THE MANUAL OF MILITARY LAW

HL Deb 14 May 1952 vol 176 cc1013-23

5.51 p.m.

Debate resumed.

THE LORD CHANCELLOR (LORD SIMONDS)

My Lords, the noble and gallant Earl who initiated this debate interposed towards the end of it to observe that most of the speeches had been directed to something else and not to his Motion. I venture to think that there was some justice in that criticism for as I understand his Motion he was not directing himself to the question of what the law ought now to be, but was directing himself solely to this: that in the revised edition of the Manual of Military Law, this Chapter which deals with the laws and usages of war should be submitted to a competent tribunal. That, I think, was all he had in mind. I am bound to say that, having listened to him, and having listened to the other noble and gallant Lords who have spoken in favour of his Motion, I am left completely in the dark as to what that competent tribunal is supposed to be, although I gather that, by a process of exclusion, lawyers, who, at any rate, might be supposed to know something about international law, are excluded from that body.

THE EARL OF CORK AND ORRERY

My Lords, if I may interrupt the noble and learned Lord. I mentioned lawyers first. I had in mind that it should be principally lawyers, but with military, naval and Air Force officers attached who could keep them right on technical matters.

THE LORD CHANCELLOR

No doubt I put it too high, and I do not wish to put more on the noble and gallant Earl than I should. I think I can help him and those who have supported him to a very great extent by telling them what happens, and has always happened, in the preparation of this Chapter of the Manual of Military Law. From the beginning of this century it has always been one of the most distinguished international lawyers who has been called in to draft this Chapter. At first it was Professor Hollond who was, I suppose, the outstanding international lawyer of his day. Afterwards it was Professor Oppenheim. Then and now—

LORD HANKEY

With great respect I venture to intervene Chapter 14 of 1912 was, to my immediate and intimate knowledge—for I was secretary to the Committee of Imperial Defence, and this was done as part of the War Book with which I was concerned—written by Brigadier Edmonds, who afterwards became the official historian of the war. He is still alive at the age of ninety-two, and therefore can be consulted about it. I have consulted him about it, and I was concerned with it at the time. It was written by him and vetted afterwards by Professor Oppenheim on Lord Haldane's personal suggestion. But he did not write the Chapter and, as I have already explained, refused to put his signature first.

THE LORD CHANCELLOR

I do not think there is very much between the noble Lord and myself I repeat what I have said. In the first place, Professor Hollond, who was the greatest international lawyer of his day, was called in, and for a subsequent edition Professor Oppenheim was called in. I believe I used those actual words, and I do not think they differ from what the noble Lord has said. After Professor Oppenheim died in 1920, Professor Lauterpacht, who was, I think, his pupil, and had certainly worked under him, took Professor Oppenheim's place.

LORD HANKEY

I very much regret to have to ask for the attention of the House again for one moment. Everybody forgets that Professor Oppenheim died in about 1920, and that there were two editions before Professor Lauterpacht ever came on the scene. Both of those editions adhered to the old rule.

THE LORD CHANCELLOR

After Professor Oppenheim's death, Professor Lauterpacht himself edited Oppenheim's book, and he was also called in to help revise the Chapter of the Manual of Military Law which is in question. By what I think was a great misfortune, although he had edited a new edition of Professor Oppenheim's book in 1940, in which he stated the relevant law in the way in which it is now stated in the Manual of Military Law, the Amendment was not made in the Manual of Military Law until 1944.

Professor Lauterpacht has again been called in to help re-write this Chapter of the Manual of Military Law in the light of all the developments which have taken place. Here is the point which I venture to think will be of the greatest assistance and comfort to the noble and gallant Earl. In this case the procedure to be followed will be that which has, I think, been followed on previous occasions—at any rate, it will be followed now. In order that I may be quite accurate, noble Lords will perhaps forgive me if I read this part of my speech. The present proposal is in accordance with the previous practice of the War Office with regard to this Chapter—namely, that after Professor Lauterpacht has prepared the first draft it will be submitted to the various interested Directorates of the War Office—in particular the Directorate of Military Intelligence and the Directorate of Army Legal Services—for close scrutiny and consideration and for suggested amendments, and so on. I am not, of course, concerned with the hierarchy at the War Office, but I cannot imagine that the responsible authorities at the War Office will not take into consideration the suggestions made by the noble and gallant Earl and the other noble and gallant members of the House who have spoken.

