THE MANUAL OF MILITARY LAW

HL Deb 14 May 1952 vol 176 cc956-1012

2.45 p.m.

THE EARL OF CORK AND ORRERY rose to move to resolve, That in the opinion of this House the principles laid down in Chapter 14 of the Manual of Military Law should be reconsidered by a competent tribunal before the publication of the revised edition. The noble and gallant Earl said: My Lords, it may be remembered that on July 19, 1950, a Division took place in your Lordships' House upon a Motion which asked the House to agree that an Amendment which had been issued in April, 1944, to Paragraph 443 of Chapter 14 of the Manual of Military Law, which deals with the laws and usages of war on land, was inimicable to military discipline, unjust to officers and men of the Armed Forces when serving under Active Service conditions, and should be revised. That Motion was defeated in a House of about fifty Peers, by two votes—21 against and 19 for, several noble Lords present abstaining for various reasons from voting. I do not in the least apologise for reviving this subject, and I do so for two reasons: first, because it has become apparent that there is a large body of opinion, including several distinguished legal lights, who do not agree with the verdict given on that occasion. In this connection I was interested to read a well-known legal publication, Volume 7 of which came out at the end of 1944, after that Amendment was published. After discussing this question, and having given certain pros and cons, it ended up by saying: Justice on the whole tends to the view that war crimes must not be charged on individuals. This conclusion was almost entirely based upon the injustice that would be inflicted on officers and men of the Armed Forces if they were to be charged in this way.

My second reason for raising this matter again is that in the previous debate, no doubt owing to my own ineptitude, it became apparent that some noble Lords who spoke against the Motion did not quite understand what it was aiming at. We were told, for instance, that the right course was not to alter the law, but to administer it wisely. There was no question of altering the law, and no question of administering it wisely. It is not we who interpret the law in such cases, but our enemies. The great objection to the Amendment is that in certain cases it hands over justice, or the administration of justice, to our enemies. Again, we were told that in this country one could hardly conceive an officer on active service giving unlawful orders. Well, my Lords, if we think that, we live in a fool's paradise. When you consider the vast body of men from this country, and men from other parts of the world who, come over here—as especially they came during the later stages of the war—do you not think that there may be some black sheep among them?

However that may be—and I have no doubt that it is true—we can conceive of Communist officers charging our officers with giving improper orders. In fact, they are doing that at this very moment in Korea. They are charging United Nations officers with crimes that we know perfectly well they have never committed. The next stage will be—in fact it has been happening already—that they will manufacture the offences, and then United Nations pilots will find themselves charged with scattering germs about. They may be shot on sight, and we shall be able to do nothing. Then it has been said that the judges of this country are not divorced from common sense. Whoever suggested that they were? Nobody ever suggested it. But they are not immediately concerned. Can we say the same for Communist judges? If Communist judges possess common sense, are they allowed to use it? It is they who matter, for it may be before them that our men will have to appear. The whole object of the Motion was to try to keep the trials of our men ii our own hands, and not to legalise their trials before the set of scoundrels with whom we are now engaged in war and against whom, it seems, we shall be fighting for many years to come, perhaps on a far greater scale than at present. It is against a background of what an enemy may do that I ask your Lordships to consider this Motion.

I am not going to try to attack the Nuremberg Treaty or the great war criminal trials. I will try to deal with the case of the ordinary man fighting for his country in time of war in the Army, the Navy or the Air Fore of this Empire. Your Lordships will understand that when I use the word "soldier" I mean it to include airman and sailor where it applies to them. Indeed, I think that airmen are, perhaps, the ones who more greatly need to be protected than any one else, because the vast distances over which they fly increase the chances of the officers and men of the Air Force falling into the hand; of the enemy, perhaps in small bodies and perhaps as single individuals.

To put the matter shortly, so as to avoid what, in the Committee stage of the Army and Air Force (Annual) Bill, the Lord Chancellor called "going back over old ground," I would remind the House that the rule which it was considered necessary to amend as the war was entering its last year was one which gave protection to officers and men when on active service and acting under orders from being charged as "war criminals" and so becoming liable to trial and punishment by the enemy. It should be mentioned that in practically all civilised countries the counterpart of our Manual of Military Law had a protection clause for their officers and men in almost the same language as ours, and that had stood from the year 1914, and, possibly, considerably before that. By universal consent, soldiers fighting were exempted. Now we have abolished that exemption, and our men if captured are liable to be treated as "war criminals" at the whim of our enemies, for the Amendment was a complete reversal of the protective paragraph. It not only cancelled it, but it actually declared that the reverse was the law, allowing only that acting under orders might be considered in extenuation. The Amendment not only removed what protection there was, but went further and forced upon all those serving under orders the obligation of using their independent judgment concerning those orders, and brought them as individuals under two laws: international law and the military law of their own country.

It is not, however, my intention to argue whether the new version of a soldier's duty is right or wrong, but to put forward the view that if it is to be accepted then a most careful review of all the implications involved is necessary and should be conducted as speedily as possible by a competent tribunal which should have the power to modify certain details to bring them into line with modern conditions. The circumstances under which the Amendment appeared arc, to put it mildly, somewhat peculiar—they can be followed by a study of the History of the United Nations War Crimes Commission. We are told it was based upon a Memorandum written by Professor Lauterpacht and is given in these words: During the Second World War opinion developed strongly against these rules, and criticism was repeatedly expressed of them in the international bodies. English writers, such as Professor Lauterpacht, observed that the British Military Manual had no statutory force and could therefore be amended in the face of new developments. I repeat those last two words—"new developments."

If that was so then, what is the difficulty about having a proper examination of these rules now, for I think it must be admitted that conditions have altered very much and have developed very differently from what we had hoped. They are very different now from the rosy prospects of 1944, when we were going to be one of the Big Four under whom, when victory was gained, the world was to bask in peace. It is quite true that Professor Lauterpacht had earlier expressed some doubt as to whether the law on the subject of "superior orders" and as to individual responsibility had been correctly interpreted by the orders in question, and being on the Commission he was, of course, well situated to put forward his views. Indeed, the fact that he held those views may possibly account for his being there. But be that as it may, his views happened to fit in with the needs of the moment, and at that time his colleagues and fellow internationalists would have been predisposed to accept his views. Suggestion is a powerful force, more particularly when it discloses an easy way out of a difficulty, and perhaps that subtle influence may also to some extent have been responsible for Article 8 of the Nuremberg Charter.

The truth, I imagine, is that with victory at hand those who were preparing for the War Crimes Trials were somewhat dazzled by the bright prospects of peace: they did not reflect that history might repeat itself and the victors fall out. The fact that no endeavour was made at that time to impress on the men at the front their added duties and responsibilities would seem to show that it was then considered a temporary expedient. Now it has remained so long the change has got to be justified. Evidently, little thought was given as to how possible reactions might affect our own men, and perhaps, in the circumstances which existed at that time, that is understandable. For the object at that time was to get rid of any obstacle that might impede the proper bringing to justice and punishment for crime of enemy criminals. By 1943 it was obvious what the result of the war would be, and it was once again believed that our victory would end war, or at least ensure peace for a very long time.

The view I wish to advance is this: that if the present ruling is to stand, in view of the added responsibility placed upon officers and men of the Armed Forces, the laws that govern their actions when on active service should be clearer and more precise than they are at the present time; that there should be an overhaul of what are listed as "war crimes"—which are now covered by vague generalities—and that in their place something precise should be laid down. I submit that a clear distinction should be drawn between actions committed by men actually in close fighting contact with the enemy and those committed by others not so close to the front, men sitting back who have time for deliberation, men well away from the turmoil and living under different conditions from those in the battle line.

I think that every officer and ex-officer in this House will agree with me at any rate in this—that in a battle area, whether on sea, land or in the air, the duty of every man is to carry out his orders as efficiently as he can both mentally and physically. There should be no risk of any one being troubled, subconsciously or otherwise, by doubts as to whether, by so doing, he is laying himself open to future charges of being a war criminal if he should fall into the hands of the enemy. Let that sort of doubt once creep in, and it starts to undermine morale. It is that sort of doubt which tends to drive a wedge between officers and men. Officers may be doubtful of what the men will do, and men may be doubtful of what their officers may order them to do, when this possibility of punishment hangs over them; and that doubt must increase as the situation becomes more desperate. As the time came when they were near to falling into the enemy's hands, the doubt would necessarily grow stronger. It is monstrous to place officers and men in such an equivocal position.

Surely it is not beyond the powers of those who draft our laws to produce some satisfactory discriminating formula which would provide protection for our men should they fall into the enemy's hands. In the autumn of 1950 it was stated that a new edition of the Manual of Military Law would appear in the summer of 1951. As nothing happened, hopes were raised that perhaps, after all, there was going to be an overhaul and a revision of Chapter 14. These were dashed to the ground when we were told that the distinguished international lawyer who was re-writing the chapter was Professor Hersch Lauterpacht. I suppose that in a short time a new edition will appear and we shall be told that it has been carefully revised by Professor Lauterpacht and that Professor Lauterpacht agrees with the views of Professor Lauterpacht!

This matter is one of direct interest to the fighting Forces, whom the Manual purports to instruct, and I submit that it is wrong that any one lawyer, however pre-eminent he may be, should be entrusted with the task of re-writing this important chapter in this important book. Surely it should have been done by a properly qualified tribunal or commission, composed not only of lawyers but also of up-to-date soldiers, sailors and airmen. Nearly all the paragraphs dealing with technical matters are hopelessly out-of-date; and after all it is the soldiers, sailors and airmen, and no one else, who can look after the views and interests of the men under their command. It has often been said that a law should not only be just, but should appear to be just. I have not the honour of knowing Professor Lauterpacht and I mean to show no discourtesy towards him, but I do not think that rules as revised by him will be warmly received. I very much doubt if he is the right man to employ for this work. No doubt the Professor has performed, and will perform, valuable service for his adopted country, but we have to face things as they are, and I am sere that as a rewriter of the rules governing the actions of the British Forces under active service conditions, he is out of place. If we want the Services to accept the new version of their duties and responsibilities, I think these ought to be presented to them over names that they know and trust. I should have thought that it was perfectly possible to get a British or Dominion international lawyer to look after the interests of the British people.

In the last edition of the Manual dated 1936, are these words: Improvements which science might effect in the armaments of troops would need consideration at some future date. And Lord Wright says: I desire to take the opportunity for urging a revision of The Hague Convention relating to war on land,"— the sea affair has been strangely passed over— nor has the law of reprisals been defined, Many other problems will occur to the statesman and student. I know we cannot run The Hague Convention on our own, but we can be ready with a thought-out set of rules to present as the British and Dominion contribution to any future international deliberation. This, in itself, would go a long way towards getting the British view accepted. It would enable us to bring out our up-to-date Manual for the instruction of officers and men, who cannot now get a Manual of the rules under which to fight if they go abroad. It would also make known to the world the lines which we mean to adopt.

I hope this Motion will commend itself to your Lordships. It asks no more than that these questions shall be reviewed by a competent tribunal before being finally accepted. In the present state of world affairs, any international conference on these matters must be something in the distant future. Much may happen before any such meeting can take place. The question is much too important to be left in the air. It is a matter of interest to everybody, not only to those fortunate to be young enough and physically fit to rally to the Colours, but also to any who have an interest in any young men who may be called upon to serve in defence of the country. If such a tribunal as is suggested decide to maintain the present rules and regulations, well and good. We shall at least have the satisfaction of knowing that the matter has been carefully considered at a time well removed from that period when, after five years of war, everybody was inevitably slightly unbalanced, when considering these questions. I beg your Lordships' support, and I beg to move my Motion.

