Handcock willingly lent himself out as the principle executioner of them.

Lieut Morant acquiesced in the illegal execution of the wounded Boer Visser & took a personal part in the massacre of the 8 surrendered Boers on 23 August.

The two N.C.O.s acted under orders but were not justified in obeying illegal commands. After the murder of Van Buuren the officers seem to have exercised a reign of terror in the District, which hindered their men from reporting their illegal acts & even prevented their objecting to assist in the crime.

The first court martial opened on 16 January 1902, with Lieutenant-Colonel H.C. Denny presiding over a panel of six judges. Major James Francis Thomas, a solicitor from Tenterfield, New South Wales, had been retained to defend Lenahan. The night before, however, he agreed to represent all six defendants. A Captain Burns-Begg appeared for the prosecution.

The Visser trial

The "Visser Incident" was the first case to go to trial. The accused all entered pleas of not guilty.

Among the witnesses for the prosecution was Morant's former orderly and interpreter, BVC Trooper Theunis J. Botha, who testified that Floris Visser, who had been promised that his life would be spared, was cooperative during two days of interrogation and that all his information was later found to have been true. As Visser had been shot through the ankle and was unable to walk, Morany had him conveyed more than fifteen miles in a cape cart. Despite this, Morant convened a "Court martial", and ordered Visser to be shot.

When he took the stand, Morant testified that he only followed orders to take no prisoners as relayed to the late Captain Percy Frederick Hunt by Colonel Hubert Hamilton. He also alleged that Floris Visser had been captured wearing a British Army jacket and that Captain Hunt's body had been mutilated.

The President of the Court then asked whether Visser's "trial" had been constituted like the court-martial, and whether the "judges" had observed King's Regulations.

Morant's reply, as recorded by Witton, was: "Was it like this? No; it was not quite so handsome. As to rules and regulations, 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!"

Toward the end of the trial, the court moved to Pretoria, where Colonel Hamilton testified that he had "never spoken to Captain Hunt with reference to his duties in the Northern Transvaal". Though stunned, Major Thomas argued that his clients were not guilty because they believed that they "acted under orders". In response, Burns-Begg argued that they were "illegal orders" and said, "The right of killing an armed man exists only so long as he resists; as soon as he submits he is entitled to be treated as a prisoner of war." The Court ruled in the prosecution's favor.

Morant was found guilty of murder. Handcock, Witton, and Picton were convicted of the lesser charge of manslaughter.

After observing the trial, Colonel A.R. Pemberton wrote to the War Office, "I consider that Lieut. Morant was properly convicted... The so-called Court was not a Court at all; it may be more justly called a consultation between 4 officers which ended in a party of subordinates being ordered to commit murder.

"A stronger case of implied malice aforethought has rarely been represented before any tribunal. I fail to understand on what grounds the other 3 prisoners were found guilty of manslaughter only.

"I disagree with this finding: From the evidence adduced I consider the 4 officers are jointly & severally responsible for the death of Visser & guilty of murder. I do not consider it proved that Visser was wearing British uniform."

"Eight Boers" case

The trial recommenced on 31 January 1902 with the four Afrikaners and four Dutch schoolteachers who had surrendered to a party led by Morant and Handcock at the Elim Hospital on the morning of 23 August 1901.

The case had barely commenced before the prosecution counsel, Captain Burns-Begg, and two of the judges, Major Ousley and Captain Marshall, were replaced.

Documents connected with the case reveal that Major R. Whigham and Colonel James St. Clair had ordered Major Wilfred N. Bolton to appear for the prosecution, as he was considered less expensive than hiring a barrister. Bolton vainly requested to be excused, writing, "My knowledge of law is insufficient for so intricate a matter."

Meanwhile, Captains Matcham and Brown took the place of Ousley and Marshall.

