§ 3.45 p.m.
§ THE EARL OF CORK AND ORRERY rose to ask Her Majesty's Government what the position now is as regards the publication of a new edition of the second volume of the Manual of Military Law, with particular reference to Chapter XIV. The noble and gallant Earl said: My Lords, before actually putting the Question which stands in my name, it may, I think, be of some use and interest if I point out that this Question requires an Answer; and that it is of public interest and of interest to everybody who has or will have a relation of military age. It may be remembered that in the years 1949, 1950, 1951 and 1952, certain paragraphs, in particular Chapter XIV, of the Manual of Military Law were the subject of debate in your Lordships' House. Chapter XIV is that chapter which deals with the question of war crimes and the relationship of prisoners of war to that particular rule.
The original order in regard to this question laid down—I am quoting from the Manual of Military Law, that:
It is important to remember that members of the Armed Forces who commit violations of the recognised rules of warfare as ordered by their Governments, or by their commanders, are not war criminals, and cannot therefore be punished by the enemy. … He may punish officials or commanders responsible should they fall into his hands.
The amendment, which was made known to the military Services at the end of 1944, substituted for the words I have just read the following:
The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government, or by an individual commander, does not deprive the act in question of its character as a 'war crime.' Neither does it confer upon the perpetrator immunity from punishment by the injured belligerent …
In fact, the captor is given the right to punish his captives for crimes committed prior to their capture, if they come under the heading, or he judges them as coming under the heading, of war crimes.
§ There is plenty of proof that this is exactly what has happened, from those who oppose the wording of this amendment on the ground that it would put our officers and men in an impossible position if they fell into the hands of the enemy. They have been proved by events to be absolutely right. We have the 448 Hanley Report, the evidence of the witnesses taken by the United States War Crimes Commission and submitted to the United Nations Assembly, which gives ample detail of how prisoners were treated. We have also the evidence of repatriated ex-prisoners of many nationalities, and of our own men who have returned, and together they make very grim reading. In December last the United Nations General Assembly passed a very mildly-worded Resolution condemning the atrocities committed by North Korean and Chinese forces against United Nations prisoners of war in Korea. It was a general indictment and did not discriminate between war crimes and those of a general nature; but the Chinese and their allies did discriminate.
§ I will mention one case out of a long list. An American soldier who could not go on was taken out before his comrades, his hands were tied behind his back and he was charged with a war crime. He was told he had been found guilty, was not allowed to say one word in his defence, but taken away to a hill and told to run. When he started to run an officer and three guards shot him in the back. The officer then went up to him and blew his head off. It is not a pleasant thought for those who have young men in whom they are interested going to the Front, to know that that might happen under a war crime heading. There may be hundreds of these cases: that is merely a sample.
§ In the summer of 1952 Pekin radio made known to the world that the Chinese and North Koreans were going to respect the Geneva Convention on the treatment of prisoners of war, and they put in a reference to the Nuremberg and Tokyo charters. This led The Times correspondent in Korea to speculate as to how this would react against United Nations aviators charged with germ warfare or terror raids. Now we know. In answer to a question in your Lordships' House on May 4, the House was told that many members of the British forces while prisoners of war were accused of having committed war crimes. They were asked to confess to these "war crimes" and were told they had been found guilty and were punished. We were also told that Allied soldiers were subjected to a combination of threats and persecutions for propaganda purposes. How many 449 met their deaths through such treatment nobody can exactly tell. The Government cannot know, for there was no protecting Power to make what ought to have been a proper communication on the subject; and it is quite easy to see why the term "war crime" has been held on to by the Chinese and North Koreans. The penalty for a war crime may be death. That is put down quite clearly; and dead men tell no tales.
§ Some noble Lords may have read a book recently published called The Edge of the Sword, written by Captain Farrar-Hockley, who was the adjutant of the Gloucester Regiment when that Regiment distinguished itself at the Battle of the Imjin River. He was for two years a prisoner. Therein are many references to what use the Chinese and North Koreans made of the term "war criminals." Whenever anything bestial or horrible was about to be done to a prisoner, he was told he was a war criminal and the inference was that he deserved nothing better. No defence was allowed on these occasions. Captain Hockley describes two trials that he witnessed. On neither occasion was any defence of any sort allowed. Prisoners were told they were war criminals, and the kind of trial involved, were it not so tragic, would be ludicrous. At the end the prisoners were told by the president of the court that the court had been conducted in accordance with the Geneva Convention. That court consisted of three Korean officers.
On May 14, 1952, over two years ago, a debate took place upon the wording of the particular amendment which allowed of such happenings. Strong feeling was shown by several noble Lords who objected to that wording and to the impossible position in which it would place our men in future. I must say that that is borne out by the events. A Division was averted by a Government undertaking, given by the Lord Chancellor. In order to be accurate I will read what the Lord Chancellor said, as he has his eye on me and I do not want to misquote him. His words were (OFFICIAL REPORT, Vol. 176, col. 1016):
I want to add this in regard to the compilation of this book"—
that is, Volume 2 of the Manual of Military Law—
''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 … 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 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 moment undertaking a substantially similar work.'
And then the Lord Chancellor added:
I hope that statement will very substantially satisfy the noble Earl who moved this Motion.
It did satisfy him, but he and many others thought what a great pity this had not been thought of before.