Moved to resolve, That in the opinion of this House the principles laid down in Chapter 14 of the Manual of Military Law should be reconsidered by a competent tribunal before the publication of the revised edition.—(The Earl of Cork and Orrery.)

3.5 p.m.

LORD WILSON

My Lords, I should like to put to your Lordships certain points in relation to the Motion before the House from the point of view mainly of the Army, though I feel that the Royal Navy and the Royal Air Force are concerned to possibly a greater degree. Since the discussion in your Lordships' House in July, 1950, on the individual responsibility of junior officers in relation to breaches of the Geneva Convention of 1949, to which the Amendment of Paragraph 443 of the Manual of Military Law refers, there has been created no little concern and doubt amongst officers of the three Services This has been borne out by attendance and questions at lectures given on this subject.

The 1949 Convention calls for the trial of those accused of grave breaches of its rules committed against persons and property. It is also accepted that the responsibility extends down to junior officers, even if they are carrying out the orders of a superior. The Convention mentions "military necessity" in relation to the destruction or appropriation of property, but not in relation to the handling of civilian persons. This is, in itself, contradictory, because, if it were found necessary to clear or flood an area, the civilians would have to be transferred elsewhere. A case in point occurred at Suez a short time ago. The Amendment to Paragraph 443 of the Manual of Military Law mentions acts forbidden by international law and crimes against humanity, but makes no mention of military necessity. This strikes one as ominous. The scope thereby given to any charges that might be preferred is extremely wide, especially as participation in a war is considered by many to be a crime against humanity. Therein lies the possibility of bias or prejudice from the start.

It has always been an axiom that during operations a commander can take any action which he deems reasonable for the safety or security of his command. It may well be that he may have to act contrary to the Articles of the 1949 Convention. As things stand, a junior officer ordered to carry out certain acts may refuse to do so, and thereby lay himself open to disciplinary action. Can he plead that the act ordered had no military justification? Is he to be the judge of what constitutes "military necessity"? He cannot know all the considerations which caused the issue of the order in question. It is evident that a controversial element exists in the interpretation of the laws of war and it would appear from recent publications that eminent jurists are by no means unanimous on how to define and deal with war crimes. Such conditions cause nothing but uncertainty and bewilderment it the minds of junior officers and, at the same time, embarrassment to superior commanders

Should we be so unfortunate as to get involved in any future war, one cannot expect the same pattern in its development as in the last. Psychological warfare is sure to play an important part. The morale of our Forces will be one of the enemies' main objectives, both by means of propaganda and the tactics of infiltration through fifth columnists into all ranks: opportunities will be taken on mobilisation and expansion to achieve this. The creation of the opportunity to dispute certain matters plays straight into the hands of any disloyal or traitorous element, presents an opening for agitators to undermine discipline and provides a stepping scone to mutiny. I can assure your Lordships that mutiny is the most difficult and worrying situation with which a commander can be faced. I myself have had experience of more than one, but I am thankful to say that they did not occur with English-speaking troops.

The record of the conduct of our three Services in the wars of this century stands high as regards keeping the rules of war and acting in a chivalrous manner. So much so, that our enemies have at times taken advantage of those qualities—I have only to mention cases of abuse of the white flag, and the driving of women and children in front of advancing troops when attacking our positions. Surely, it is only fair to those who may have to fight for their country that they should be allowed to go into action with their morale high, and also with leaders unhampered by having to consider all the time whether they are running the risk of committing crimes against humanity. The field is so wide that it may be impossible to foretell what accusations may be brought forward from legal, political, emotional or prejudiced points of view. It has been said to-day that certain legal pundits are busy drawing up rules for our Forces for the conduct of war. Has any of these pundits ever had experience of command in war, either of units or higher formations? A rule which may well be considered correct legally may, under certain conditions, prove impractical in the field. There is also the need to define what a commander can do to secure the safety of his Forces on the grounds of military necessity. Can a legal expert, however distinguished, be competent to have the last word on this matter? The interpretation would have to cover both the zone of operations and occupation of enemy or non-belligerent countries.

I therefore support the Motion before the House, though I have some qualms about the question contained in the words "competent tribunal." It might well be that a very eminent legal member of your Lordships' House or of another place would be appointed chairman of any such tribunal set up, and I feel that that might well lead to a case of what one usually regards as Satan rebuking sin. I apologise if I appear to disparage the legal profession, but they must always remember that the Inns of Court Regiment is always known as the Devil's Own. I hope, therefore, that Her Majesty's Government will see their way to ensure that when the new Chapter emerges from the legal experts it will be scrutinised by those who have had experience of the practical side of war. I also suggest that those who have held independent commands should be asked for their views—I stress independent commands, as it is those commanders who have had experience of the issues involved. I feel that if such an assurance could be given, it would allay the anxiety felt in the minds of serving officers on this important subject.

3.15 p.m.

LORD CHATFIELD

My Lords, I also rise to support the Motion of my noble and gallant friend Lord Cork and Orrery. I agree with all that he said and, therefore, I can curtail considerably my remarks. I should also like to say that I entirely agree with what the noble and gallant Lord who has just spoken said at the end of his speech, that the competent tribunal which my noble friend has proposed might well be more broadly constituted—and I do not doubt that the noble Earl will agree that "competent tribunal" is purely a form of words that he has put into his Motion. So far as I am concerned (and think this applies to most sailors in my position), I should be quite happy if the Board of Admiralty accepted the rules that were drawn up, or criticised or analysed them in the interests of the officers and men of the Service; or, similarly, as regards any other Service, if the distinguished officers who form their Board were to accept the responsibility of examining whatever is brought forward as the right thing for our men to do in future when they are at war.

As the noble Earl has said, two years ago we had a debate on the whole question of whether the wording of the law drawn up by Professor Lauterpacht was right or wrong. This is a much simpler Motion, and we leave the other on one side. After all, I understand that the professor has been re-writing his own words, and we do not know what he is going to say. It may be that he has so met the feelings of some of us in the previous debate that his new proposals may prove quite suitable and innocuous. This is a precautionary Motion, to say that, whatever the professor produces, it ought to be examined by a body of Service officers of sufficient rank, authority and experience before it is imposed on the men whom they command. One of the strongest arguments used in the last debate was that it has always been the case that a man need obey only a lawful command. One argued on that occasion at some length as to what was meant by "lawful command." When the words were first introduced into the Manuals a great many years ago "obeying a lawful command" meant obeying an order which was not contrary to the laws of your country. Every officer, midshipman or ordinary seaman knows what the laws of his own country are. He is brought up on them as a child: the Ten Commandments—not to commit murder, not to steal, and so on. He is educated in school on the laws of his country, and he knows them. It is very different when you impose on him an order which says also, that he is not to obey certain rules which conflict with humanity or with the unchallenged laws of civilised warfare.

The only point I want to make this afternoon is that one of the most important reasons why this matter should go before a properly constituted body is that the whole of international law to-day is in such a muddle, and the rules of humanity even more so; and there are no unchallenged rules of warfare. Yet those two basic principles are at the bottom of all that we have been told stands behind this new law. I feel that it is highly dangerous to meddle with such delicate subjects as International Law, humanity and civilised warfare at the present time, when the world is in such a state of confusion on the whole matter. This matter of military law is neither a national nor an international thing. It is a kind of hybrid. There is nothing agreed in international law to-day about the laws of humanity or the unchallenged rules of warfare; indeed, so far as international law is concerned there is no international agreement about that either. A law made merely by one country and called international law is not international law at all. It is the law of one country, who makes a rule which it regards as a good thing. But the other nations who are going to fight (they may be our allies with whom we may be fighting in line of battle at sea or in military contact on land) may not agree on these international laws.

Therefore, as I said in the last debate, if we want to alter these things and put them on a better basis, the first thing we must do is to try to get international agreements on them. We must lay down our principles, put them to the world and say: "Those are what we stand by, and those are what we shall carry out. We hope you will do the same, otherwise we shall take the necessary steps." International law has been broken times without number, and it has always been broken by Governments and not individuals. It is the Governments who are the culprits, and to leave the Governments in a clean white sheet and to put the onus on subordinates is to my way of thinking a highly unfair and unreasonable proposition. Do our Government intend to carry on war in the spirit of humanity and in accordance with the unchallenged rules of warfare, or are Governments exempt from those rules? Is there agreed understanding to-day as to what is contrary to the laws of humanity? We have been told that if there is a Third World War it will be disastrous to the human race. Only this morning I received a pamphlet—as I dare say did some of your Lordships—from a body who call themselves The Authors' World Peace Appeal, signed by some five hundred distinguished literary men. The first sentence of that pamphlet reads: We believe that our civilisation is unlikely to survive another World War. One hears on all sides the fear that the horrors of a future war will be such that the human race largely will be decimated—or worse. Surely that cannot imply that we are going to conduct war according to the rules of humanity and the unchallenged principles of warfare. There must be something which implies that the war is going to be inhuman. You cannot destroy humanity unless you have inhuman methods of doing it.

Again, what are the unchallenged rules of civilised warfare? I know very few. As the noble and gallant Earl, Lord Cork, has said, in Korea what is called the napalm bomb—the petrol jelly bomb—is being used. Its use is certainly not unchallenged; it has been challenged a great deal on the grounds that this bomb is an inhuman weapon. Therefore, I feel that it is very dangerous at the present time to impose on your men something which imposes upon them responsibility to do nothing which infringes the rules of humanity and civilised warfare. If Governments decide, for instance, to retaliate—as they may have to do: as they had to do in the last war, and did on many occasions—then, if they have to reply to inhumanity with inhumanity, what is the position as to "a lawful command" if the Government break the rules? It is a very difficult position. What is the position of an airman ordered by his Government to drop an atom bomb on a highly populated country in Europe? What is the position of the young officer in command of a submarine if he is ordered by his Government to sink unarmed merchant ships without warning? In the old days, when we were more human, we would not have sunk an armed transport full of soldiers. We should have captured her, saved the men's lives and brought them in as prisoners.

I feel it necessary to know what is the opinion of the Service Departments on this matter. That is what I am most anxious about. I am not more naval than the Lord High Admiral, and I feel that if the service Department chiefs and the soldiers, airmen and sailors who serve with them are satisfied, I am satisfied. But I do not feel that they can be satisfied. I believe that the whole matter is in a state of muddle and confusion and that it ought not to be left as it is. There is undoubtedly a feeling in the Services that the position is unsatisfactory and that a decision is going to be imposed on them without sufficient care for their deep interests and difficulties in all the circumstances of war.

3.28 p.m.

EARL JOWITT

My Lords, I rise to make a very short speech on one particular aspect of this matter. With great respect, I feel that there is danger of confusion of thought. There is confusion of thought between what the law is and what the function of a text writer is. That point was well illustrated, if I may say so, in the last speech. It is not for Professor Lauterpacht to lay down laws. He does not have tables of stone on which he enunciates what the laws are. The task of a text writer is merely to say what he thinks the laws are; and the laws of this country are laid down by Statute and by the interpretation of the judges. It is not for a text writer to alter his text to make it correspond to what he thinks the law ought to be, or to make it correspond to what he thinks is a reasonable law. He has merely to consider what the law is as expounded in that way. I venture to think that there has been some little confusion there.