Now whether that is a competent tribunal or not I do not know, but I cannot think of any other body which could be called a competent tribunal, or, indeed, which would be more competent to deal with this subject. It is obvious that Professor Lauterpacht must play a large part in the guidance of the authorities as to what is in this Chapter, for he is dealing not with what ought to be but with what is the international law on this subject. I yield to nobody in my high regard for the noble Lords who have spoken, but I cannot think that their opinion as to what is international law can outweigh the opinion of a man like Professor Lauterpacht, who studied under Professor Oppenheim and who is, I think, the outstanding authority in the country to-day on this subject. Therefore, inevitably it must be Professor Lauterpacht who guides the team. But everything that he does will be submitted to the military and naval authorities, and undoubtedly they will have the last word. They may disregard what he says is the international law; of course, they may.

I want to add this in regard to the compilation of this book, for this is how my instructions read, and they come from the War Office. Thereafter—that is, after the draft prepared by Professor Lauterpacht has been scrutinised by the various Service Departments—it will have to be considered by the other Service Departments and the Foreign Office, and when the text has been agreed it will in all probability be submitted for the consideration of the Dominions Governments. At the same time it should be emphasised that it is considered of the greatest importance that the final text of this Chapter should be agreed in the closest collaboration with the United States War Department which is at the present moment undertaking a substantially similar work in regard to their publication on the rules of land warfare. I hope that statement will very substantially satisfy the noble Earl who moved this Motion, for if he can suggest any other competent tribunal to deal with the matter I am sure the War Office, for whom I now speak, will be very glad to consider it. There you have the best legal authority, the Service authorities, the Foreign Office, consultation with the Dominions and close collaboration with the United States of America. How are you to get a better statement, not of what ought to be the law but of what is the law?

I venture to think there has been some little confusion upon one matter which arose out of the statement by the noble and learned Earl, Lord Jowitt, that the Manual of Military Law was not an authority. I am sure that he meant that it was not what the noble and learned Viscount. Lord Simon, calls an enacting book. It does not make the law, of course, but it states the law and is intended to guide the officers who read it. Let me repeat what has been said already by another speaker: what is the use of a Manual of Military Law for the guidance of officers if it does not state as accurately and as authoritatively as possible what is the law?

There is another suggestion, an indication, in the noble Earl's Motion that before the new edition is published there should be an inquiry. Although I am a little puzzled by the terms of his Motion, I think it is implicit in this part of it that there should be an inquiry whether the law should be altered. As to that, I would say that it is quite impossible to delay the publication of the new edition of the Manual until such time as there has been not only an inquiry but consent by all the other States interested, so that you can say: "This is the rule of international law." The revised edition must go out with the law as we believe it to be. If it were possible at some future time to have an inquiry demanding a conference of all the civilised States; and if you got that, followed by agreement as to what the law should be; and if you got agreement (to my mind, an agreement impossible to get with all civilised States) that in all circumstances obedience to orders should be an absolute excuse; if you could get all that, then you could produce in your revised edition that new statement of military law.

VISCOUNT MAUGHAM

I hope the noble and learned Lord will forgive me for one moment, but this is a very important point. If the form of the rule which is now in Chapter 14 of the Manual of Military Law is regarded simply as a rule of international law, how is it possible for us and the United States together either to state that that is a right view of international law or to talk about amending it simply by the will of Great Britain and the United States of America? I know, and I have no doubt the noble Lord on the Woolsack knows, that there is a complaint among international lawyers in Europe that there is a tendency of Britain and the United States to form the international law for themselves. But surely that is not the view which is taken here.

THE LORD CHANCELLOR

I think the noble and learned Viscount has quite misunderstood me. The task of those who compile this Chapter will be to state as accurately as possible what is now the rule of international law. In performing that task, we shall collaborate with the United States of America, not to make new law but to ensure, so far as we can, that we agree and state accurately what is the law; because it would be a deplorable thing if this country and the United States of America, having a common object to state what is the law, stated it differently. That, and that alone, is the purpose of our collaboration—not to make new law.

I venture to think that I have really dealt with the Motion moved by the noble and gallant Earl; but of course I am far from supposing that I have satisfied these noble Lords; who think that the law ought to be altered. I will say one word about that presently. I think it would be right, having regard to what has fallen from so many lips, to assure them that the statement which, for the first time found its place in 1944 in the Manual of Military Law does represent the consensus of international opinion as to what the law is. I myself think that long before 1944 that rule of law had become established. International law has been a matter of growth from the time of Grotius through the centuries. Sometimes it becomes embodied in a Convention to which the several States have put their signature, and that is the most satisfactory way of its development. At other times it grows through the opinion of international lawyers, and gradually becomes accepted by the municipal courts.

