By James Unkles
As Australia embarks on the process of investigating and trying alleged war crimes by Australian SAS soldiers we can look to the lessons of history to remind us that the outrage of perceived war crimes can be equally outraged by the abuse in human rights in the arrest, detention trial and sentencing of offenders.
On 27 February 1902, Lieutenant Edwin Henry Murrant – better known as Harry “Breaker” Morant – and Lieutenant Peter Handcock were executed for murder by firing squad during the Boer War.
The anniversary of this event serves as a reminder that then and now the conduct of military justice should be subject to the principles of natural justice. This was not the case on the occasion of the execution of Lieutenants Morant and Peter Handcock and the imprisonment of Lt George Witton.
In 1902, three Australian volunteers who served with the British Army during the Anglo Boer War were tried and sentenced for executing Boer combatants.
Morant and Handcock were executed and Witton sentenced to life imprisonment.
The manner in which these men were treated remains controversial, shrouded in protest that they were scapegoated for the war crimes of their British superiors, including Military Commander Lord Kitchener.
For the past decade I have pursued justice for the descendants of Morant, Handcock and Witton. Australians have long believed that they were scapegoats for Kitchener’s controversial “take no prisoners” policy and that the trial process was flawed.
My campaign is backed by compelling and exacting research and legal opinions from the likes of human rights lawyer and judge Geoffrey Robertson QC and the late Sir Laurence Street, former Chief Justice of NSW, and other leading community and political leaders and senior legal counsel.
Geoffrey Robertson stated: “They were treated monstrously. The case of Morant and Hancock, the two men who were executed, is a disgrace. Certainly by today's standards they were not given any of the human rights that international treaties require men facing the death penalty to be given. But even by the standards of 1902 they were treated improperly, unlawfully.”
This military prosecution was illegal from the moment the men were arrested in October 1901 to their execution in February 1902.
A motion passed by the Australian Parliament on 12 February 2018 expressed “sincere regret that Lieutenants Morant, Handcock and Witton were denied procedural fairness contrary to law and acknowledges that this had cruel and unjust consequences; and…sympathy to the descendants of these men as they were not tried and sentenced in accordance with the law of 1902.”
The controversy about this case continues 119 years after the fact and the Australian public and the men’s descendants want to see it properly investigated in an open and transparent manner.
Injustices, in any age, must be addressed to demonstrate respect for the rule of law.
The Morant case is not about using legal technicalities or modern law to judge the past, but exposing serious errors made in the administration of justice by the standards of 1902.
The sacrifice of Australian veterans past and present should be recognised and respected. If doubts exist as to the manner in which they were treated by their command and government then this should be examined by an independent authority.
Anything less is a failure of leadership both at political and military levels.
James Unkles is a lawyer and former Crown prosecutor. He is the author of Ready, Aim, Fire: Major James Francis Thomas, the Fourth Victim in the Execution of Harry ‘Breaker’ Morant. He is writing a book on the history of Morant, Peter Handcock and George Witton and the case for judicial review. For further information visit his website: www.breakermorant.com