HL Deb 25 April 1950 vol 166 cc1110-26

3.0 p.m.

THE EARL OF CORK AND ORRERY rose to call the attention of His Majesty's Government to the result of the recent review of sentences of imprisonment passed by a British Military Court upon the two survivors of the five men who were tried in what is known as the "Peleus" trial, three of whom were shot; and to move for Papers. The noble Earl said: My Lords, the subject of the Motion which I wish to bring before your Lordships' House is connected with what is known as the "Peleus" trial. The point with which I wish to deal is the validity of the excuse for a war crime that the person committing the crime was acting under superior orders. It is a difficult subject with which to deal, and I must crave the indulgence of your Lordships for two reasons. First, I feel that I am standing on rather delicate ground, in view of the high legal authorities who are now sitting in the House. Secondly, I have to confess that, when I came up from the country to-day, I left behind me the carefully-drawn draft of my speech. Your Lordships will, in consequence, he spared a good deal, but I shall have to strain my memory—which is now failing, I am afraid. I trust, however, that I shall be able to make my point.

As your Lordships know, international law as it now stands does not allow for the plea, in war-crimes cases, that the person charged was acting under superior orders. It says quite clearly that a member of the Armed Forces found guilty of a war crime must be punished for it, whereas up to April, 1944, there was a note in the British Manual of Military Law, and in the United States Manual, which clearly stated that a member of the Armed Forces acting under superior orders was not punishable by the enemy, though the giver of the order was. That was a fair proviso, but I am not suggesting that that is the law now. During a debate in your Lordships' House in May of last year, in which the noble and learned Viscount the Lord Chancellor, and the noble and learned Lords, Lord Simon and Lord Wright, took part, it was clearly stated that that was not the law as it now stands. Ever since 1921 it has been the law that a man in the Armed Forces has to obey only a "lawful order"—those are the words used. That places on the individual the onus of deciding whether or not an order which he receives is legal. In a great number of cases he will be incapable of forming a judgment on this point, because he will not know why in fact an order has been given, or what makes it necessary.

The Manual of Military Law, as I say, gave these excuses for the member of the Armed Forces concerned, but the noble and learned Lord, Lord Wright, speaking in the debate in May of last year, supplied an explanation concerning the whole of the law which now relates to members of the Armed Forces. He explained how it was that this law, which had existed since 1921, and was stated in the Military Manuals of both this country and the United States, was wrong. As therein set out, the law excused members of the Military Forces if they had acted under superior orders. I am not questioning Lord Wright's explanation; I am sure that what he said was correct. But I think your Lordships will agree that it is a remarkable fact that an amendment which ought to have been included in the Manual of Military Law in 1921 did not appear there until April, 1944. That is a long time for an amendment to take to reach the Manual.

This is a matter which vitally affects people who have to be instructed from the Manual. As I say, I am not in any way making an attack on the explanation which was given, but I suggest that for a long time a great number of lawyers and officers accepted that the order as it stood was correct. I suggest that there must have been a number of people whose duty it was to handle these books and bring them up to date and others who had to teach from them. There must have been many who had to lecture to officers of the three Services on military law, and it is extraordinary that the law could remain stated like that, and that none of them should question it. Even if the accuracy of the Manual was not acknowledged, I suggest that in this case tacit consent gave agreement. It is natural that it should be so. One of the cardinal principles of military discipline is that an officer who gives an order takes full responsibility for that order, and in return for his taking that full responsibility he expects unhesitating obedience to his orders. I suggest that if you start tampering with that understanding you tend to undermine military discipline, which is a very dangerous thing for any Government to do. There is no knowing what the repercussions may be. It may prove a boomerang when there is need to rely on the Armed Forces for if every individual feels that he has to consider whether an order given to him is legal or not, it may lead to unreliability.