The deposition of former BVC Corporal Albert van der Westerhuizen, the memoirs of George Witton, and the Transvaal War Museum archivesreveal that, after the prisoners were taken, they were marched to a hillside nearby and forced to dig their own mass grave. Then, as planned in advance, Henry Lebeoer and Mr. Schwartz, two local Afrikaners assigned to Captain Taylor's staff, fire three shots to make it appear that the party was under attack by the Zoutpansberg Commando. All eight prisoners were then shot and buried in the mass grave which they had dug. According to South African historian Charles Leach, only five out of the eight victims were members of the Zoutpansberg Commando.

Witton alleged in his account that he shot a Boer who had lunged at him and attempted to grab his rifle. Other sources allege that the same man was a Dutch Reformed Church deacon and member of the Zoutpansberg Commando named C.J. Smit.

According to South African historian Dr. C.A.R. Schulenburg, "Morant, Handcock, and Witton were found guilty of the murder of the eight Boers. Morant's defence was again that he was merely carrying out orders from senior officers 'not to bring any more prisoners in.'"

After the conclusion of the "Eight Boers" hearing, the prisoners were placed in irons, taken to Pretoria by rail under heavy guard and tried on the third main count.

Heese case

The charge concerned the murder of the Lutheran missionary, Reverend Daniel Heese, who had spiritually counseled the eight Afrikaner and Dutch victims at Valdezia

It opened on 17 February, with Major Bolton alleging that Heese had been ambushed and shot by Handcock on the orders of Morant. Handcock was charged with murder and Morant with inciting.

The Three Boers Case

Morant and Handcock stood accused of ordering certain troopers and a corporal to shoot Roelf van Staden and both his sons. They were found guilty.

Major Thomas argued that the killings of surrendered members of the Boer Commandos were justified under what is now called the Nuremberg Defense. Namely, that the defendants could not be held criminally or morally liable because they only followed orders from Lord Kitchener to, "take no prisoners". Even if Maj. Thomas had been able to prove this, his clients may still have been convicted.

The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474, was the first "international" recognition of commanders' obligations to act lawfully. Hagenbach was put on trial for atrocities committed against the civilian population of Breisach. He was found guilty of war crimes and executed by beheading at Breisgach on May 4, 1474. Standing accused of allowing his troops to commit mass murder and war rape, which, "he as a knight was deemed to have a duty to prevent", Hagenbach replied that he, like Morant, only followed orders from the Duke of Burgundy, Charles the Bold, against whose rule the city of Breisach had rebelled. Despite the fact there was no explicit use of the term, "command responsibility", the trial of Peter von Hagenbach is seen as the first war crimes prosecution based on this principle.

During the Leipzig War Crimes Trials, which prosecuted alleged German war crimes after the end of World War I, evidence that an accused war criminal, "only followed orders," was taken very seriously and resulted in both aquittals and light sentences.

Kapitänleutnant Karl Neumann of U-boat UC-67, who had torpedoed and sank the British hospital ship Dover Castle in the Mediterranean Sea on 26 May 1917, stood accused of war crimes on the high seas. Neumann was able to prove, however, that he had acted under orders from his superiors in the Imperial German Navy. The Imperial German Government had accused the Allies of using hospital ships for military purposes and had announced on 19 March 1917 that U-boats could sink hospital ships under certain conditions. The court held that Neumann believed the attack to be a lawful act and found him not guilty of war crimes.

Oberleutnants Ludwig Dithmar and John Boldt also stood accused of with war crimes on the high seas. They were two officers of the submarine SM U-86, which had not only torpedoed and sunk the Canadian hospital ship Llandovery Castle, but had also machine-gunned the survivors in the lifeboats. The sinking had taken place off the coast of Ireland on 27 June 1918 and was the deadliest Canadian maritime disaster of the First World War. 234 doctors, nurses, members of the Canadian Army Medical Corps, soldiers and seamen died in the sinking and in the subsequent machine-gunning of and ramming of the lifeboats by U-86's crew. Only 24 people, the occupants of a single life-raft, survived.

Dithmar and Boldt were found guilty of war crimes and were both sentenced to four years in prison. Even though the German Government had accused the Royal Navy of war crimes for similarly shooting the unarmed survivors of U-27 and for ramming a lifeboat containing the survivors of U-41 during the Baralong incidents, the sentences of Dithmar and Boldt were later overturned on appeal. The grounds were that they only followed orders and that their commanding officer alone was responsible. Their commanding officer, Helmut Brümmer-Patzig, had fled to the Free City of Danzig and was never prosecuted.