I venture to assert that it is now a rule of international law, and has for years been a rule of international law, that obedience to orders of a superior is not an absolute defence to a man charged with crime. As long ago as 1921 it was the German court, the highest court at Leipzig the Reichsgericht which was entrusted with the duty, as some of your Lordships may remember, of trying German war criminals. Your Lordships may remember the curious arrangement made whereby we allowed the German courts to try their own war criminals: and amongst other criminals they tried the officers of a submarine which had sunk the "Llandovery Castle," and there it was argued in favour of the prisoners that they had acted under superior orders. The German High Court, which was a very good Court indeed, the Supreme Court at Leipzig, held that international law did not justify obedience to superior orders as a valid defence where a crime was committed. That was as long ago as 1921 in the highest Court in Germany. Whether that increased the pace I do not know, but undoubtedly there was a growing consensus of opinion which already I think had become general by 1940 when Lauterpacht produced a new edition of Oppenheim's International Law. It was a great pity that that doctrine of the law was not incorporated at an earlier date in the Manual of Military Law, but at any rate in 1944 it was incorporated and it is the law to-day, as I firmly believe.

How can we say anything else? Your Lordships will remember that we set up the Charter of Nuremberg. What was said there? Let me remind your Lordships of the language of Article 8 of that Charter: The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the tribunal determines that justice so requires. That was our Charter, our statement of international law. And, lest anybody should say it was an ad hoc declaration purely for the purpose of trying our enemies, let me tell your Lordships what the judges of that tribunal said. These judges were British, French, American and Russian, and they all said that Article 8 is a correct statement of the law. How, in face of that, could we allege any other rule of international law but that which is contained in Article 8?

What we said in Article 8 of the Nuremberg Charter was repeated in almost similar words in Tokio, when the tribunal was set up to try Japanese criminals. Exactly the same principle of law was stated in Law No. 10 of the Allied Control Council of Germany. The American regulations governing the trials of war criminals in the Pacific area contained the same regulations. The French ordinance of 1944 concerning the suppression of war crimes provides this: Laws decreed or regulations issued by the enemy authorities, orders or permits issued by these authorities, or by authorities which are or have been subordinated to them, cannot be pleaded as justification within the meaning of Article 327 of the penal code but can only in certain circumstances be admitted as extenuating or exculpating circumstances. Norway, too, was under the enemy heel, and Norway passed a law on December 12, 1946, which contained the following provision: Necessity and superior order cannot be pleaded in exculpation of any crime referred to in Paragraph 1 of the present law. The court may, however, take the circumstances into account and may impose a sentence less than the minimum laid down for the crime in question or may impose a milder form of punishment. In particularly extenuating circumstances the punishment may be entirely remitted. I could go on but I should weary your Lordships. I could go on across Europe even into Poland, where also the fact that an act or omission was caused by a threat, order or command does not exempt from criminal responsibility. So also with Austria and so with other countries. And may I end with a quotation from Dr. Goebbels? In an article published in the German Press on May 28, 1944, Dr. Goebbels said: No international law of warfare is in existence which provides that a soldier who has committed a crime can escape punishment by pleading as his defence that he followed the commands of his superiors. I am not saying that the law ought not to be otherwise. That may be so or it may not. But there is such a concensus of opinion to-day that it would be impossible for our Manual of Military Law to contain any statement other than that which since 1944 has been in the present Edition which Professor Lauterpacht is revising. I am not quite sure how far I am justified in saying this, but I have had the advantage of seeing the galley proofs of the relevant part of the new Edition of Oppenheim's International Law which Professor Lauterpacht is also editing and I do not think that is going to depart in any way from what he wrote in 1940. The words may be different and he will supplement what he has said by examples from the post-war trials, but in substance he will adhere to what has been said and what is accepted by international lawyers as the law in this regard.