I am citing the case of the "Peleus" as an example. I do so because I think it is a rather flagrant case and because it is simple to understand. The events took place in a small space; few people were involved; and the episode lasted only a few hours. The "Peleus" was a Greek steamer of 9,000 tons, and at the time of the incident she was on a voyage from Freetown, West Africa, to the River Plate. On March 13, 1942, when she was about 300 miles from the African coast, the German U-boat 852 put two torpedoes into her. She disintegrated, and it is stated that all traces of her were lost within a matter of two minutes, except for some rafts with survivors on them. Two men from the rafts were taken aboard the submarine, and were submitted to the usual questioning by officers. They were then put back on their raft, and the submarine disappeared in the darkness. She is alleged to have moved off for a distance of about 1,000 metres and then to have returned and opened fire with machine guns and grenades upon the survivors of the "Peleus."

The declared intention of the captain of the submarine was to remove all signs of wreckage, so that an air patrol in the morning would not notice anything which would lead to the idea or to the discovery that a submarine had been or was in that particular area. At his trial the captain pleaded "operational necessity." Of course, in certain circumstances, "operational necessity" must be a valid excuse. It is the first duty of any officer to attain the object which he has been ordered to attain, and to do it with minimum loss of life to his own men arid, if possible, without damage to the ship for which he is responsible. If he is going to make the excuse of "operational necessity" he has to prove that the necessity was immediate and pressing so that he had to take the action which he did take.

In this case, the captain of the submarine did not make good his case. He was found guilty of a war crime, and was shot. It was stated that he told his officers and men that he was doing what he did so that all traces of the submarine might be lost. He maintained that he followed the course of action which he did follow for the safety of his crew and of his vessel; that his object was to prevent any trace of the submarine's whereabouts being left visible. That was the captain's excuse. He did not plead that he was acting under superior orders. He said clearly that it was a case of the lives of the survivors of the steamer, as against the lives of his crew and the safety of his ship. If he could have made good his excuse, his order for the firing on the survivors would not have become illegal. Those who carried out his orders could not tell what the pressing need was. He was their leader, the most experienced officer on the submarine, and it was he who formed the view of the absolute necessity for the order. He died, and died well. He did not attempt to hide under the plea of superior orders. He took full responsibility for the order given, and he supplied the names of those to whom he had given a direct order to fire on the raft.

The next officer was a young man named Hoffmann, a sub-lieutenant who had just been promoted lieutenant, who was in charge of the machine guns and small arms. It was to him the captain gave the order to have these brought up on the bridge. That boy was one of the officers who had interrogated the survivors, and when he parted from them he said to them that the English would be able to pick them up in the morning. He knew nothing about what was intended. Afterwards, he went on the bridge and was ordered to mount the guns, and he did so because it was his duty to do so. An officer took a gun and by the captain's direct order opened fire on the raft. The captain admitted that when he gave that order he knew that at the time it was the last hope for the survivors of the wreck, but he thought it was necessary. One of the guns jammed, and this young officer came forward to clear the gun, which was in the hands of an amateur. It appears that this action was held against him. But what young officer would not do that? He was in charge of the guns, and when he saw one of them was jammed he went forward to clear it, because it was a reflection on him. Any young officer worth his salt would have done the same. The captain, seeing him with the gun in his hand, then ordered him to fire on the wreckage, which he did. He told the court: I received a direct order from the commandant that I was to fire. I had full confidence in the commandant, who had great experience through the whole war. I could not brine myself in any case to disobey orders and set such an example to the crew of my ship. I think those answers did the boy credit. He was sentenced to death, and was shot.

The next officer to be tried was the doctor. I shall not say much in his case. He was, of course, protected by German laws front using weapons of offence, and he could have taken shelter under that fact and excused himself. There was no apparent reason why the doctor should have been on the bridge at all at that moment. But he received the order and opened fire with a machine gun. It was his gun which jammed, and it was he whom young Hoffmann relieved of his gun. After all, a doctor is not trained to arms and any young lieutenant who had seen him making a mess of the gun would have jumped forward to put it right. The doctor was sentenced to death, but he might have been spared the homily on the protection which the Geneva Convention gives to doctors. There is no apparent protection in naval battles, and in submarines it does not exist at all. It would have been much more human to consider that the doctor was one of sixty young men cooped up in a submarine.