As a result of such leniency, the Leipzig war crimes trials were considered outside of the Weimar Republic to be a travesty of justice.

According to Alfred de Zayas, however, "Generally speaking, the German population took exception to these trials, especially because the Allies were not similarly bringing their own soldiers to justice." (See Victor's justice and British war crimes)

As Turkish atrocities during the Great War had been far more systematic and heinous than anything done by the Kaiser's Germany, the effort to prosecute Ottoman war criminals was taken up by the Paris Peace Conference (1919) and ultimately included in the Treaty of Sèvres (1920) with the Ottoman Empire.

After the war, the British Foreign Office demanded 141 Turks be tried for crimes against British soldiers, and 17 for involvement in the Armenian Genocide.

The initial prosecution of war criminals was established between 1919 and 1920 by the Turkish Committee of Union and Progress which charged and tried several former leaders and officials for subversion of the constitution, War profiteering, and with what is now called genocide against both Greeks and Armenians.At the same time the British Foreign Office conducted its own investigation into alleged Turkish war crimes, debating whether the process was adequately dealt with by Turkish courts martial.

The court sat for nearly a year, from April 1919 through March 1920, although it became clear after just a few months that the tribunal was simply going through the motions. The judges had conveniently condemned the first set of defendants (Enver Pasha, Talaat Pasha, et al.) when they were safely out of the country, but now, with Turkish lives genuinely on the line, the Tribunal, despite making a great show of its efforts, had no intention of returning convictions. Admiral Sir Somerset Gough-Calthorpe protested to the Sublime Porte, took the trials out of Turkish hands, and removed the proceedings to Malta. There an attempt was made to seat an international tribunal, but the Turks bungled the investigations and mishandled the documentary evidence so that nothing of their work could be used by the international court.

The Turkish Republican Government in Ankara was strictly opposed to the prosecution of accused war criminals. Mustafa Kemal Atatürk said about the detainees in Malta on the occasion of the congress in Sivas 4 September 1919: "...should any of the detainees either already brought or yet to be brought to Constantinople be executed, even at the order of the vile Constantinople government, we would seriously consider executing all British prisoners in our custody." From February 1921 the military court in Constantinople begun releasing prisoners without trials.

Armenian historian Vahakn N. Dadrian commented that the Allied efforts at prosecution were an example of "a retributive justice [that] gave way to expedience of political accommodation".

Peter Balakian — referring to the post-war Ottoman military tribunals, none of which was held in Malta — commented that "The trials represent a milestone in the history of war-crimes tribunals." Although they were truncated in the end by political pressures, and directed by Turkey's domestic laws rather than an international tribunal, the Turkish Courts-Martial of 1919-20 were an antecedent to the Nuremberg Trials following World War II.

On October 8, 1945, General Anton Dostler of the Wehrmacht became the first senior German officer to be prosecuted for war crimes after the end of the Second World War. The trial took place before an American military tribunal inside the Royal Palace of Caserta at Caserta, Italy. General Dostler stood accused of ordering the summary executions of 15 American POWs, who had been captured in March 1944. Like Morant and his co-defendants, Gen. Dostler admitted to ordering the shooting of the POWs but said that he could not be held criminally responsible because he only followed orders.

Gener Dostler was able to prove that the killing of the 15 American prisoners of war was done in obedience to a direct order from Field Marshal Albert Kesselring and to Adolf Hitler's Commando Order, which demanded the summary execution of all Allied commandos who were captured by German forces. However, like the judges at Morant's Court-martial, the American judges rejected the Superior Orders defense and found Gen. Dostler guilty of war crimes. He was sentenced to death and executed by firing squad at Aversa on December 1, 1945.

The Dostler case became the precedent for the Nuremberg trials of Nazi leaders beginning in November 1945, namely, that acting under Superior orders does not relieve a defendant from the legal or moral responsibility for carrying out illegal commands. This principle was codified in Principle IV of the Nuremberg Principles and similar principle are found in sections of the Universal Declaration of Human Rights.