§ However, that was two years ago and since then nothing has happened. It is impossible to get a copy of that Chapter of the Manual of Military Law at the Stationery Office although it is the text book for officers to learn what is the law under which they have to work. Delay is sometimes dangerous, sometimes beneficial; and I hope we are now to hear that, the matter having gone round all those people, some text has been agreed upon to allow us to scrap the Lauterpacht text and to reword the regulation in a much more robust way, so as to afford more protection to unfortunate officers and men who may become prisoners of war. I beg to ask the Question standing in my name on the Order Paper.
THE LORD CHANCELLOR (LORD SIMONDS)
The Question which the noble and gallant Earl put upon the Order Paper is this:To ask 'What the position now is as regards the publication of a new edition of the second volume of the manual of military law with particular reference to Chapter XIV'.I am prepared to answer that Question. It is intended to publish the new edition of Volume 2 of the Manual of Military Law chapter by chapter as the material becomes available, and it is hoped that Chapter XIV will be published in about twelve months' time. That is the answer which I am able to give. I much regret that I cannot follow the noble and gallant Earl into the disquisition which he has given to your Lordships' House on the subject of war crimes in Korea and so on. It does not seem to arise out of the Question and I am wholly unprepared to answer it. I have, however, sent for 451 a copy of the speech I made in 1952 and I will supplement a little of what I said then. What I said was this [OFFICIAL REPORT, Vol. 176, col. 1015]: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.Then I went on to say: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.I have not the least doubt that that is so; I repeat it.
I went on to observe that time must be spent on this matter because it was very desirable to consult with the United States War Department upon it, not indeed, as I pointed out, in order to state what the law ought to be, but to state what—so far as it can be determined—is the state of International Law at this time. It is no use whatever talking about what the law ought to be. What we want to do is to determine, so far as possible, what the law is upon this subject. What the law ought to be may be determined by international conventions, of which the Geneva Conventions are a type; and as your Lordships are well aware the Geneva Conventions, although they have been ratified by this country, have not yet received legislative sanction. I hope that the noble and gallant Earl will not think me guilty of any discourtesy if I do not go into a discussion of the matters which he has raised. The last thing I would do would be to be discourteous to him, but I am not prepared to discuss matters which this Question does not seem to raise. That is the best answer which I can give to the noble and gallant Earl.
THE EARL OF CORK AND ORRERY
My Lords, I can speak again only by leave of the House, but if I may have your Lordships' permission I should like to say that I never expected the Lord Chancellor to give me any other answer. What I should like to ask is what is the 452 Manual that is supposed to tell officers what they are to do in certain circumstances—and in certain circumstances their lives may depend on knowing the right thing. What book are they to follow? They cannot go around with Professor Lauterpacht's book in their pocket. I know it, and it is a fairly bulky volume.
§ THE LORD CHANCELLOR
In answer to that, I may say that I will certainly convey to the proper quarters what the noble and gallant Earl has just said. So far as I know, the Manual of Military Law now states what the law is in regard to the point which the noble and gallant Earl has raised. I dealt with this matter at very considerable length in my speech to which I have just referred. The same matter was referred to in an earlier debate in this House. The noble and learned Earl who leads the Opposition then said substantially, and no doubt in better words, what I said at a later date. The law really is not in doubt—although it may be difficult sometimes to apply it—and I do not think that any officer need carry about in his pocket that volume of Professor Lauterpacht. He should have no difficulty in knowing what the law is. As I have said, I will convey to the War Office what the noble and gallant Earl has said.
§ 4.5 p.m.
§ VISCOUNT STANSGATE
My Lords, it is probably very bold for a civilian to interpose between the Lord Chancellor and a very distinguished officer, but I must say that I do not think the noble and gallant Earl's question has been answered at all. The art of warfare is becoming more horrible and devilish every day. I have the latest edition of the Manual—the 1936 edition—and it is impossible to know whether it is a war crime or not when an officer applies the latest chemical methods of exterminating mankind. It may be, and no doubt is, a very difficult thing to compile a manual of law in order to guide people on this and to get international agreement upon it. But I think it is an insufficient answer to refer to a publication produced in 1936, seeing that the hydrogen bomb and the atom bomb and all sorts of other things have happened in recent years. It seems to me that the answer, in the circumstances, is quite insufficient, though I 453 fully realise the difficulties to which the noble and learned Lord who sits on the Woolsack has referred.
§ THE LORD CHANCELLOR
I do not think that the noble Viscount has read the Question. The Question to which I replied was: What is the position now as regards the publication of a new edition of the 2nd Volume of the Manual of Military Law? I have told the noble and gallant Earl and the House what the position is.
§ VISCOUNT STANSGATE
It must be obvious that the noble and gallant Earl was not just asking for a timetable: he did not simply want to know when this thing was coming out. He was referring to the fact that in the present state of affairs there is no authoritative document to show whether the Chinese were right or wrong when, in North Korea, they tried officers of ours for certain alleged offences. We are told that a year mast elapse before there is any chance of the new publication coming out. The public are very much interested in this matter, and that being so the public will be severely disappointed at the reply which the noble and learned Lord has given.
§ THE LORD CHANCELLOR
If the noble Viscount wants a different answer he must put down a different Question and I will endeavour to answer it.