The next officer was an engineer lieutenant. When the captain first gave the order, this lieutenant went to him and objected. The captain said, "I am determined to eliminate any wreckage and will have my order carried out." The engineer accepted that as an order and went on with his own work. Later in the night he came on the bridge and saw a blue-jacket using a gun. He pushed him aside and took the gun from him and fired. He was on the bridge of his own volition; there was no direct order to fire; and he gave in court the fantastic reason for having taken the gun from this young seaman that the young seaman had an illegitimate child. This officer was condemned to imprisonment for life.

The last man was a boy still younger, of nineteen years of age. He went on duty on the bridge at midnight, and found himself close to the captain and among a group of officers. The captain told him to start firing, which he did. The boy was on the bridge because he went there on his duty and he obeyed the orders of the captain when he was there. Firing had been going on for some time before he got to the bridge; it went on about two-and-a-half to three hours in intermittent bursts, so that he might have thought, if he had thought about it at all, that there would be nobody left on the raft. In any case, there is no proof at all that he did shoot anybody. He had his gun taken from him by an officer. He made no attempt to go back to the gun but went to his duty on watch. He was sent to prison for fifteen years. I suppose that might be considered rather a "let off", when three others had been sentenced to death, but those were older men and officers, with better education at naval colleges and they must have heard something about the Geneva and The Hague Conventions. I am perfectly sure this boy had heard nothing about those things. He was trained militarily in a country where great stress is laid on obedience to orders, especially in the presence of the enemy. Yet this boy received a sentence of fifteen years' imprisonment. I was interested in what the noble Viscount, Lord Simon, said during the debate held in this House not long ago on the flogging of criminals, about a young man of seventeen years of age sentenced to ten years' imprisonment. The noble Viscount said that when that man came out his whole life would be spoiled. There is a difference between fifteen years' imprisonment for a German boy trying to do his duty as he sees it by his country at war, and some of these young brutes who attack an old man or an old woman with a cosh and take their savings. In this case, I prefer the German boy.

That is how it stands. This boy has been given fifteen years' imprisonment, the engineer-lieutenant imprisonment for life, and three others have been shot. I suggest that it would have been quite enough to have shot the captain who gave the order and rightly took all the responsibility for it, and not pursued this further down the scale. Consideration should be given to the conditions under which these men acted, particularly young Hoffmann and the boy seaman, who were on their first voyages, who were serving for the first time on a submarine, and who were taking part in action for the first time and were naturally rather excited. Of course, there must be a trial to find out the guilt; but could not these young men who were acting under military orders be placed in a different category from those who commit brutal and beastly crimes like those on the list read out not so long ago by the noble and learned Viscount the Lord Chancellor? The tortures and punishments given in concentration camps are of quite a different character from the actions of these young men acting under military orders. Of course, if they are found guilty of exceeding orders, then they have "had it"; but these young men carried out orders when there was no alternative but to obey. In cases where a man merely carries out orders directly, I would suggest that, if he has to have a punishment, it should be a light one, to mark the displeasure of the authorities, and nothing else. If, however, he goes to the extreme; if a young officer were told to take some men out and shoot them and, like one Japanese officer, gives his men bayonet practice on them, then that is a different matter. I put this matter forward as I feel I am acting in the interests of young officers and other ranks and ratings who receive orders in the stress and strain of battle and in an emotional atmosphere.

The rules that govern the laws of war must be overhauled soon—many of them are as dead as the Dodo. For instance, it is still said that a military target in close proximity to military operations is not to be bombed if it cannot be done without hurting the civilian population. Further, a submarine is ordered to come to the surface to warn a ship that it is going to be torpedoed. It has to see the crew taken out and put into a place of safety—and ships' boats in most cases are not places of safety. With submarines acting under the water and aeroplanes in the air now forming the primary weapons of war, how can one expect those rules to be carried out? My purpose now is merely to ask that when the rules are overhauled the situation of young men belonging to the Armed Forces should be given consideration. After all, every country now has to send the flower of its youth to war. Ought it not to be one of the chief objects of international law to see, so far as possible, that they are protected from fortuitous dangers? I do not know who is responsible for international laws, but I feel that if the British and Americans again came together they could probably get these rules altered to suit their wish; and the fair law would be as laid down in the Manuals originally—namely, that the men who give the orders shall be punished, but not those who serve under them and carry out those orders faithfully. I beg to move for Papers.

