A LAWYER and author of a book on the Breaker Morant case has hit back at the call to remove a Boer War veteran's name from Bathurst's Kings Parade memorial.
James Unkles says the veteran's family instead wants an independent inquiry to determine how he was treated by the British military at the time.
Mr Unkles was responding to Sydney Morning Herald columnist Peter FitzSimons, who said in a piece published on Anzac Day that Lieutenant Peter Handcock - who features on the Bathurst memorial - was a "convicted war criminal, who, among other atrocities, shot a fellow soldier thought to be a potential whistleblower and gunned down unarmed prisoners, a pastor and at least two Boer children".
Mr FitzSimons, whose latest book is Breaker Morant, said he was stunned last month when one of his researchers found Mr Handcock's name on the Bathurst memorial devoted to the honour of local men who served in the 1899-1902 South African War.
The Herald columnist said Mr Handcock was "the most dishonourable Australian soldier to disgrace Australia that we know of" and said his actions were calculated and cold-blooded and couldn't be explained away by the heat of battle.
Mr Unkles, however, who wrote Ready Aim Fire. Major James Francis Thomas: The Fourth Victim in the Execution of Lieutenant Harry "Breaker" Morant, said he strongly urges Bathurst authorities to reject the call to remove Mr Handcock's name.
He said the name should remain "in recognition of his loyal service to the Crown while doubt remains that Handcock was arrested, tried and sentenced in strict compliance with the law".
"While FitzSimons is entitled to express a version of history about the Boer War and these men, his conclusion that Morant and Handcock got what they deserved overlooks a fatal injustice at the hands of their British superiors," Mr Unkles said.
"It is an injustice that has drawn support for an independent inquiry from leading senior judicial figures, politicians and respected community leaders."
In 2018, a motion was tabled by Queensland MP Scott Buchholz in Canberra's House of Representatives that contained an expression of sincere regret and apology to descendants for the manner in which Mr Morant and Mr Handcock were treated.
Mr Buchholz described their sentences as illegal and said they suffered great injustice.
PETER FitzSimons' claim about Lieutenant Handcock's exploits during the Boer War and his insistence that Handcock's name be removed from the war memorial at Bathurst is disputed by Handcock's descendants.
They, along with the descendants of lieutenants Morant and Witton, advocate for an independent inquiry to determine how these men were treated by the British military.
The descendants argue these men suffered appalling injustice after a trial and sentencing process that was illegal according to military law of 1902.
IN OTHER NEWS AROUND BATHURST:
I strongly urge the Bathurst authorities to reject the call to remove Handcock's name from the memorial and ensure that his name remains in recognition of his loyal service to the Crown while doubt remains that Handcock was arrested, tried and sentenced in strict compliance with the law.
While FitzSimons is entitled to express a version of history about the Boer War and these men, his conclusion that Morant and Handcock got what they deserved overlooks a fatal injustice at the hands of their British superiors.
It is an injustice that has drawn support for an independent inquiry from leading senior judicial figures, politicians and respected community leaders.
In March 2010, I appeared before the House of Representatives Petitions Committee which concluded the case for an independent review as strong and compelling.
International jurist and author Geoffrey Robertson, AO, QC, also stated: "They were treated monstrously. The case of Morant and Hancock, the two men who were executed, is a disgrace. Certainly by today's standards they were not given any of the human rights that international treaties require men facing the death penalty to be given. But even by the standards of 1902 they were treated improperly, unlawfully."
In 2018, the injustice was addressed by a motion tabled by an MP in the House of Representatives.
The motion stated in part: "Lieutenants Morant and Handcock were the first and last Australians executed for war crimes, on 27 February 1902. The process used to try these men was fundamentally flawed. They were not afforded the rights of an accused person facing serious criminal charges enshrined in military law in 1902. Today, I recognise the cruel and unjust consequences and express my deepest sympathy to the descendants."
I disagree with FitzSimons' assertion that orders to summarily execute Boer prisoners were not given by British officers.
Evidence of such orders exist and were issued by Lord Kitchener in 1901 and other officers under his command in accordance with the principle of reprisal to address deadly outrages inflicted by Boer combatants against British soldiers.
Reprisal was a concept recognised by the law of the time and published evidence of George Witton corroborated evidence of Morant and Handcock that they held a reasonable and honest belief that the orders they were given were lawful and had to be obeyed.
The existence of such orders was also confirmed by the senior Judge Advocate who reviewed the evidence produced at the investigation that led to trials.
Col James St Clair's legal opinion is very clear. He named British officers, Captains Hunt and Taylor, who issued such orders to men serving with Bushveldt Carbineers, including Morant, who at one point was reprimanded by Hunt for failing to follow such orders.
The other aspect that has been ignored by critics is the appalling injustice suffered by these men, the denial of appeal to the Crown, and to state a military redress of grievance, rights enshrined in statutory and common law.
They and their legal counsel, Major Thomas, were also refused the right to consult the Australian Government for assistance.
The sacrifice of any Australian veteran in the past and present should be recognised and respected.
If doubts exist as to the manner in which they were treated by their Command, then this should be examined by an independent authority.
Such an inquiry would determine the facts and matters in dispute and provide reassurance that the rule of law is paramount when reviewing cases in which there is credible evidence of a miscarriage of justice.
Taking action in this case reflects Australian values enshrined in the rule of law and due process is as relevant today as it was in 1902.
Critics need to appreciate that unless allegations of war crimes are tried according to law, it creates a martyr, and unless military law is strictly followed, a sense of injustice having been done is the result.
My commitment to this case reflects years of advocacy on behalf of the descendants of these men. The end game is to address the injustice that these men suffered.
This case calls for assessment independent of government, hyperbole and opinion dressed up as evidence.
Senior legal counsel and former judicial officers who have reviewed the evidence I have compiled agree that this case needs an exacting assessment of evidence, findings of fact and an understanding of military law preferably by an experienced and retired judicial figure.
The New Zealand Government and Parliament achieved such an outcome when it considered the case of five New Zealand soldiers tried and executed by the British military during World War One.
The review by a retired judge led to legislation that granted posthumous pardons on compassionate grounds.
The same process could be used in the Morant case to finally bring this matter to a conclusion, otherwise the controversy will continue.
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