So far as I am concerned, I have not the slightest objection—the matter does not concern me any longer—to the substantive law being considered in any way you like. But do not blame it on to the text writers; they have nothing to do with it at all. The Manual of Military Law is a textbook. It is not an authoritative work at all; it has no authority. It is a convenient assistance to people who want to read the law; but that is all. Do realise that whoever compiles the Manual of Military Law has to state merely what he believes the law to be, and not to state what he thinks the law ought to be. Although I have the most profound regard for the distinguished officers of the three Services. I venture to think that they would be out of place in editing the Manual of Military Law, stating what the law is, though no doubt their opinions would be of the greatest value in stating what the law ought to be. I think there has been an element of confusion. So far as the Manual of Military Law is concerned, I personally believe that if, as was the fact, the Manual of Military Law did state that obedience to superior orders was a defence to a charge, the Manual was completely wrong. Without any difficulty at all I could show your Lordships opinions of distinguished judges for centuries past demonstrating that that is not the law.

So far as this country is concerned, the law has, I believe, always been that the defence of "superior orders" is no defence if the act is obviously a wrongful act. But, of course, our courts, our courts-martial and our juries have always determined the law in a sensible way. They have realised that you must have regard to the position of a man in a moment of excitement and tension. You must not regard these things as though the man had had the opinion of learned professors sitting round a table and working the thing out. But quite obviously, as I think anybody would agree, there are some things which are so obviously morally wrong that I devoutly hope that it will never be the law in this country—it never has been—that a man can say, "I obeyed orders and therefore I am innocent." There was an occasion in the recent war, as noble Lords will no doubt remember (I think I am right in my facts), when certain French women and children were herded into a church, and some soldier was then told to get a torch and set fire to the church—it was a thatched one—in order that all those people might be burned alive. I rejoice to think that it is not, and never has been, the law of this country—and I devoutly hope it never will be—that obedience to such an order as that prevents a man from being guilty of the crime of murder.

When it comes to international law, of course, that has to be settled by conventions and by treaties, and all the rest of it; and, as the noble and gallant Lord, Lord Chatfield, rightly said, it is not for us to lay down what international law is. I myself should have thought that at this moment of tension through which we are now going it would be exceedingly inopportune to meddle with the matter. But that is entirely a matter of timing, and one for those who know about the situation and who are in a position to judge. But, as I say, I should have thought it would be difficult to imagine a more inopportune time, internationally, than the present to take up this matter. No doubt the noble and learned Lord, the Lord Chancellor, will be able to state the view of Her Majesty's Government. I really rose for one purpose. I ask the noble Earl not to confuse the position of the text writer. The text writer has merely to record the law as he believes it to be; it is not for him to make the law in any way. I think, from the terms of this Motion, that the fallacy is there for all to see. The function of the Manual of Military Law is to expound the law as it is. If you want to alter the law, then by all means get some Committee or Commission, or what you will—

THE EARL OF CORK AND ORRERY

The noble and learned Earl has himself gone over the same ground twice; he has gone through the process of ploughing the same furrow. What is the book, then, to which the Services should refer if they want to know what the law is? Who are those who are to teach us what the law is?

EARL JOWITT

There are many, Lauterpacht is one. I agree that the Manual of Military Law should be as simple and clear as possible, but its function is to declare what the law is and not to state what the law ought to be.

3.35 p.m.

VISCOUNT BRIDGEMAN

My Lords, after what the noble and learned Earl, Lord Jowitt, has said, I think we should all feel that we have had a clear exposition of what the law in this matter is. One thing which may, perhaps, be of concern to some of us who are connected with the Services is that, although it is quite true that whatever is written in the Manual of Military Law, by Lauterpacht or anybody else, is only his attempt to interpret the law as it is, nevertheless, those who interpret the law should have proper regard to the conditions of the men in the air, naval and military service, because that is what the whole thing is about. This came out very clearly in the Courts-Martial Committee, on which I served. It was clear there that it becomes harder and harder, as conditions in the field become more difficult, to devise a form of law which fits into the condition of battle at sea, on land, or in the air. Those of us who have had Service experience feel very anxious that the law as it stands should be interpreted by people who have had experience of active service and battle, and, therefore, that what is written should be related to what is likely to happen under those conditions. I feel exactly as the noble and gallant Lord, Lord Wilson, does, how important it is that this should be brought out in whatever turns out to be the revised text of this chapter of the Manual of Military Law. If that was all there was to do, I should feel exactly as he does and I should wish, like other noble Lords, to support this Motion.

Now let us come to the Motion itself. The Motion calls for a "competent tribunal." If this Motion were to be carried this afternoon it would mean that we should be committed to asking for a separate tribunal to be set up, presided over by some distinguished person and with a Secretariat, if we wanted to spend a very long time over the question, that would be the best way to do it. But I put it to your Lordships that, to achieve the object which obviously is desired by noble Lords such as Lord Wilson and Lord Chatfield, it is not necessary to set up a tribunal such as that for which this Motion calls.

Surely what is wanted is that when the Chapter is drafted in its new form, whether by Lauterpacht or anybody else, it should be carefully looked at by a number of people in all three Services who have proper experience of Service conditions—and, even more, of battle conditions. And, after all, if this Manual is being brought out by the Army Council and the Air Council (I am not sure how much right the Admiralty have in the book) it is the plain duty of the Minister concerned, without any instructions from Parliament, to see to it that the text is examined by experts—I do not mean only legal experts, but people such as commanders and ex-commanders, staff officers, regimental officers, and so forth, who have had experience of battle conditions. These experts, when they have read the draft, will be able to apply their minds to things they know will happen in the field. We all desire that at should be done, but that does not necessarily mean that we should agree to this Motion. I do not think that that is necessary. I feel certain, however, that the Service chiefs will be fortified, in handling this thorny problem, if they know that the text has been revised by commanders and regimental officers, and their counterparts in the other Services, with proper experience of battle.

3.40 p.m.

VISCOUNT MAUGHAM

My Lords, I will detain your Lordships for only a few minutes. The topic that we are considering to-day is one which has exercised my mind for a very long time, in particular in connection with international law, but I am not going to deliver a lecture now. I want to say one word about what my noble and learned friend on the other side said with reference to the Manual of Military Law and one or two other points. I have no doubt that what he meant to say, and perhaps what he said, about the Manual of Military Law not possessing authority, is right; but that needs a little explanation to the layman. The Manual of Military Law has the same authority, as we say among lawyers, as have such books as Pollock on Torts, or Jarman on Wills, or some of those books which have been regarded for a long time as being so correctly phrased and so able in their views that what they say has, in one sense of the word, very great authority. I do not think my noble and learned friend on the other side of the House differs from that opinion.

What he in fact said might be accurate in one sense of the word "authority." The Manual of Military Law, as I know from having read many books connected with the trials of persons for breaches of the laws of war, has been considered on the Continent as being a Statute. I think that that is inaccurate, but it is the view which commonly obtains abroad. From the experience I have gained by reading the reports of various courts-martial or trials under Royal Warrant, I believe those those trials, when concerned with a question falling within Chapter 14 of the Manual of Military Law, have invariably paid great attention to what is therein stated. And they must do, I consider, because there is really no competitive statement of the military law; there is, speaking generally, nothing else in writing to which they can refer. Nevertheless, in regard to what text-book writers are entitled to do and what prima facie an ordinary or a distinguished writer on these subjects is able to say, I entirely agree that they are not entitled to lay down the law. With that I entirely agree.

I want to say a word now on the subject of the competent tribunal. I do not think my noble and gallant friend who moved this Motion meant by that term anything more than that it should be a body to consider the language in which such a rule as that embodied in Article 8 of the Nuremberg Charter should be phrased. Prima facie, I took his words as meaning persons selected predominantly from people who have spent their lives in one of the three Services, with, I am not hesitating to add, perhaps one person or maybe more people who have been accustomed to deal with legal matters of this nature; that this body, which may be popularly described as a tribunal (possibly that is not the correct word) should decide what is the best way of laying down by proper means the principles which should be followed by judges who have to deal with cases of this kind, and to indicate to people, such as members of the Services, who are called upon to act in a moment without the possibility of consideration even for a few minutes, what their duty is in the circumstances of the case.

That leads me to my final observation, which is this. I have listened to several of these debates, and in particular to one which your Lordships had in this House the year before last. Listening to the matter from more or less a judicial point of view, I must say that I came to the conclusion that there might be a great difference in the way the rule would be applied in the Army, the Navy and the Air Force. The conditions in which serving Persons have to exercise a discretion with regard to a particular act vary a great deal. I am particularly impressed with the fact that, though I have discussed this matter with many people who have spent their lives in the Navy, I have not found one who conceived that there should be any doubt about the necessity of a person in a ship in active warfare having to follow commands that come down to him from the captain. In those cases there is no time for the consideration which the clause in the Manual of Military Law supposes there would be. Therefore, I suggest, not what the rule should be, but that the people who are to consider what the rule should be should take into consideration the question whether it should be alike in all the three Services.

I am not going to express my opinion at this moment. I say only that that is something which they should consider. I certainly do not think the point should be brushed aside by the argument that there must be some sort of rule about military affairs upon land, and that the same rule must apply in the Navy and the Air Force. I think that the same question should be put before them with regard to the Air Force. I have had the advantage of discussing the matter with, I think, one of the highest authorities in the land, a person of very great authority. I asked him what he thought was the position, and with great candour he said: "In the Air Force, I do not know." Of course, the sort of superior orders they get in the Air Force vary a great deal. There is the superior order that may be given on the ground, before an aircraft sets off on its mission. That is very different from what may be said to a pilot or to a gunner when, with its deadly missiles, the aircraft is at work on its destructive career. All I am saying is: do not pre-judge that question in anything which you put before a competent body of people to decide what place should be given in the Manual of Military Law to the clause which I venture to agree is at present very unsatisfactory. I have nothing else which I need say at the moment. I think it would be better to have the matter considered by a predominantly professional body now rather than later on, so that we may all know in the future where we stand with regard to these matters.

3.52 p.m.

LORD SALTOUN

My Lords, the last time this question was debated before your Lordships the noble and learned Earl, Lord Jowitt, said very much what he said just now, and I was glad to hear him repeat it. If I can put it fairly, I think on that occasion the case he made was that the Manual of Military Law had always been wrong; that it is easy to know what is or is not a war crime or a crime against humanity; that Englishmen are never ordered to do these things, and that they would not do them if they were. I think that was the case the noble and learned Earl made on that occasion. In saying that the Manual of Military Law had always been wrong in its interpretation of the law, he said that the Editor of the 1921 edition had begun to have doubts. The Editor said that men acting in accordance with orders could not be punished, but continued that the contrary was sometimes asserted, and then proceeded to refute it.

The noble and learned Earl told us this afternoon that the law is interpreted to us by the opinion of judges. Of course that is quite true, and I accept it. But it is very difficult for me to believe that the Manual of Military Law was utterly wrong—the latest edition which I have, and the only edition I have ever had, is that of 1914—because after the Boer War very great interest was shown by the public in the Army. They decided to have common-sense drill and no more militarism. They altered the position of Attention from one that was anatomically sound to one that was anatomically unsound. The soldier has never been comfortable at Attention since. They did everything for the soldier except help him to get employment when he left the Service. I cannot believe that the Manual of Military Law was not very carefully considered after the Boer War, when various questions in regard to military service had arisen.

It seems to me that after the 1914 war the legal authorities began to be dissatisfied with what they conceived to be the law at that time, and began to assert what the editor of the 1921 edition wished to refute. I suggest that there has been a change in the interpretation of the law, and every effort should be made to change it back again, because I hope to show your Lordships that the present interpretation is very unsatisfactory. One of the miserable results of the new interpretation is that during the course of a war it exposes prisoners who have acted under orders to trials, which in form are perfectly correct, for what they may or may not have done. I should like to remind your Lordships of what everybody who has had dealings with mixed units knows—namely, that there is always plenty of hysteria going about in war, and there is nothing that produces convincing evidence like a good bout of hysteria. So those who deal with these matters may really quite honestly believe in the facts produced at the trial. In any case, a man in that position cannot possibly have a chance of defending himself. His best defence may be inaccessible, and I am sure it is much better that guilt far any war crime should be laid squarely on the shoulders of those responsible for it. Then, if defeated, the guilty pay the penalty.

