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From: Barry Caligari
Date: 1/30/2002
Time: 11:15:35 AM
Remote Name: 202.10.209.85
Steve, thank you for your reply. I will respond to your points in order.
Yes, Taylor was implicated in the 6 Boers case and the Van Buren case before Morant arrived in the Spelonken. In addition Taylor incited the patrol, which shot Visser, issued the lethal travel pass to Heese and had his operatives hand over the 8 Boers and 3 Boers to the BVC to shoot. Taylor’s criminality ultimately resulted in his removal by Colonel Henderson, DMI. Enraght-Mooney, Taylor’s replacement, was outraged when he learnt the full extent of the crimes perpetrated by Taylor in the Spelonken. My point is that law must be applied to all equally for it to qualify as justice. Taylor was implicated in heinous crimes and should have been court-martialled but he was protected by Kitchener and escaped the full force of the law. The singling out of a particular group for special attention is not justice but persecution.
In regard to Hunt’s order to shoot prisoners, witnesses at the courts-martial testified that Hunt issued the order well before his death and reprimanded Morant for not obeying it. See Witton pp.112-116.
The murder of Heese had the potential to intensify Kitchener’s despair, a result of his incompetence in the war. He would appreciate that the murder of a “German” pastor would further inflame the strident criticism of Britain by the international community. A vigorous resolution of the Heese case was critical but despite strong suspicions there was insufficient evidence to guarantee a conviction.
Under the circumstances Kitchener had to act decisively but avoid an embarrassing failure in court. He cobbled together a number of previously ignored and tolerated incidents of shooting Boer prisoners which could not escape conviction if vital evidence was withheld and the defence ill prepared. The outcome of the Heese case was almost irrelevant because the ‘guilty’ would pay the penalty even if there were strong recommendations to mercy. The prosecutor, Major Bolton, in the Heese case pleaded with the Deputy Judge Advocate General to take him off the case because the evidence did not exist for a conviction.
I do not have the benefit of your active service in Bosnia but deplore the unbelievable barbarity which occurred and can only commend those who served there. The ROE and national constraints placed on some national forces saw them stand by and watch as their comrades were captured and inhumanely treated while civilians in their care were slaughtered. If soldiers broke those constraints and acted with force to aid their comrades or civilians and cause deaths in ‘enemy’ ranks in doing so, would they be guilty of disobeying orders, or, God forbid, murder?
To compare the criminality of the SS with the BVC situation is inappropriate. NAZI Germany, as state policy, acted outside every convention regulating the customs of war. The criminality was institutionalised. The British forces and the Boers had a national code, which was generally adhered to throughout South Africa during the Boer War.
The crux of the Morant Affair inevitably boils down to whether the BVC obeyed a legal order authorised by, and in accordance with, the Customs of War as laid down in the 1899 edition of the MML. This is the grey murky area because the truth revolves around the duplicitous Kitchener and his “band of boys”.
I will preface my position by acknowledging that the law clearly states shooting prisoners is murder and the penalty is death. But there are, however, significant exceptions to this law. “The Customs of War” do allow for summary executions of prisoners captured in the uniforms of their captors and, in addition, the reciprocal shooting of prisoners, as measures of officially sanctioned reprisal or retaliation.
Kitchener, of course, denied ever issuing an order to shoot prisoners, let alone one sanctioning reprisals but once again he lied because he did issue such an order. The multitude of incidents, widespread over time and space, recorded by historians detailing the shooting of Boer prisoners indicates such summary executions were carried out in the belief they were in compliance with an order from Kitchener. Kitchener’s own reference to such an order is as follows:
“No. 708 From Lord Kitchener to the Secretary of State for War (Telegram) No. S664 Pretoria, 3rd November 1901, 11.20 A.M. In certain cases of Boers captured disguised in British uniform I have had them shot, but as the habit of so disguising themselves before an attack is becoming prevalent, I think I should give general instructions to Commanders that Boers wearing British uniform should be shot on capture.”