3.23 p.m.

THE LORD CHANCELLOR

My Lords, I am bound to say that I find myself in complete and absolute disagreement with the noble Earl who has just spoken. It seems to me that the doctrine he enunciated is nothing less than the fuehrer prinzip. Suppose that the commander of this U-boat had said: "Well, I was given my command to do this by Admiral von Doenitz, and I did exactly what he told me to do." The noble Earl's reasoning would lead him to say that the commander of the U-boat was responsible. If Admiral von Doenitz had said: "I was given my command directly by Hitler," the same reasoning would inevitably lead to the result that Admiral von Doenitz was not, and Hitler was, guilty. As I understand it, that is the fuehrer prinzip. That is the doctrine whereby you lay down yourself, all your moral ideas and everything else, absolutely to the control of one man, rendering to him, not merely "those things which are Caesar's," but those things which every man must in the last resort judge for himself.

The actual details of this crime were, to my mind, absolutely deplorable. A ship was torpedoed in the middle of the Atlantic, and no doubt it sank very shortly afterwards. Two survivors were taken on board the U-boat for interrogation. They were both put back on a raft afterwards, one of them having been deprived of the lifebelt with which he came on board the U-boat. The U-boat then went away but came back and hailed the survivors on the rafts through its hailer to come closer. So they came closer. Thereupon the men on the U-boat started lobbing hand-grenades upon these unfortunate survivors and machine-gunned and killed all except three; two of them managed to survive on the raft in the most extraordinary way, although by that time their wounds had become gangrenous, and one later lost both his legs. There was some commotion and disturbance on the U-boat, as the men were obviously horrified by the order which they were given. The commander of the U-boat had to address them through his loud-speaking machine to explain to them that, hard though it seemed, it was inevitable to do these things, and that, after all, our airmen were bombing women and children in Berlin. Those are the circumstances of the case.

The various people who took part in this shooting were tried. As to the law, the rule of law is quite plain. In the year 1907 the Geneva Convention provided: After every engagement the two belligerents shall, in so far as military interests permit, take steps to look for the sick, wounded and shipwrecked, and to protect them, as well as the dead, against pillage and improper treatment. In the year 1921 the same question arose at the Leipzig Trials. They were trials for war crimes of the First World War, tried before German Courts, in regard to a ship called the "Llandovery Castle." In that case the U-boat attacked and sank a hospital ship, and then attacked and drowned the survivors. The German Supreme Court—I stress the word "German"—convicted the two officers of homicide, and in its judgment laid down as follows: The firing on the boats was art offence against the law of nations. In war on land the killing of unarmed enemies is not allowed; similarly, in war at sea the killing of shipwrecked people, who have taken refuge in lifeboats, is forbidden. In complete disregard of that doctrine, in the case we are now considering, the U-boat came up and spent something like five hours among the unhappy survivors of that wreckage. At the trial there was called for the defence of the captain a U-boat officer named Schnee. He was asked this question: What would you have done if you had been in the captain's position? His reply was: I would under all circumstances have tried my best to save lives, because that is a measure which was taken by all U-boat Commanders. But when I hear of this case, then I can only explain it as this, that Captain Eck, through the terrific experience he had been through, lost his nerve. He was then asked: Does that mean that you would not have done what Captain Eck did if you had kept your nerve? His reply to that was: I would not have done so. These men were tried before a court-martial, the composition of which, in part at any rate, was of distinguished and gallant naval officers, and were found guilty. It is not part of our task to re-try that case. I would say here and now that it was inevitable that they should be found guilty. I think three of them—certainly two—were ordered to be shot, and they were shot. Two of them are in prison at the present time. One of those two who, in the first instance, declined to have anything to do with the shooting, was sentenced to penal servitude for life. Penal servitude for life means twenty-one years; and twenty-one years, assuming there is good behaviour, means, in practive, fourteen years—he has one-third remitted. This sentence dates from 1945, and the fourteen years will run from then. The other and younger man had a sentence of fifteen years. All these sentences have recently been reviewed by the United Kingdom High Commissioner in Germany. That on the last man that I mentioned has been reduced to ten years, and he also, assuming that he earns his remission, will come out after two-thirds of that time—that is to say, some time in 1952.