In discussions on this question it has often been said that British soldiers do not commit these horrible crimes. Of course, that is true. We always feel ourselves rather virtuous in consequence, but I should like to remind your Lordships how it comes about. It is due principally to the iron hand of the first Duke of Wellington, who insisted on enforcing good conduct on the Army by the severest penalties, often against strong regimental opposition. He founded the tradition which we have taken the greatest possible trouble to preserve, and we must continue to do so. Your Lordships will remember that even under him the Highlanders, who were the cream of the Army, complained to Sir Walter Scott that the Duke did not allow them to plunder on their way from Waterloo. And, if you can believe their own diaries, men from the same Army who, later on, enlisted under Sir De Lacy Evans to fight in Spain, committed frightful atrocities. If we relax discipline for one minute, if we fail to preserve it, then I am certain that we shall fail to preserve the high standard and the example we have set to the world.

If obedience to orders is no defence against a charge of a war crime, then nobody is entitled to assume, without scrutinising them, that all the orders he receives are lawful. There is laid upon him the duty of scrutiny, the duty of the exercise of proper judgment. That is a duty which cannot be limited. We cannot say, "It is perfectly easy to see this or that." He has to examine every order he receives, to see whether it is lawful or not. If that is laid down and enforced, we are presented with this alternative. Obedience, to a soldier, is so automatic that an order is carried out instinctively. Either we shall have an army that obeys first and cavils, if at all, afterwards, or we shall have an army that cavils first and obeys afterwards. In the first case we shall have an army; in the second we shall always be defending ourselves on trials for war crimes, because we shall always be losing our wars. It has been argued that nobody in the Forces is ever asked to commit a war crime, and that if he is and refuses obedience, he will be supported. I have already twice in your Lordships' House referred to the case of an officer who refused to carry out an order. If I am rightly informed, I think it was quite a reasonable refusal. He was punished, or partly at any rate, because he would not commit what, in his view was a war crime.

Now I take another case. In 1946 I complained in your Lordships' House against the method—not against the fact but against the method—adopted in requisitioning in Germany houses and furniture for our own married quarters. I believe that that method was contrary to the rules of war, and it seems to me to have been contrary also to the Manual of Military Law. What I think matters very little, but of one thing I am sure, and that is that many of the officers detailed to carry out the order were also convinced that it was contrary to the rules of war. The practice was new, so that it was not actually covered by the Manual. These officers were placed in a very difficult position. They could not refuse to carry out the order; they could not resign their commissions, in any case, for they were at war. If they had refused to carry out the order they would have had to face a court-martial; they would have been prejudicing the discipline of the Force in which they served. If, when they had carried the order out, the tables of war had suddenly turned and they had found themselves in the enemy's hands, they might have had to face trial. The matter had not been decided and their own opinions were unfortunately on the side of the contention of their enemies. I wonder if the authorities really wish to make people who are our defenders, who are serving us in the Army, liable to punishment in certain circumstances, whether they win or whether they lose.

Every combatant always insists on his rights, under certain conditions, to make reprisals and, as a rule, his opponent refuses to consider those reprisals justifiable. This order of which I complained might very well have been a reprisal. How am I to know? How can any soldier who gets the order know? When the Admiralty, in 1940, ordered ships in the Skagerack to be sunk at sight and proclaimed that that would be done, if an officer in command of one of His Majesty's ships who had just received the order had sighted a vessel and ordered fire, how could the men who were told to carry out that order know whether it was a reprisal or not? Was it really meant that the crew were to argue with him until they, too, learned that the step was a reprisal and were convinced that it was justified?

There is another point. It has always seemed to me that soldiers act and think as a rule at a moral level rather higher than that of the rest of the community. Yet on both sides in every war many things which are contrary to any laws of war are always done. I will not mention any of them because every one of your Lordships with experience must know many cases of the kind. I have never seen any reason to change an opinion I formed a long time ago, that at the end of a war there ought to be a general amnesty for everything done by combatants to one another within twenty-five miles of the fighting area—or something like that—because you cannot possibly sift all these things and get them sorted out.

Anyone who thinks about the 1914–1918 war and recalls things that happened during that war which could not be avoided will know exactly what I mean. Soldiers are trained to sacrifice, and if Parliament in its wisdom does decide in the end that we shall adopt an interpretation of international law which makes their sacrifice more certain and complete, I am sure that the devotion and sacrifice will be forthcoming—at any rate for a time. But I do not think that this should be done without their being heard. I am very glad to support my noble and gallant friend's Motion.

4.7 p.m.

LORD HANKEY

My Lords, I have some hesitation in following such highly experienced and brilliant officers as those who have spoken on the question of obedience to orders. My experience does not enable me to compete with them on that question. But the noble and gallant Earl's Motion, which is so innocent in appearance, seems to me to raise a host of other questions, the substance of which cannot really be discussed in an afternoon's debate, although I think it raises large questions of principle, to which I shall refer later. The document with which the Motion deals is a chapter of the Manual of Military Law on the Laws and Usages of War on Land. I was very surprised to hear that the Manual of Military Law has no legal authority. I can only say that every officer in my time had to pass an examination on it, and it was his guide in every circumstance in every difficulty which arose where relations with the civil population and so on were concerned. It may have no authority before the law, but it certainly has great authority in the Services.

Not only that. Other nations have documents which are fairly similar to ours, so that in matters like obedience to superior orders both sides have acted on much the same principles, and everyone felt fairly confident that if he should fall into the enemy's hands, after having by chance obeyed some doubtful order, the rule about obedience to orders would give him a very good chance. The Manual certainly has enormous authority. It is not only important in time of peace, when the numbers of people it the Forces are relatively small, but it is prodigiously important in time of war, when millions are involved in the Services and the whole population from top to bottom is concerned.

In an attempt to discover some of the problems which would be raised for consideration if a tribunal such as that which is to-day proposed should be set up, I have searched carefully not only the ninety-five pages of Chapter 14, but also a greet many other documents which have introduced new factors since the last revision. I need not mention them all now, because I shall refer to them in the course of my speech. The net result of that study is to show that revision would present comparatively few difficulties, but for the post-war war crimes charters and trials. Those have introduced the greatest complications. No one disputes that they were entered into in a spirit of righteous indignation at the crimes of our enemies and in a laudable attempt to provide redress for the past and a deterrent for the future, and even to establish a rule of law throughout the world. But in that well-meant effort a great many mistakes were made, inevitably, perhaps, in a highly charged war atmosphere and with an Ally who had herself committed many of the alleged crimes. The resulting rule of law was so defective (this has been very much criticised all over the world) and such dangerous precedents were set and such obstacles to peace were created, that all over the world the system has fallen into disrepute. I think this has complicated the revision of Chapter 14, which cannot ignore this great post-war change.

I should like to give two of the most obvious examples of the complications. The first is the defence of "obedience to superior orders and Government direction." I do not propose to discuss that, because it has been fully set forth by better speakers than I. The second arises from the charges of crimes against peace, including the vast subject of aggression, and crimes against humanity, which moved my noble and learned friend Lord Maugham, at his advanced age, to write a lucid and most telling book—U.N.O. and War Crimes. Your Lordships may ask why crimes against peace affect this Chapter. They really concern the subject of aggression, which exercises a profound influence on all concerned in the planning and preparation for war, not only staff officers, not only naval, military and air officers, but also civilians—many civil servants were brought before war crimes tribunals—and even high politicians. It seems to me that in this Chapter dealing with the laws and usages of war there ought to be some examination of the real position on these subjects. That introduces a good many complications and difficulties.

Let me mention one difficulty in connection with aggression. The United Nations have indulged in prolonged proceedings to try to discover a watertight definition of aggression. Anybody might think that would be simple. They have been discussing it for months. I have listened to many of their discussions at the Palais de Chaillot in Paris and they have referred the matter to Geneva, to an international law commission; but they have all failed to produce a definition. The League of Nations failed in the past. The London Conference of June, 1945, failed. Everyone else has failed, and always will fail, to find a watertight definition of aggression. If anybody wants to see the difficulties let him read the masterly exposition of the British Delegation at the United Nations Assembly. This remarkable document demolishes every definition that had been put up, whether it was a mere catalogue of what constituted aggression or a generalisation, and one gathers from it that aggression does not depend on any legal definition but on a correct and often very difficult assessment of the political and military facts in every particular case. In short, the test of aggression depends much more on political and military than on legal considerations. I think anyone who takes the trouble to read the proceedings of the London Conference of 1945 on aggression will realise the truth of that statement—that aggression is largely a political concept. That raises a very large question. If it is true, then the ruling out of a great deal of political evidence in the post-war trials seems very questionable. I feel that in this Chapter there ought to be some lucid explanation and guidance for planners as to where they stand. It goes even further than the examples I have mentioned. For instance, what is the position of scientists engaged on new weapons? New weapons raise very difficult questions on which people want to be reassured.

There is one curious question of principle which seems to me to arise from Article 316 of the unrevised Chapter 14, which I read with great surprise. In the section of the Chapter headed "Capitulations" occurs the following short article with the marginal heading "Unconditional Surrender." Here is the article: Even if a capitulation is unconditional, the victor has nowadays no longer the power of life and death over his prisoners, and is not absolved from observing the laws of war towards them. That is a very important statement for Commanders-in-Chief and those placed in high responsibility. The making of the Charter and the departure from so many of the laws and usages of war have always been justified by the claim that the unconditional surrender of the enemy gave the victors full power to do what they liked. For example, there is a passage in the Nuremberg Judgment which begins: … the making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered. It is puzzling to me to see how our Government, who were originally very much against these trials, allowed themselves to be persuaded to accept and cooperate in putting into execution the theory stated in the Nuremberg Judgment, when the current edition of their own authoritative Manual stated categorically that they no longer had the power to do so. I do not think there is any dispute that we did exercise the "power of life and death" over our prisoners, or that we did not observe all the laws and usages of war towards them—when I say "we" I mean the Allies—to say nothing of military honour, which is mentioned in the following Article, No. 317. It is no use telling me that they were war criminals and, therefore, could not claim to be treated as prisoners of war, because under an elementary human right which existed long before the codification known as the Universal Declaration of Human Rights came into existence they were entitled to be presumed innocent until proved guilty. I think something has got to be done about that Article: either it must be washed out, or it must be readjusted in some way. I believe the author will have to exercise great discretion, because the subject cannot be ignored if the position of members of our Forces of high rank is to be safeguarded.

It is very agreeable to turn from those critical statements to the revised Geneva Red Cross Conventions that correct some of the most criticised features of the post-war war crimes trials and also raise questions of principle bearing on the revision. For example, neither in the definition of persons to whom the Prisoners of War Convention applies, nor anywhere else in the new Conventions, can I find the slightest hint that unconvicted war criminals are excluded from their benefits. On that point, as on all points, the Conventions conform strictly to the Universal Declaration of Human Rights which allows no exception for war criminals and applies to all men, without distinction of any kind whatsoever. In other respects, also, the Geneva Conventions conform to the Declaration of Human Rights. For example, in no circumstances can prisoners of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality—which most laymen would say excluded victor courts.