On 19 March 1902, shortly after the executions of Morant and Handcock, the Secretary of State for War admitted to the House of Commons: “That Boers captured in British uniforms were liable to be tried by Court Martial [military court?] and shot. Lord Kitchener, he said, had already executed some of the enemy found committing this breach of the customs of civilized warfare”
The Statement by the Secretary of State for War to the House is cleverly crafted and does not assert that the Boers shot by Kitchener were actually tried by a military court. It is contrived to make Kitchener’s admission more politically palatable without being misleading to the House. Kitchener’s telegram doesn’t mention, “to be tried by court martial [military court] and shot”. Kitchener states emphatically, “I have had them shot”.
Comprehensive minutes maintained by the Judge Advocates Office, Pretoria, records the legal review of all military court proceedings, where the sentences imposed were greater than two years imprisonment. An examination of this log for the month prior to Kitchener’s telegram and five months afterwards fails to reveal any case of Boers being tried, let alone executed, for wearing British uniform - a six-month period during which Kitchener thought the offence was “becoming prevalent”. Therefore, the Boers Kitchener had shot, on his own admission, were not condemned by military courts but summarily executed.
In view of Kitchener’s lack of credibility is it stretching the imagination too far to suggest that Kitchener could justify the shooting of prisoners per se in retaliation for the shooting of Lieutenant Best and his men near Pietersberg on 4 July or for some other instance?
Kitchener’s determination to eliminate the enemy by any means is all too evident. Kitchener demanded authority to shoot all Cape and Natal rebels out of hand (summary execution of British subjects?) The Secretary of State for War explained that it would be ‘awkward’ to shoot rebels out of hand. This made Kitchener contemptuous of legal scruples by which he considered that the Cabinet was consistently swayed. Kitchener did not need approval to shoot Boer prisoners nor was he inclined to dispose of the habits of a lifetime by adopting legal scruples.
As mentioned previously, Major Poore, the Army provost marshal on Kitchener’s headquarters, who was taking depositions of “the 15” admits in his personal diary that an order did exist to shoot Boers surrendering.
In summary, Kitchener’s telegram is nothing less than that which it purports to be – a timely justification for past and future summary executions. Although unstated, the order complies with the provisions of the Customs of War authorizing retaliation. Boers were summarily executed as a consequence of verbal orders or insinuations relayed by Kitchener’s personal staff to field commanders. The timing of the telegram is also important, falling as it does between the arrest of the BVC officers and the courts-martial – and at a time Kitchener was under considerable pressure from at home and abroad.
In the final analysis, if Boers were not tried and sentenced to death by military courts for “wearing British uniform” and Kitchener admits to having Boers summarily executed for committing such an offence, who carried out such killings and on what authority? In the absence of any written orders the only other authority would be Kitchener’s convenient and deniable verbal orders.
But the critical question remains, how would a subordinate recognise an illegal order from an officially sanctioned reprisal to shoot Boer prisoners if the reprisals were not promulgated? Especially if a verbal order to shoot Boer prisoners came from a secretive and duplicitous Kitchener. For a subordinate in the Boer War to understand the different law involved, analyse the difference in relation to a particular situation and be able to conclude whether shooting prisoners is legal or illegal on operations, is a questionable ask. While “ignorance of the law is no excuse”, “ignorance of fact will very often be an excuse”.
There is “reasonable doubt” about the veracity of Kitchener’s claim that he did not order Boer prisoners to be shot because he clearly did in “certain circumstances”. My argument is that Kitchener’s order was far more inclusive than his admission.
You asked me if Morant was justified in shooting the prisoners. I reiterate that courts-martial at the time, in possession of all the facts as previously outlined, would find reasonable doubt and Morant would have been acquitted.
Thank for your interest Steve, but I am far more comfortable with my alternative view. I fully understand and respect your point of view but don’t agree with it. Regards BJC