I want to add only this word. It has often been said: "What a difficult position the soldier has been placed in, because if he disobeys the order of his superior officer he can get into trouble, and if, on the other hand, he shoots when there is no proper occasion for his shooting and kills somebody, then he is guilty of murder." That is the law, and that has always been the law. Of course, that law is applied—as I hope all our laws are—in good sense, and I should like to read to your Lordships what the Judge Advocate said with regard to this young man in the course of summing up this case on this very point. He said: It is quite obvious that no sailor and no soldier can carry with him a library of international law or have immediate access to a Professor in that subject who can tell him whether or not a particular command is a lawful one. If this were a case which involved the careful consideration of questions of international law, as to whether or not the command to fire at helpless survivors struggling in the water was lawful, you might well think it would not be fair to hold any of the subordinate accused in this case responsible for what they are alleged to have done. But is it not fairly obvious to you that if in fact the carrying out of Eck's command, involving the killing of these helpless survivors, was not a lawful command, and that it must have been obvious to the most rudimentary intelligence that it was not a lawful command, those who did that shooting are not to be excused for doing it upon the ground of superior orders. That was the direction which the Judge Advocate gave to the Court, and I think we may assume that the Court, composed as I have indicated, applying their common sense to the matter, came to the conclusion that this was no nicely or finely balanced question of international law. This was a gross and obvious breach of international law and, if I may say so, shocks one's idea of the great traditions of the sea.

I have nothing more to say. It is not for us to review these cases. It is for us to see that the trials are conducted in the most scrupulously fair manner, as this trial was. It is for us to be satisfied that there is ample reviewing machinery. There is such machinery, and a review has taken place. I venture to think that if we do more than that we are stepping outside our province, and we are not really assisting the administration of the law. For those reasons I am bound to say that I cannot accept the Motion of the noble and gallant Earl. It only remains for me to add this. I do not know at what time this peccant paragraph got into our Manual of Military Law, but I am pretty certain that no one ever suggested that Eck, the Commander of the U-boat, had ever seen or consulted our Manual of Military Law. However, this paragraph was taken from one of the early editions of Oppenheim—the great authority on international law. When Oppenheim brought out a new edition correcting the previous error, a corresponding correction was made in the Manual of Military Law. The Manual of Military Law is in no sense an authoritative work, and that which I have described to your Lordships as the law has been the law ever since I was born, and a great deal longer than that—there cannot be any question about that at all. In those circumstances, I cannot accept the Motion of the noble and gallant Earl.

3.35 p.m.

LORD SALTOUN

My Lords, I should not like this debate to go by without saying that I stand by my noble and gallant friend Lord Cork in the principle that he has advocated. I was once ordered to be shot myself for no reason at all, but the last thing that ever entered my head was to blame the unfortunate subaltern who was required to carry out the duly. That subaltern, by a trick which I do not think I would have ventured to play had I been a subaltern, managed to save my life, for which I was grateful; although I never had a chance of expressing my gratitude. It seems to me that the principle for which my noble and gallant friend is speaking is a sound one. It is hard to apply difficult parts of English common law to international law, and I do not know how we really stand in the matter. If my memory is correct, we tried a young officer and broke him for refusing to carry out an order which he thought was an improper order. If we do that, it seems to me that we cannot have it both ways. That is all I wish to say to your Lordships, but I wish to go on record that I stand by my noble and gallant friend Lord Cork.

3.37 p.m.

VISCOUNT MAUGHAM

My Lords, after having heard the speech of my noble and learned friend on the Woolsack, there is only one thing which I think it necessary for me to say. After all, this is a matter which is entirely nonpolitical, and which must touch a chord in everybody's breast, because it is perfectly plain that the younger members of the Forces have no moral choice as to whether they obey an order or not.