Then ex post facto charges are rigorously excluded by Article 99. The wearing of badges of rank and nationality as well as decorations is permitted; and even under penal and disciplinary sanctions, no prisoner of war can be prevented from wearing his badges. Nor can he be subjected to more severe treatment than that applied under similar conditions to the members of the Armed Forces of the detaining Power of equivalent rank. There are all sorts of safeguards for securing time and facilities for defence (which looks as if they very often expected trials for serious crimes, like war crimes trials) appeal, petitions for pardon, and a six months' delay in the execution of death sentences. In short, the humanity and justice that inspire these regulations is in strong contrast to the harsh rigidity of those which were imposed after the Second World War. I submit to Her Majesty's Government that these Conventions should be ratified at once, and I trust that in the new Chapter 14 they will be included rather than the faulty procedures adopted at the time of the post-war trials.

Before leaving the revised Geneva Conventions, I should like to draw your Lordships' attention to two excellent suggestions in resolutions annexed to the Final Act of the Conference: namely, in Resolution 1, that disputes on the interpretation or application of the convention be referred to the International Court of Justice, which I believe would be a great safeguard against the abuse of the Convention; and in Resolution 2, a recommendation in favour of the early setting up of an international body to fulfil the duties performed by Protective Powers (if these Protective Powers are not available) "in the application of the Conventions for the Protection of War Victims"—I think that is a particularly admirable phrase. I suggest that those Resolutions might with advantage be extended to much wider matters than the Geneva Conventions.

I should like to say a few words about the persons selected (as I hear this afternoon) to revise chapter 14. Dr. Hersch Lauterpacht is unquestionably an outstanding international lawyer who has had a most brilliant career. I have spoken to some of the best international lawyers in the country, and they will all tell you that. But I do not think that he is the right man for this particular job, and solve of those with whom I have spoken hold the same view—and a good many of the reasons have already been given. Chapter 14 is so vitally important to the fighting Services that I think its revision must be allotted to somebody who commands their complete confidence, and I do not think Professor Lauterpacht quite fulfils that condition. I feel that we ought to have someone of British origin. The first time Professor Lauterpacht was mentioned in Who's Who in this country was in 1927, when he came to London University, after which he had a most brilliant career. But his background is not quite right. Of course, a far more decisive objection is the one that has been mentioned already—namely, that he took a leading part in the supersession of the old Edmonds-Oppenheim Article 443, which had given satisfaction to friend and foe alike during the two greatest wars in our history. He secured its amendment in 1944 by means which were described in my speech on July 19, 1950, which was based on the history of the United Nations War Crimes Commission.

Before leaving that subject, I would point out that there is no analogy between Professor Lauterpacht as the editor of this work and the work that was undertaken by Professor Oppenheim. Professor Oppenheim was not called in to write the Chapter; he never wrote the Chapter, and he did not pretend to have done so. He was called in after the Chapter had been written by Brigadier Edmonds, a very distinguished historian, and when Brigadier Edmonds took the Chapter to Lord Haldane he said: "Well, we had better have this checked up by a good international lawyer, just to make sure." The book was then passed on to Professor Oppenheim, who revised it. When it came to signing the Chapter Brigadier Edmonds, being a modest Colonel at the time, wrote in pencil the names "Oppenheim-Edmonds," and Professor Oppenheim refused to sign. I have had in my hand recently a letter he wrote saying: "I will not sign first, because you have done all the work." Professor Oppenheim was really called in to "vet" a work that was largely completed. I know what I am talking about, because at that time I was engaged closely with Professor Oppenheim on work involving many visits to Cambridge. This was on a totally different business for the Committee for Imperial Defence. I was also engaged closely with Edmonds, and they both talked to me a great deal about this subject. I am quite sure that the right course would be to follow the Edmonds precedent, as the noble and gallant Earl, the mover of the Motion, suggested, and hand the work in the first instance to an experienced staff officer, with authority to consult, if necessary, international lawyers, including Lauterpacht, although I myself prefer that they should be British.

In the work of revision we have to remember that we cannot settle these things in isolation. I think my noble and gallant friend, Lord Chatfield, has already made that point. For good or ill we are tied up to other nations. One of the other nations with whom we seem to be getting very close is Germany, and it would be foolish to include in our new Chapter a system which the Germans have already refused to recognise and they will not be induced to recognise. For that reason, I submit that as far as possible the Chapter should not be based upon the post-war trial system.

4.32 p.m.

EARL WAVELL

My Lords, I decided a little hesitantly to obey the orders of my superior officer that a junior officer should speak upon his Motion. I am not quite sure whether I am within the law or the Queen's Regulations in doing so. This matter has been discussed so far within the context of war, but it seems to me that some of the hardest applications of this principle arise when troops are operating in aid of the civil power. I have in mind the operations in the Arab rebellion in Palestine in 1938 and the Congress rebellion against our communications in Eastern India in 1942. On neither of those occasions was martial law declared, because the Army had not the staff to undertake the civil administration of the country which a declaration of martial law involves. Yet the operations of the troops went a good deal beyond aiding the civil power in controlling riots in big cities, which is what one normally thinks of. In those circumstances, it is perhaps relatively practical to have a civil magistrate by your side to give you authority to open fire: but when platoons are operating in scattered villages all over the countryside, it is not practical.

In the typical operation of cordoning a village in the half-light at dawn, to try and capture Dacoits who were reported there, I have often given the order that the troops should fire upon anybody breaking out of the cordon if they did not halt when called upon to do so. I remember an occasion when a person, who turned out later to be just an innocent, but frightened, villager, was wounded in this way. In another operation I believe that three women were killed in such circumstances. Thinking back upon that occasion ten years later, I dare say I was morally wrong to give such an order and that it is better that Dacoits should escape than that innocent people should suffer. There is no doubt that I was wrong within the letter of the law, but it never occurred to me that anybody except myself would have to be arraigned for the consequences of giving that order.

It may be said that these are not the sort of incidents which manifestly outrage the general sentiments of humanity. I do not find these distinctions so easy. The bombing of open towns is against the usages of war, but it becomes justified when it is a reprisal against the enemy's bombing of your towns. The time comes when you decide you are justified in taking reprisals. Is that a legal decision? Is it even a moral decision? I submit that it is a political decision, taken by the Government of the day or perhaps by the commander in a particular theatre. We shackled German prisoners because they shackled our prisoners. If a soldier is told to maltreat a prisoner, how is he to know whether this is a deliberate order given as a reprisal because our prisoners have been maltreated in another part of the front, or whether the officer who gave the order in a hot-headed moment has lost his head? I submit that there will always be a sort of marginal No Man's Land of cases that have in the decision taken a certain political element and no officer should have to consult his own conscience on a political matter. In 1913 some officers tried to resign when troops were being moved to Ulster at the time of the Home Rule Bill. I have been reading recently my father's private correspondence at that time. He wrote as follows: The majority of my friends applaud these officers' action. They say once the troops had moved civil war could not have been averted. Well, I think they should have obeyed orders, whatever they were, that came from the responsible heads of the Army and the Government. I do not believe that my father at any time in his life departed from that opinion.

There is one other point, which is perhaps so obvious that it has not been explicitly mentioned in these debates. It is that the man who, by his age, his experience, his education or his background, is the least able to judge the quality and the legality of an order—namely, the private soldier—is the one who has to make up his mind whether to obey at once or not. At the other end of the scale, the commanding officer has perhaps some half an hour between the receipt of his brigadier's orders and the time he issues his own, and perhaps another half an hour from the time he issues his orders and they are transmitted through his command to the time when they are executed. In that interval he has an opportunity to reflect upon and even to question the orders and time to cancel them. I emphasise this time lag. I believe it should be possible to find some way of protecting the sentry or soldier who obeys orders in the heat and excitement of battle, and yet be able to punish those German generals who, in the peace of their rear headquarters, had not the courage that Field-Marshal Rommel had to tear up Hitler's maonstrous order that the Commando troops in the desert should be executed.

I have read over many times the speech of the noble Viscount, Lord Swinton, in the last debate. It seemed to me that he was troubled over this very point. He said: I do not see how we can lay down a law which is a half-way house. I believe that we should try, and I myself feel that that half-way house should be drawn about the rank of field officers, or, at any rate, commissioned officers, so that no other rank should be punished for obeying orders. It seems to me that those are questions which should be thought about by the appropriate body that it is suggested should be set up.

VISCOUNT SWINTON

May I interrupt my noble friend? I think I also said that, whereas I did not see how in law you could lay down a half-way house, I thought, certainly when we were dealing with international matters of this kind, that whereas it was quite right to prosecute a commander-in-chief in the German Army or the commander of a submarine who ordered great atrocities, yet I thought administratively it was quite wrong to prosecute some junior officer in the position which my noble friend has been describing.

EARL WAVELL

That, I suppose, is perhaps the way in which we are divided: those who believe that we are sufficiently covered in the administration of the law and those of us who believe that people should be specifically protected by changing the law for the junior ranks.

Several noble Lords have this evening produced examples from their private experience of the application of this principle. I should like to remind your Lordships of an example well known to us all, when a ship ran upon the rocks off Malta. The passengers and crew were trying to swim ashore, or cling to any piece of wreckage, and the soldiers in charge of a body of prisoners suggested to their officer that if they did not kill the prisoners they would escape. But Julius the Centurion of the Augustine band, willing to save Paul, commanded that the prisoners be let go. The British soldier has inherited from the Roman Legionary this same sense of restraint and justice as he maintains law and order in the scattered parts of this distracted globe. He has also inherited great traditions of discipline and trust that he cannot stand in peril if he faithfully obeys the commands of his officers.

4.42 p.m.

LORD GIFFORD

My Lords, my noble friend, Lord Cork, in raising this Motion, expressed particular concern as to what would happen in contact with the enemy, and that also was largely the theme of the remarkable speech by Lord Wavell which we have just heard. He also brought in that perhaps more difficult problem, which arises when on active service in aid of the civil power. As a practical officer of some years' service I feel that the commanding officer in action must know that his men will obey him instantly and instinctively. He must be protected against that bane of the Royal Navy, the sea lawyer who searches through textbooks to try to find a way round discipline. The junior officer must also, so far as possible, be protected in case an order given on the spar of the moment, probably in good faith, turns out to be an unlawful order. I listened with great interest to what the noble and learned Earl, Lord Jowitt, said. He pointed out that the Manual was not itself the law, but only an interpretation of the law. That may be so, but it is nevertheless. I think, regarded as the Bible of all Service men; it is what they turn to; it is what the C.O. or the company commander or the divisional officer turns to when he is in doubt. It is regarded with absolute authority by them, and therefore I think it is essential that this volume should interpret the law in a way which gives confidence—in other words it should have the authority and should give the views of senior officers of all Services and should not be based solely on the authority of an undoubted expert in international law.

One cannot emphasise too much the confusion which arises in battle. The noble Earl, Lord Jowitt, cited the setting fire to a church full of women and children as an obviously wrongful act. No doubt it was. But I can quite conceive this sort of circumstance. Suppose that those women and children are confined in that church, and that a naval pilot in the air who has taken off from a carrier, is given orders, as Lord Maugham has rightly remarked, over the radio-telephone, and is told to drop a napalm bomb on that church. He does not know who is inside. Afterwards he may be tried for an offence against the rules of war. That is perhaps not a very good instance, but there are hundreds and hundreds of cases in the confusion of war where afterwards, sitting down quietly and thinking the matter out, it may be obvious that a wrongful act has been committed, although at the time it was by no means clear to the officers and men concerned. Therefore, my Lords, I wish most heartily to support the noble Earl, Lord Cork, that this Manual of Military Law must be interpreted in a clear and common sense way by senior officers, people whom those in the Service will trust and believe.

4.46 p.m.