In the end, however, Lieutenant Colonel Hubert Hamilton categorically denied giving Captain Percy Frederic Hunt orders to shoot POWs and also denied the existence of a coded telegram from him to Lord Roberts. Even so, Maj. Thomas still demanded his the acquittal of his clients on the grounds that they believed that they acted under orders. In response, the prosecutor argued that even if Kitchener had ordered the shooting of prisoners, they were, "illegal orders," and that the defendants had no right to obey them. The judges agreed with the prosecution and found the defendants guilty.

While the trial was underway, Boer commandos launched a surprise attack on Pietersburg. Morant and his co-accused were released from their cells and given arms in order to participate in the defence. It is reported that they fought bravely, in the direct line of fire, and assisted in the defeat of the attackers. Although Major Thomas filed a "plea of condonation", which should have earned them clemency because of their roles in the defence, his request was dismissed by the court.

The principle of condonation in military law traces back to the "Memorandum on Corporal Punishment" issued by the Duke of Wellington on 4 March 1832:

"The performance of a duty of honour or of trust, after the knowledge of an offence committed by a soldier, ought to convey a pardon for the offence.

According to Clode's Military Forces of the Crown (1869):

"The principle of condonation for criminal offences is peculiar to the Military Code, and is of comparatively modern origin [viz., The Duke of Wellington's Memorandum]. Sir Walter Raleigh served the Crown under a special Commission, giving him Supreme Command, with the power of life and death over others, but he was afterwards executed upon his former conviction — the doctrine then laid down being "that the King might use the service of any of his subjects in what employment he pleased, and it should not be any dispensation for former offences". The rule is not so now, as applied to Military offences. "The performance of a duty of honour or of trust, after the knowledge of an offence committed, ought," said the late Duke of Wellington, "to convey a pardon for the offence"...

Morant and Handcock were sentenced to death and executed by firing squad on the morning of 27 February; less than 18 hours after the verdict. Witton had also been sentenced to death, but this was commuted to life in prison by Kitchener (he was released by the British House of Commons on 11 August 1904 and died in 1942). Picton was cashiered; and Lenehan was reprimanded and discharged. All charges against the British intelligence officer Captain Taylor (died 1941) were dismissed.

News of the execution of the two Australians was published in March 1902, and the Australian Government requested particulars of the case.

The Australian debate was revived in 1907 after Witton returned to Australia and published his story, Scapegoats of the Empire.The Australian government felt so strongly about this case that it insisted that none of its troops would be tried by the British military during World War I.

Despite having left a written confession in their cell, Morant and Handcock have become folk heroes in modern Australia. Their court-martial and death have been the subject of books, a stage play, and an award-winning Australian New Wave film adaptation by director Bruce Beresford.

Upon its release in 1980, Beresford's film both brought Morant's life story to a worldwide audience and "hoisted the images of the accused officers to the level of Australian icons and martyrs." Many Australians now regard Lts. Morant and Handcock as scapegoats or even as the victims of judicial murder. Attempts continue, with widespread public support, to obtain them a posthumous pardon or even a new trial.

In a 1999 interview, Beresford said about his film, "I read an article about it recently in the LA Times and the writer said it's the story of these guys who were railroaded by the British. But that's not what it's about at all. The film never pretended for a moment that they weren't guilty. It said they are guilty. But what was interesting about it was that it analysed why men in this situation would behave as they had never behaved before in their lives. It's the pressures that are put to bear on people in war time. Look at the atrocities in Yugoslavia. Look at all the things that happen in these countries committed by people who appear to be quite normal. That was what I was interested in examining. I always get amazed when people say to me that this is a film about poor Australians who were framed by the Brits."

According to South African historian Charles Leach, "In the opinion of many South Africans, particularly descendants of victims as well as other involved persons in the far Northern Transvaal, justice was only partially achieved by the trial and the resultant sentences. The feeling still prevails that not all the guilty parties were dealt with - the notorious Captain Taylor being the most obvious one of all."