The point upon which I venture to think my noble friend's memory has misled him is about the length of time and the circumstances attached to the inclusion of the positive rule, in very clear language, in the Manual of Military Law. It was not, I think, by an accident that it got in. I think it was carefully considered and it was certainly in, if I may trust my memory, for over twenty years. This matter was brought to the attention of the Birkenhead Committee, which sat quite a long time ago. I have not brought any papers with me, and I am afraid that my memory is not as good as it once was, but I am fairly sure that the substantial facts are these. The Birkenhead Committee objected to the rule which we are now discussing, and I am almost certain that it was in the year 1942 that it was struck out of the Manual. I am so inclined to be confident that I have stated the facts rightly on this point that I am a little surprised that my noble friend on the Woolsack has not a recollection of those curious facts. They were much discussed amongst jurists, and a full account appears in a recent book. I will not go into the details because I have not brought them with me and I am afraid of misleading your Lordships.

In the circumstances which I have mentioned—assuming they are right and, of course, they can easily be checked—I venture to think that it would be a fair thing to reconsider the position of the prisoners who have not lost their lives. A principle of that kind, which seemed right to so many people here—namely, that a man was bound to obey the order of his superior officer, and that therefore the rule did not apply in cases where there was a direct order—leads one to suppose that there is a strong feeling in favour of the principle as it stood, even though it was wrong and most dangerous. While condemning, as I think my noble friend Lord Cork condemned, in the strongest possible language the behaviour of the captain (I say nothing about his officers of commissioned rank, who were perhaps able to stand up to the order of their captain) I think that when it comes to a newly-serving officer in a ship it is rather strong to inflict on him such a punishment that his life is entirely ruined, if the circumstances that I have mentioned with regard to our original view of the appropriate rule are correct.

3.41 p.m.

THE MARQUESS OF SALISBURY

My Lords, I had not intended to intervene in this debate, but in view of what has been said by several noble Lords I feel that I must express my own views, which I believe represent those of the great majority of your Lordships' House. I would say to the noble and gallant Earl, Lord Cork, that I deeply respect the high motives which have inspired him in bringing this matter forward. There is no doubt that what he had in mind was the traditions of the great Service in which he played so distinguished a part, and the very difficult position in which sailors serving in a naval force must often be placed. I am sure that nothing but that was in his mind in raising this subject.

But I must say how profoundly I disagree with him. If he will allow me to say so, I was deeply shocked by what he said. After all, what was this case? The ship was a merchantman; it was not a ship of war. It was going about on its lawful occasions in the very centre of the Atlantic, on the high seas. It was sunk by a submarine. It may be said that in total war there was no such thing as peaceful occasions; but this was as near to one as you could possibly get. And these unhappy merchant sailors were slaughtered. The noble and gallant Earl, in the whole of his speech, never mentioned the people in the water. His whole attention was devoted entirely to explaining what were the difficulties in which the commander and his subordinates in the submarine found themselves; but there was no word about the men in the water. Surely we must think of them too. If he will allow me to say so, he excused the position of the captain by saying that he acted no doubt from what he regarded as military necessity; and he seemed to suggest that that was a very real reason which must be taken into account. There might, for instance, have been danger to his ship, and so on, and one must recognise that. But a plea of military necessity might be held to justify the most appalling actions. Take, for instance, the case of an army advancing into a hostile country, the commanders being very anxious to deal with any rebellion behind their lines. This plea might be held to justify taking a thousand men, women and children and shooting them out of hand, to terrorise the rest. Anything might be justified by the plea of military necessity, if that be regarded as the paramount consideration.

THE EARL OF CORK AND ORRERY

May I be allowed to interrupt the noble Marquess? I did not excuse the captain. I said it was a flagrant act and I agreed with the punishment he received; but I pointed out that that punishment should have expiated the crime.