LORD WINSTER

My Lords, it seems to me that this afternoon we are discussing matters and niceties which arise from the change from the old rule that only those responsible for orders and not those who obey them can be treated as war criminals by the enemy to the new rule which lays down that obedience to superior orders is no excuse. It seems to me that the new rule is what I should call a rather uneasy and uncertain new rule; there are a good many "ifs" and "ands" about it—what I should call escape clauses. For instance, it says that the court is bound to take into consideration that obedience to military orders not obviously unlawful is a duty. Again, it says, the men cannot be expected to weigh scrupulously the merits of the order. And again, the men cannot escape liability if in obedience to a command they commit acts which violate unchallenged rules of warfare and outrage the general sentiments of humanity. Let us look at those three "escape clauses" as I have called them. Let us look at the first, that the court is bound to take into consideration that, obedience to military orders not obviously unlawful is a duty. That clause puts consideration of the order first and obedience to it second, because it lays down that members of the Armed Forces are bound to obey only lawful orders. In so doing, it must certainly undermine discipline, because an element of doubt and confusion is created in what should be the instant, unthinking, automatic obedience which is, and must always be, the chief rule of discipline.

Now look at the second clause to which I have called attention, that the man cannot be expected to weigh scrupulously the legality of an order. In the majority of cases how can the man be expected to weigh it at all, let alone weigh it scrupulously? The Report of the Committee which investigated the disorders in Nigeria says: The Armed Forces are at times forced to make up their minds in a split second. I believe that to be absolutely true. Yet the rule lays down that men ought not to obey the order in a split second but ought to "weigh scrupulously" whether it is a legal order or not, a matter of which they have neither the training nor the experience which enables them to decide.

In looking at the escape clauses about the sentiments of humanity, take one instance. Suppose that an officer gives an order which violates the sentiments of humanity because he and his men have witnessed a sight which in itself violated such sentiments, and their anger and their blood are roused by what they have seen. The horror and rage are caused, perhaps, in the height of battle by the sight of some horrible deed committed by the enemy. Look at these three clauses. We had experience in the last war of several enemies and one Ally. We had experience of the methods of the Germans, the Japanese as enemies, and of the Russians, and we know their outlook on many of these cases. Can we imagine any of these nations, at the trial of a "war criminal," taking into consideration that an order was "not obviously unlawful" and that there was no time to weigh its legality scrupulously or to say that, properly considered, the act did not quite violate the sentiments of humanity? What nonsense! Those cases alone show that the whole of this business is a complete muddle. Of course, what those courts-martial, comprising officers of those three nations, would say is "Your own military law condemns you." Article 8 of the Nuremberg Charter says that obedience to an order does not absolve but may mitigate such an offence. Can you imagine such a court-martial taking anything into consideration and mitigating sentence of death? This new rule condemns our own men and I commend to your Lordships what the right reverend Prelate the Lord Bishop of Chichester said about this, to the effect that no one, however remotely connected with such an offence, could possibly be absolved. Let us look at another side. This new rule plays directly into the hands of the agitator and of the barrack-room lawyer, or sea lawyer—I do not know what they call his counterpart in the Air Force. Under this new rule the more junior the officer the more difficulty he may encounter in carrying his authority. There will not be wanting those who will say that, since all share in the responsibility for obeying an order, so all ought to share in the framing of orders. Are the men to ask their officers to show them their authority for giving them an order? Will a man have to say to his officer "Would you kindly stop the action while I ring up my solicitors to see if this is all right?" Really, my Lords, some of the speeches we have had read as if an order can be considered in the quiet solitude of the recipient's library. But that is not so at all.

When the matter was previously discussed, the noble and learned Earl, Lord Jowitt (I see the noble Earl is here: he will, I am sure realise that I am quoting his remarks not to score a point, for that has not been the spirit of this debate; we are only trying to arrive at the facts) quoted Dicey as saying that acting under superior orders is no defence. My Lords, it has been for many long years—for something like thirty years, and during two wars. Was that rule found ineffective during that period and during those events? I do not regard this as entirely, if indeed primarily, a legal matter. I feel that the prime consideration is the discipline of the Armed Forces upon which, after all, all of us and the security of the country depend.

I thought that a good many irrelevant matters were dragged into the last discussion we had in July, 1950, on that account. But I consider that the new instruction is, in any case, very imprecise. Can we be told what, in fact, are the unchallenged rules of warfare to which we are referred? Certainly there are no unchallenged rules of warfare unless they are internationally agreed—and that is very far from being the case at present. Where are these rules listed? If they are not listed, how do we know whether they have been violated or not? What is the "general sentiment of humanity" of which we are told? Where is that defined? There are tribes in some parts of the world who think it a religious act of filial piety to slay, if not to eat, their grandparents when they have reached a certain age The "sentiment of humanity" varies all the world over, and it varies from age to age. We have proceeded from the age of chivalry to the atomic age. My own sentiments of humanity were and are shocked by the atom bomb being dropped in the last war. Not everyone may agree with me, but that is my view. But to drop an atomic bomb is, apparently, within the "unchallenged rules of warfare"; to drop such a bomb on the civilian population is, apparently, not contrary to the "general sentiment of humanity." I should be very greatly obliged if someone would tell me where legal warfare ends and where humanity begins.

It has been said that hypocrisy is the tribute which vice pays to virtue. Do we tell the air crews who carry and deliver an atomic bomb not to outrage the general sentiments of humanity? Do we hold that one of the air crew, if captured, ought not to be treated by the enemy as a war criminal? Should we complain if he were treated as a war criminal by the enemy? Does humanity outweigh military necessity, or vice versa? Which is it? The noble Marquess, Lord Salisbury, in the previous debate on this subject, said that: a plea of military necessity might be held to justify the most appalling actions. His words show what a complete muddle this matter is in. In talking in this way about the "recognised rules of warfare" and about the "general sentiments of humanity" you are simply trying to define the indefinable.

The Services used to be perfectly clear on this point. Now, by the new rule, they are confused. If you are going to introduce the factor of necessity, you are up against the fact that necessity knows no law. How would this new rule work out in practice? Suppose at a critical moment in an action an officer received an order and felt it his duty not to obey it because he had some scrupulous doubts about it, with disastrous results. This plea might avail him if subsequently he fell into enemy hands, because the enemy would be delighted with him for having had those scruples. But I doubt whether that officer would survive to fall into enemy hands: I think his own side would deal with him, very rapidly and very effectively indeed. I do not believe that any option should be left to the men of the Armed Forces on active service to question an order which they receive. It seems to me that we are getting very near indeed to telling men that they must obey an order, and that if it turns out to be an unlawful order they may plead obedience in mitigation of guilt and of the sentence which they will receive. That seems to me a complete and utter confusion of thought. As things stand, a man who is detailed to form one of a firing squad to execute a prisoner who has been unlawfully condemned is, under this rule, a war criminal. When he was detailed for the firing squad, ought he to have said: "May I have the shorthand notes of the trial? I should like to look through them first. I want to see whether I can legally take part in this firing squad or not"? That is the position we are confronted with to-day. Every soldier, sailor and airman who takes part in what the victors eventually describe as "a war of aggression" is, according to this new rule, a war criminal.

In spite of what has been said to the contrary, I agree with what a previous speaker said this afternoon: I think it is perfectly possible to determine where in the chain of command is the link at which discretion was possible. I can see no difficulty whatever in arriving at that decision. For instance, there is the case which was cited by the noble Marquess, Lord Reading, in this connection—the commander-in-chief who ordered escaping prisoners of war to be shot. I can see no difficulty whatever in deciding that it was at that point with that man that responsibility for what was done began and existed. I see no difficulty in establishing the responsibility. That may be questioned, but it is certainly possible to determine where no discretion or responsibility could possibly be established. I feel quite sure about that. The noble Viscount, Lord Swinton, is not here at the present moment, but I do not think he would disagree with me when I say that I felt, when he was speaking about this question, that to some extent the noble Viscount agreed with that point of view. I do not wish to put words into his mouth but, in re-reading his speech, I felt that to some extent he agreed with that point of view.

What the new instruction seems to ignore is the difference between giving an unlawful order and receiving an unlawful order. The giver and the recipient are lumped together by this new rule. It is certain that you cannot have disciplined armed forces on the basis of senior officers being uncertain whether their orders will be obeyed, and junior officers doubting whether they ought always to obey the orders which they receive, wondering whether they ought not scrupulously to consider the order before they decide to obey it. Even if a junior officer did have some doubts about the legality of an order given to him, is he really in a position to disobey it?

When we debated the question of the German submarine and the young man who was ordered to machine-gun the survivors in the water, the noble Marquess, Lord Salisbury, said that the officer who obeyed that order should have had himself shot. That really is a counsel of perfection. Imagine a young officer on the deck of a submarine in mid-Atlantic, and his captain with a large revolver in his hand gives him an order. The young officer does not feel that it is a proper order; it outrages his sense of humanity—and the noble Marquess says that he ought to have himself shot. As I say, it is a counsel of perfection, and. I do not think it is very practicable. I quoted a remark made by the noble and learned Earl, Lord Jowitt. I think previously the noble Earl said: The soldier cannot he licensed to commit crimes merely by the fact that his superior officer gave him orders to do so. With great respect, naturally, upon a matter of law, I would point out that no one has suggested that he should be entitled to. I think we should all completely agree with that statement by the noble and learned Earl. I do not think it is very germane to the point we are discussing.

EARL JOWITT

If the noble Lord accepts the proposition that superior orders are an absolute defence to a private soldier, I ask him to answer this. Imagine that a commanding officer says to a private soldier: "You see that woman over there in the yellow dress? She is my mother-in-law. Shoot her." Would anybody in his senses suggest that that would be an answer? Obviously not. Therefore there must be some limitation on the doctrine that superior orders are a defence.

LORD WINSTER

I agree that there should be some limitation. As I said, it is possible to establish the point at which responsibility begins.

EARL JOWITT

Yes.

LORD WINSTER

If the noble and learned Earl will forgive my saying so in a perfectly friendly way, I think he has cited a very unlikely and extreme case.

EARL JOWITT

I know. I did so quite deliberately. I have done it in order to test the proposition.

LORD WINSTER

Yes, but, for myself, I am disinclined to think that the validity of a proposition can be established by citing an extreme case. The noble Earl would agree that it is a maxim at the Bar that hard cases make bad law. I would say that extreme cases make even worse law. May I ask the noble and learned Earl this question, because I assure him that this matter did cause me considerable perturbation this afternoon. I think I got his words right. He said that the Manual of Military Law has no authority. I feel that that is a very remarkable statement to make. I am sure it is the fact, because who would question a statement on such a point by the noble and learned Earl? But I should like to ask if there is a foreword to the Manual of Military Law saying that "it must be understood by all reading this work that it has no authority at all." Because if it has no authority at all, it certainly cannot be accepted as a manual of guidance by those who are reading it.

LORD CHATFIELD

Who are taught by it.

LORD WINSTER

As my noble and gallant friend quite rightly says, "who are taught by it." In the previous debate, the noble Viscount, Lord Swinton, said: Officers and men should know where they stand. The new rule, coupled with the dictum of the noble and leased Earl that the Manual of Military Law has no authority at all, certainly leaves the men without the faintest idea in the world where they stand, although the noble Viscount, Lord Swinton, very truly sags that it is most essential that they should know where they stand. We seem with great ingenuity to have arrived at a position in which they are deprived of any knowledge whatsoever as to where they stand. The noble Viscount also said: The right course is not to alter the law, least of all to attempt to do so unilaterally, but to administer it wisely. How do we arrange for a barbarous country, for people guilty of such barbaric conduct as we saw during the last war, to administer the law wisely? Again, it is a counsel of perfection. Of course, the law ought to be administered wisely; but how do you ensure that a barbarous enemy does administer the law wisely? The noble Viscount, Lord Swinton, said he believed it would not he difficult to get agreement for all nations to apply the law in the same way. Judging by what we saw in the last war, I can imagine nothing more difficult than to get all the nations to agree to administer the law in these matters according to common practice and in the same way.