In spite of some of the arguments which have been adduced, and which, with great respect to the noble and gallant Lords who have spoken, I regard as grossly exaggerated, for as long as any of your Lordships who have been in one of the Services can remember—and for very much longer than that—it has been the law that a soldier is bound to obey only lawful orders—nothing else. That has been the law for more than two centuries and it has been fortified by decisions of the High Court. Has that subverted discipline? Have there been cases where the sea-lawyer or the barrack-room lawyer or whoever it may be has paused to consider whether it is an order he ought to obey or not, and has thought fit to call up his solicitor or something of that kind, as was suggested by one noble Lord? No. The noble and gallant Field Marshal has had long experience in, I think, the 60th Rifles or the Rifle Brigade, and other noble Lords have served in the Brigade of Guards. They must know that the soldier is bound to obey only lawful orders and that discipline has not suffered.

If I had to consider whether the law should be altered, I should hesitate long, and for this reason. There is no doubt that while on the one hand obedience to orders of a superior is not an absolute excuse, yet it will be and must be taken into consideration when you are considering punishment. And I can well conceive that any tribunal entrusted with the duty of trying a man charged with a crime who pleaded that he had been acting under superior orders would entertain a tender feeling for him if he said, "I had to shoot or be shot at"; or if he said. "There was nothing in what I did that was revolting in any way to my conscience: I was not ordered to burn babies or anything of that sort, and how could I know that this was not a lawful order?" In such cases even if it was thought fit to prosecute a man it is unlikely that he would suffer any punishment. I do not believe that in the stress of war a consideration of that sort would arise, any more than in times of peace it has arisen merely because a soldier is bound to obey only a lawful order. I believe that the whole argument—I say it with the greatest respect—is a mare's nest, based upon theory and not upon any experience at all. I have completed all that I had to say. I urge noble Lords not to support the Motion which the noble and gallant Earl has moved, because, as I see it, everything for which he really asks can be provided and will be provided by the procedure which I have indicated.

6.21 p.m.

THE EARL OF CORK AND ORRERY

My Lords, as the noble and learned Lord, the Lord Chancellor, has observed, the House has ranged over a great number of subjects and has gone into all sorts of alleys and byways into which it was never contemplated by me that we should go. When I was asked how long the debate was going to be, I sail that I thought we should be finished by half-past four. I did not anticipate that so many members of your Lordships' House would speak. I feel that this Motion has not been thrown away. It has been on the Order Paper for some lime. It was put down on the Order Paper when I was told that the Manual of Military Law was coming out this summer. Now the Lord Chancellor has told us what is going to happen. We are to have all these inquiries, and it is quite certain that it cannot come out this summer.

There is one other point I should like to make, returning to the discussion on what we should do with war criminals. The point which is at the back of my mind is that an enemy is entitled to try and punish a soldier if he is a war criminal. The noble Lord, Lord Ogmore, who spoke from the Opposition Front Bench, pointed out that marauders had not been mentioned. The marauder is an enemy of all mankind, a war criminal, and the legislation as it now stands obviously is designed to deal quickly with those people. It was laid down quite clearly that a war criminal taken prisoner can be punished for what he did by an injured belligerent, who is entirely free to decide what sort of court he shall go before. If our soldiers are captured, they can now be called "war criminals," and the "highly educated, intelligent and humane" people we are fighting now and are going to fight for many years to come have in their hands, and by our books, absolute power to deal with our own men. My great objection is that our men should be called "war criminals" and so rendered liable to this fate.

May I detain the House for one more minute? Take this case. It was suggested that a line should be drawn. I suggested it, and the noble Earl, Lord Wavell, suggested it. I suggested that the line should be drawn between those who can carry on their deliberations and give their orders in comparative comfort and quiet, and those who are actually fighting the battle. Those people who have time to think about things cannot get into the enemy's power until the fighting is over. The soldier may be one moment a soldier and the next moment in the hands of the enemy, with everybody "seeing red." Eventually the people who have given orders in comparative comfort will be tried. The victor will try them. They will be tried in a judicial atmosphere. They will be tried where they can have a proper law court and all that sort of thing, whereas with the soldier it is different. He will be taken, say, before three Korean officers, and shot. My whole idea was rather to try to get some protection for these men against the possibility of their being treated in that way. We could not give them very much protection. However, I feel that this time we have gained a moral victory. I do not propose to ask the House to divide, because the noble and learned Lord, the Lord Chancellor, has now given the promise that this matter will go up to the War Office and the other Service Departments, where I hope this time it will be looked at by some soldiers, sailors and airmen, because on the last occasion they never knew anything about it; it was all settled by the Law Departments. Great admirer as I am of lawyers, they do sometimes make mistakes. We had a wonderful example of that the other day. I apologise if my Motion has kept the House for so long. I now beg leave to withdraw it.

Motion, by leave, withdrawn.