THE MARQUESS OF SALISBURY

I am very sorry if I misunderstood the noble Earl. I have no desire whatever to misrepresent him. But supposing a sadistic commanding officer or soldier ordered his subordinates to torture a dozen children: can anyone conceive that that would be justified? It is not merely military or international law which would prevent them from committing such a crime, but the very basis of our civilisation itself. If these men were in doubt I think they would have been right to have faced being shot themselves rather than take any action of the kind which they did take. Whether any of us would be able to stand up to that test it is not for us to say; but there is no doubt that morally that would have been the right thing. It is not the same as the killing of innocent persons by bombing, for instance. It is different because the objective of bombing is usually a military one, and you cannot destroy that legitimate objective, without destroying also what is not military. But when you can differentiate, then it is an obligation in honour and decency to do so. It is for that reason that international law exists at all. It is the very basis of civilised life. If we lower that standard I believe that all civilisation would soon pass away.

3.46 p.m.

LORD WRIGHT

My Lords, I am very reluctant to intervene in this debate, and I have little to say after all that has been said already. I well remember the "Peleus" case because I attended as an observer at the greater part of the trial; and hearing the evidence and observing the general attitude made a deep impression on my mind. What happened, reduced to simple terms, was simply a case of cold-blooded, unjustified and irrational murder. These wretched Greeks and a few Englishmen swimming about in the water were machine gunned and destroyed with grenades in a most bloodthirsty way, which shocked even the crew of the U-boat, for the bulk of them, according to the evidence, went down below when they heard what was going to happen. I do not want to go into that now. We have heard the summary of the position given by the noble and learned Viscount on the Woolsack. I need not add to it, and I do not desire to qualify it in any way. I merely want to point out that in the interests of civilisation—so far as there can be civilisation in war time—it is essential that conduct such as that of Captain Eck and his subordinates should not pass unpunished. It is essential that international law should be justified and upheld. Although I sympathise with the manifest and laudible desire of the noble and gallant Earl to treat everybody as reasonably and kindly as possible, there are limits. Justice must be done, and the instincts of law and the rules of international law must be vindicated. I do not know what course is suggested by the noble and gallant Earl. The matter is, of course, in the hands of the Commander-in-Chief, who, I understand, has already reconsidered and reduced the sentence, and, strictly speaking, we have no jurisdiction to express any view at all about it. I must say that, on the whole, we should be ill-advised to intervene quite gratuitiously in this matter.

3.50 p.m.

THE EARL OF CORK AND ORRERY

My Lords, I feel I must say a word in self-defence. I stated at the beginning of my remarks that I felt I was on dangerous ground. I knew that I should be misrepresented, or at least that there was a possibility of that happening, although I hoped not. However, I feel that I have indeed been very much misrepresented. I do not excuse the act. I wanted the captain shot, and I was glad to see it done. I pointed out that it was a case in which the excuse of "operational necessity" might be taken. However, the court was not convinced and, quite rightly, the captain was shot. In my opinion, in spite of what I have heard, I think that that death should have expiated the crime, that the boy of twenty-one should not have been shot, and that the boy of nineteen should not have been sentenced to a long term of imprisonment—fifteen years. It has now been reduced to ten, so there was something wrong about the sentence.

I am sure that the noble and learned Viscount on the 'Woolsack did not mean to misrepresent me, but I feel that he did so very much. As for that edition of Oppenheim, I never did consider that it had any bearing. I said that the dictum that the giver of an order was held responsible, and not the men who carried out the order, was acknowledged by a great many lawyers and other people for many years, so they must have believed it to be correct. They never pointed out the mistake in the past. A great many members of your Lordships' House have seen active service. If you can imagine yourself on that submarine at the age of twenty-one, standing up and arguing with your commanding officer about what was said at The Hague in 1921 and 1926, you are very much braver than I was at that age. I feel that the law in that respect requires alteration.

My object was to plead on behalf of the young officers and men who are placed in an impossible position. What may be done during and after a great battle in the jungles of Malaya or Burma, or in Africa, or even in a submarine, where everybody is against you and you are a long way from home, is vastly different from what may be contemplated in a comfortable council room at The Hague, discussing what should be done if a man misbehaves himself. I have heard two opinions which as a rule I value very much, but I am not in the least convinced by them to-day. I think it is a grave injustice that a man of twenty-one or twenty-two should be given fifteen years' imprisonment, or something like it. I ask that the law should be reconsidered. As for saying that I approve of the action taken, I do not approve of it. I beg to withdraw my Motion.

Motion for Papers, by leave, withdrawn.