The noble Viscount, Lord Swinton, said: I do not see how we can devise a formula which would convict the guilty but exonerate the innocent. Whilst that may be true, it is no reason for producing a formula which may convict the innocent, which is what we have arrived at to-day. What has been done is to leave officers and men in a halfway house between their military duty to obey the orders they receive from their superior officers, and the possibility of conviction if they do so. The noble Viscount had two remedies to propose. His first remedy was to administer the law sensibly. Well, I have dealt with that. Nothing could be more perfect. But how do you arrange that it should be done by people of various nations? His second remedy was to obtain agreement from other countries to follow a common practice. In that connection may I read to your Lordships what I feel is an extremely important statement on this subject? The Times of June 21, 1949, contained a statement by the noble Lord, Lord Oaksey, who of course presided at the Nuremberg trials. This is the statement: Lord Oaksey said that after the Nuremberg trials it seemed that the rules of law laid down there would be recognised by all civilised nations. Now it was doubtful whether that acceptance could be relied upon.… It appears at present impossible to rely on the submission of all nations to a complete system of international law. If Lord Oaksey is correct, what is the good of talking about getting all the nations into line to agree to apply common practices?

VISCOUNT SIMON

Is that Lord Oaksey's statement? Who was the author of the statement?

LORD WINSTER

It was Lord Oaksey's statement, quoted in The Times of June 21, 1949, under the heading "Dropping of Atom Bomb." My Lords, I hope that the Government will consider what has been said on this matter in your Lordships' House to-day, and previously in July, 1950. Your Lordships have heard four Admirals of the Fleet and a Field-Marshal, and I understand that two Air Chief Marshals, though they have not spoken on this subject, have expressed themselves as being in agreement with the views of the noble and gallant Earl. When that weight of professional experience has been expressed, not by politicians seeking to establish some Party or political point, but by officers of high rank who have spent the whole of their lives in ensuring that the orders of the Government are carried out and that a state of discipline exists in the Forces and the Fleets under their command, are the Government prepared to wave it aside? Surely the views and testimony of these noble Lords should be taken into the most earnest consideration by the Government in deciding whether or not this new rule is really consistent with the duty of officers to preserve that discipline upon which the whole life and security of our nation exists.

5.14 p.m.

VISCOUNT SIMON

My Lords, I was able to come into this debate only after it had begun and I had no intention of taking part, but I should like to suggest very briefly, with reference to the speeches I have heard, that there are two considerations which must be kept steadily in mind in discussing what I agree is a difficult topic. I am not in the least disposed to argue that the view of a lawyer in this matter is better than that of the great and responsible heads of the Fighting Services. Nothing of that sort is in my mind. But it is just possible that people who have been trained in the law can sometimes examine a particular proposition and isolate it, and ask those who are earnestly considering the matter to be sure at least how they stand about this isolated proposition. I am bound to say that I do not myself see that any answer has been given to what the noble and learned Earl opposite intervened to say just now. It is no good going off on other subjects in that connection. Let us isolate it. Either you must say that the rule is that a man under discipline who receives an order from a superior officer is, in all circumstances, entitled to do whatever he is ordered to do, however monstrous it obviously is, or else, taking a very extreme case such as the noble Earl put just now, you must admit that that universal proposition really cannot stand.

If I may say so, most respectfully, to some noble Lords who have taken part in the debate and who feel strongly, I think a certain confusion may arise from using the sacrosanct phrase, that superior orders are "no excuse" Of course they are of enormous importance in determining, first of all, whether a man ought to be charged with having done anything wrong and, secondly, whether he has really done anything wrong or can properly be punished for it. We are living in a very unreal world if we suppose that lawyers who say that superior orders are "no excuse," mean that it does not matter how obviously the man who did the thing was under discipline and was only obeying orders. In the pinch of battle a man is required and trained to do what his superior says. Lawyers ate at least not so foolish as not to understand that, in the pinch of battle, it is impossible for a man to send for a solicitor or argue points of law. I should expect a man who did so to be a bad citizen, of not the slightest assistance to our own Services, and rightly to be regarded as a stupid and interfering person.

That is not the real point. It would be much better to say that, while you cannot lay down the rule that in every conceivable circumstance a man who does the thing ordered, however gross it is, when he is under discipline, is completely innocent merely because he has had an order to de it, on the other hand of course it makes all the difference in the world whether he has done what he did because he was ordered to do it. When you say that it is "no excuse," all that is meant is that, by itself and of itself, that does not necessarily acquit him of all responsibility. If you do not accept that view, what is the alternative? The alternative is to say that superior orders will always be a complete defence—not sometimes, but always. Let us apply that to what happened in the last war, in the case of the Germans There is nothing infamous that was done in the war by any German soldier, of any rank, which could not, so far as I know, have been excused by saying, "Well, I was ordered to do it by so-and-so." When you turn to the man who gave the order, he in turn will say. "But I also had the order to do it, from so-and-so." On that view of the matter, you would then trace the whole thing back until there was nobody left who was responsible at all, except the Fuhrer himself. If you could get hold of the Fuhrer and charge him with giving the order, his answer would probably be, "I am the head of a State, and you cannot take proceedings against the head of a State."

That is really the logical conclusion to which you are forced—I do not apologise for saying "logical." That must be the logical conclusion, if you try to insist on the proposition that superior orders are always an excuse. They are not. Everybody in practical life knows that. It is part of the confusion—I would almost say, part of the indignation—with which noble and gallant members of this House deal with this proposition. No doubt that is because, to them, and to me also, it is quite unthinkable that such monstrous orders should be given by a British officer to his men. No one is going to persuade me that any British officer, in any circumstances, would give a deliberate order to men under his commend, discipline and control: "Take those babies and throw them into the fire." Of course not. As one is so indignant at the idea that such monstrous things could ever be alleged against a British officer, it is extremely easy to come to the conclusion that superior orders must always be an excuse. But the noble and learned Earl opposite is right when he says that to test a proposition you must take an extreme case. If you do test it in that way, then no one could suggest that it was always a complete defence.

LORD CHATFIELD

Suppose that the "superior person" who gives the order is the Government of your country?

VISCOUNT SIMON

A Government is not a person. There is an individual involved. I rather agree with Lord Chatfield that the circumstances that the order traces back to something called a Government is a very good reason for saying that "superior orders" are never a complete excuse. That is the very reason they are not—because in the end you would be led back to some vague abstraction called a Government No one would ever be responsible for what he did if he said: "It all comes from the Government," and that was accepted.

LORD SALTOUN

May I ask the noble and learned Viscount to deal with this point? The understanding in the Army, at least in certain ranks, is: "Obey first; think afterwards." That applies to a private soldier and perhaps N.C.O.s. It really is not fair to treat them in exactly the same way as their superiors. This is a point which was made by the noble Earl, Lord Wavell. I think that may be a matter which the noble and learned Viscount is rather slurring over.

VISCOUNT SIMON

I am not attempting to discuss every topic that has been raised in the debate. I should not be entitled to, for I have not been here all the time. I am only trying to concentrate on one question for the moment. I just want to know whether there is any noble Lord here who says that if in fact a soldier were told to throw a lot of babies into a fire, the circumstance of his being told to do so could be a complete excuse for doing such a monstrous thing. No one, I am sure, thinks so for a moment.

The real answer, I venture to think, is this—and I submit it to the House with great respect, for I have not heard the point mentioned in the debate before. It has always seemed to me that, before this can ever become a practical difficulty, so far as we are concerned, someone has got to authorise a prosecution. If it is a case of possibly court-martialling a man for something which he has done under orders, no general responsible for deciding whether there should be a court-martial would ever dream of ordering it if what the man did was within a thousand miles of being something which he could reasonably do and could regard as a lawful order. On the other hand, if it were a case of prosecuting in one of our civil courts—the Old Bailey or elsewhere—people are not prosecuted automatically. No such case would ever be considered even worthy of accusation, unless it was such a gross case that it was thought right in the special circumstances to prosecute. That was what I wanted to say on discussion of this phrase—that "superior orders" are no excuse. I think a great many people imagine that "no excuse" there means that you are just as likely to be punished as though you had no superior orders. That is not the meaning. The meaning of the phrase is that you cannot, in every circumstance you can conceive, take the view: "I have received my order from a superior, and it follows that nothing whatever I do under that order brings me into any responsibility at all." I really do not believe that that can be right.

The only other observation I want to make with regard to the Manual of Military Law is this. I think it is most unfortunate that there should have been for years in the Manual, a statement which, in my humble opinion, was not a correct statement of the law. That is deplorable and I can well understand the resentment with which the change is now regarded. But after all, what is the Manual of Military Law for? It is not an instrument for enacting the law. It is not a document for the purpose even of recording the law. It is, or it ought to be, a document in this particular part which is explaining to those concerned what the law is, and I cannot conceive that anyone would want the Manual of Military Law to contain a statement which is not the law. I know nothing about the circumstances in which this change has been made.

LORD HANKEY

Can the noble and learned Viscount give us any instance in either of the two great wars where trouble was caused to the Army by that?

VISCOUNT SIMON

I have so great regard and affection for my noble friend that I should not like to say a word in criticism of him. But the question is not that. The question is whether it is better to have the law correctly stated or incorrectly stated. That is all. I myself think that this mistake has not done very much harm—and for a very good reason: That whatever the Manual may say, people, as a matter of fact, have done their utmost to act reasonably. I do not think, therefore, that the question has in practice arisen. If the question is: "What is the Manual of Military Law for?," there cannot be any answer but that it is for the purpose of stating to the best of the ability of the authors what the law is. It cannot be that its purpose is to state anything which is not the law. It is not laying down the law. I think you will find it difficult to discover anyone who understands the legal side of the question who will say that what the Manual previously contained was a correct statement of the law. It is most unfortunate that it was not. It is astonishing that it should for so long have contained a statement which was wrong and which it has taken so long to correct. The late Lord Chancellor said what I would humbly say myself, and what I rather think the present Lord Chancellor may be about to state—that it is not the law that a man is completely exonerated, whatever he does, because he is told to do it by a superior. I should have thought that whatever else would be in the Manual of Military Law it should most certainly contain information which was right and not information which was wrong.

LORD WINSTER

If I understand the noble and learned Viscount properly, there has evidently been a slip-up in the Manual of Military Law in one instance, and the Manual now states the law as it exists correctly. I understand that it does not make the law; it states the law.

VISCOUNT SIMON

It tries to.

LORD WINSTER

How is that to be reconciled with the statement that the Manual of Military Law has no authority?

VISCOUNT SIMON

I did not say so.

LORD WINSTER

It has been stated.

VISCOUNT SIMON

If the noble Lord wants to discover what is the law about some subject—rent or contract for instance—he can go into the library and read a book about it. The book which he will read has no doubt been written for the purpose of informing people correctly, but the fact that something is in the book does not prove that it is correct. All I am saying is that if possible there should be a new edition of the Manual which contains what is correct.

THE EARL OF CORK AND ORRERY

Would it be out of order if I were to say that my Motion is being departed from very widely? All this has got nothing to do with the Motion.

EARL WAVELL

The noble and learned Viscount asked what any member of the House would do in certain circumstances. If, in the case of the woman in the yellow dress, I were the soldier concerned, I should shoot the woman if she was running away. She might, for all the soldier would know, he a dangerous spy, in spite of being the commanding officer's mother-in-law. I think we must assume, and the soldier must assume, that any officer acts in the interests of the Service in such a case and not out of malice towards his mother-in-law.

VISCOUNT SIMON

I am not expecting to get everyone's agreement at the moment. May I point out to my noble friend that the illustration I gave had nothing to do with mothers-in-law, and nothing to do with women in yellow dresses. The illustration I gave was merely by way of a test. Suppose that a soldier was told: "You see those half dozen babies—take them and throw them into the fire." I say, and I hope that I am right in saying, that there is no noble Lord in this House who in these circumstances would say that a man who did that was necessarily completely exonerated because he had been ordered to do it.

5.30 p.m.

LORD OGMORE

My Lords, we have had a most interesting encounter to-day. It is not often, even in your Lordships' House, that our most distinguished Service chiefs are bowlers and our most distinguished lawyers are batsmen. This has been a Homeric encounter. As one who is neither a distinguished lawyer nor a distinguished soldier, but who is concerned with this matter because I want to see justice done, I have been trying, as noble Lords have spoken, to weigh up what is the common denominator in the problem and how best we can solve it. So far as the soldiers are concerned, I thought they rather begged the question. Obviously, they have a case, and an important case; but there is no doubt in my mind that they fail to appreciate that there is another side to the problem. This other side was touched upon by the noble and learned Viscount, Lord Simon, and in an interjection by the noble and learned Earl, Lord Jowitt.

The noble Lords who supported the Motion gave some hard knocks to international law, The Hague Convention, the Manual of Military Law and to lawyers of all descriptions. But if we read the history of this subject, we find that these rules of war have not been made by lawyers but have been made over the centuries by soldiers. In the early days there were no laws of war at all, and a commander could do as he pleased with prisoners and civilian population. But with the coming of Christianity and the growth of the rules of chivalry, commanders themselves began to develop the customs and laws of war—though they are not laws in the real sense. This has been a continuous process up to the present, and is still a continuing process.

I remember that towards the end of the last war the Americans and ourselves had a difference over one of these problems and in the end we put the difficulty to the noble and learned Viscount, Lord Simon, who was then Lord Chancellor. That was on another point, but it showed that this is a continuing process especially where it concerns the civilian population. The high tide of chivalry in war was in the nineteenth century, in the Victorian period, when people tried to be decent, at least if they lived in certain classes and strata of the population. It was the second Hague Convention of 1907, following upon the Convention in the late 1890's, which crystallised many of these rules of war. In the Boer war, for example, the wife of the general who was besieged in Ladysmith was actually the guest of the Boer general besieging the town. And in the American Civil War, General Grant objected strongly because he could not get his messages through on the only line available because there was going on between the South and the North a big private deal in hogs which took precedence over military matters. In the nineteenth century war was regarded as a limited matter which, to a large extent, could be fought out without undue interference with the civil population. Those old rules have gone and unfortunately—and I think we are all very sad about it—the civilian population is regarded as the "target for to-night" and can be bombed and terrorised at the will of the commanders.

Paragraph 442 of the Manual of Military Law sets out four different classes of war crimes. It is important that your Lordships should bear these in mind when dealing with this subject because I am going to make a suggestion about one of them afterwards. The first is, "Violations of the recognised rules of warfare by members of the armed forces." It is on that class that all the argument is taking place. The second is, "Illegitimate hostilities in arms committed by individuals who are not members of the armed forces." That class we are not concerned with to-day. The third is, "Espionage and war treason." We are concerned with espionage. And the fourth is, "Marauding," with which we are also concerned. No mention has been made of either of these last two classes of war crimes.

In paragraph 443, as it stood before being amended, appear these words: It is important, however, to note that members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by the Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy. Certain consequences flow from that. In the first place, in the British Army those who committed such violations could always be punished by court-martial by the Army itself. There is no doubt about that. The prohibition in the Manual is in regard to punishment by the enemy. It does not say in this paragraph that those who are guilty of espionage or marauding cannot be punished, so presumably soldiers who commit these classes of war crime can be punished, even under the law as formerly interpreted by the Manual. From two highly distinguished lawyers, both of whom are former Lord Chancellors, we have had the statement, which I think we must accept (I, for one, would not disagree with such authority), that this interpretation in the Manual is incorrect, and that under international law, as under domestic law, members of the Armed Forces who commit violations of the recognised rules of warfare are punishable by the enemy. It is interesting to note that in the German war book, prior to the last war and during the last war, German soldiers were punishable for these offences. In other words, it was no defence to say that they had received an order from a superior officer.

Bearing these facts in mind, I find three objections to the proposal which has been made to us to-day by the noble and gallant Earl. Lord Cork. As both former Lord Chancellors have said, the Manual of Military Law is a statement of public international law affecting officers and soldiers, and is intended for their benefit. Therefore, to alter the wording of the Manual unilaterally, as it were, in order to make it fit the opinions of soldiers and lawyers, however distinguished, in this country, would have no effect throughout the world. It would no longer be a true interpretation of international law. That is the first objection, which was put very forcibly by my noble and learned friend Lord Jowitt, and by the noble and learned Viscount, Lord Simon, and I will not proceed any further with it.

The second objection is a human one, and I want to make it, partly because it has not been made at all and also because this is the sort of case that will appeal to the ordinary people of this country. I think the noble and gallant Earl, Lord Cork, and those who support him, should have put both the strength and the weakness of their argument and not confined themselves to one side.

THE EARL OF CORK AND ORRERY

My Lords, I think the noble Lord misinterprets my purpose. My Motion is concerned simply to ask that these rules might be looked into by a competent committee. It has nothing to do with all the subjects we have been talking about.

LORD OGMORE

The noble and gallant Earl understands, no doubt, that when we ask the High Court of Parliament to do something of this kind, we have to show grounds for it. That is what he and other noble Lords have been speaking about. The Government, with all their preoccupations—I do not say whether their preoccupations could be avoided or not—are hardly likely to give themselves another preoccupation on an important matter of this kind unless they are convinced that there are good grounds. No one objected to the noble and gallant Earl or his noble and gallant friends from putting forward what they said were the aims of this Motion.

LORD CHATFIELD

We argued this matter two years ago. It seems a great pity to argue it all over again.

LORD OGMORE

I do not know that any of us wanted to argue it, but it has been argued by a succession of noble and gallant Lords to-day. With great fervour and feeling, they put forward a case for an inquiry—indeed, they went further than that, in a sort of naval and military style, and made a great case for a change in what they hold to be the wording of the new Amendment to the Manual.

THE EARL OF CORK AND ORRERY

We have had nothing to do with babies or mothers-in-law.

LORD OGMORE

I will not argue with the noble and gallant Earl about babies and mothers-in-law; I am sure that he is a far greater expert on them than I am. We will get away from the baby and mother-in-law standard for a moment, and return to what I call the human position. What noble and gallant Lords have been doing is to look at this question from the point of view of a soldier or a sailor, and quite rightly so: they are distinguished representatives of their Service. Some of the greatest admirals and soldiers we have ever had have spoken, and we are grateful to them for the advice they have given us. However, they have looked at it from the point of view of the soldier or the sailor, and not from the point of view of the sufferer. It is with the point of view of the sufferer that I propose to deal for a moment. There is often in this country far more sentiment for the person who commits the crime than there is for those who are injured by the crime. What happens in a case where there is a brutal crime, an atrocity, ordered, perhaps, by a junior officer? If what noble Lords suggest is to be the case, then the soldier has no option, bur must commit that crime, even though all his sentiments are against it.

What happens to the sufferer? Is there to be no punishment for the man who bayonets a woman or child, simply because sonic, perhaps, drunken officer has ordered him to do so? When considering this question we always think of a British officer and a British soldier. But remember that you may have the case of a British woman or child being bayoneted by a foreign officer or soldier. Many of us remember the slimy trail of the Gestapo in France and Belgium, and of the Kampetei in Burma, Malaya and Hong Kong. This is no exaggeration. The brutalities of the German and Japanese Armies were manifold. Is a Japanese soldier to get away with a brutal crime committed on one of our countrywomen, or a British child, merely because he has had an order from some superior officer? We must not think that this is only a case affecting the British officer or soldier; we must think of it, also, as affecting the British civilian.

LORD GIFFORD

Surely, to-day we are discussing the British Manual of Military Law. It has never been suggested that a Japanese soldier is subject to that.

LORD OGMORE

if I may say so, that is where the noble Lord and all his colleagues are wrong we are discussing an international law, not a domestic law. Chaper 14 of the Manual of Military Law is supposed to give the British interpretation of international law. We cannot say that this piece of international law applies to British people but is not to apply to the Japanese; it must apply to everybody. The failure to realise that point has been manifest throughout the speeches of noble Lords who have spoken. I suggest that we want to be careful about this matter, because we may be allowing a loophole for the escape of some blackguard in the future—certainly of a foreign army—who has maltreated one of our own people. I have no doubt about the British soldier or officer; he does not commit offences like this. But we know that in other armies they have done, and will do again, if we are unfortunate enough to be against them. We must be careful that no loophole is provided. If they know when they are committing a brutal atrocity that they personally may be held responsible for it, they are less likely to do it.

My third difficulty is that I do not see what is the use of a unilateral decision. If no one else agrees with us on this point, what weight would it have? In other words, it must be part of the general body of international law, and it must be in the stream of jurisprudence which affects all armies and all peoples.

LORD SALTOUN

I apologise for interrupting the noble Lord when so many other noble Lords have done so, but we are arguing against a change in the present Manual of Military Law which we fear is going to be made without concurrence. We are trying to keep it as it is printed to-day. I think the noble Lord is under a misapprehension.

LORD OGMORE

It seems almost impossible to get noble Lords to appreciate this point. We have already heard from two highly distinguished ex-Lord Chancellors—I do not know what the present distinguished occupant of the Woolsack will say, but I presume that he is likely to say the same as they did. The point is that they say, with all the weight of their authority, that this is a wrong statement. What is the use of keeping in our Manual, which goes out to officers and men in the Forces, a statement which is wrong? It will not protect them if they are captured and tried for what is alleged to be a war crime, because people will say: "This is a wrong statement, and the true international law is that orders do not absolve you from responsibility."

An interesting suggestion was made by the noble Earl, Lord Wavell, as to how far down the chain of command you can go to ascertain where responsibility may truly be imputed. I think that that was answered by my noble and learned friend Lord Jowitt, in saying that it is difficult to stop anywhere on the chain of command. It may be, however, that in these modern times the Government will look at the recognised rules of warfare—it is said that there are not any but for many centuries it has been supposed that there are—as defined in Paragraph 442 of the Amendment to Chapter 14, and see whether it is necessary to bring the rules of warfare into line with modern conditions: in other words, to see whether the rules of warfare as contained in the Manual are out of date and whether it will be possible to bring them into line with modern conditions, so that it will be certain that a person who commits certain acts in war is no longer committing a war crime within the definition of that particular paragraph. Knowing that the noble and learned Lord, the Lord Chancellor, is itching to get into the fray, if I may use that expression, I will resume my seat, saying that I realise only too fully the difficulty of the Government in this matter, and hoping that, with the accumulated wisdom they have had to-day, they will arrive at a true and just decision.

THE EARL OF CORK AND ORRERY

I gather from the last two sentences of the noble Lord that he will support my Motion, which asks to have these orders reconsidered.

LORD OGMORE

My own view is that, while not having an unduly high opinion of the present Government, think they are well capable of considering a matter of this kind without the assistance of such an authority as is suggested.