PUBLIC
RECORD OFFICE
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Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
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I think there is some misunderstanding with regard to what was pro- posed with reference to applying the Army Act. Of course the Army Act, per se, cannot be applied so as to have statutory force over prisoners of war. was to make, I imagine that what was meant by "applying the Army Act under the prerogative powers of the Crown, regulations of the same nature for prisoners of war as exist for officers and soldiers under the Army Act, and that, of course, it would be legally possible to do so as far as the nature of the offences and procedure laid down by the Army Act render it possible. The rules in their present shape say that all prisoners of war will be subject to military law.
I do not like the expression "military law," because it has a definite legal meaning under the Army Act which would be inapplicable to these prisoners of war, and I certainly prefer the expression "military discipline." The nature of this discipline appears under the rules to be left to the dis- cretion of the Commanding Officer, who is to make regulations for the safety, good order, and discipline of the place. The Commanding Officer is to have certain summary powers under Rule 16, and civil offences are to be disposed of by the civil courts.
I have endeavoured to consider this question from the point of view of a Commanding Officer upon whom it falls to make orders under Rule 5, whether with or without some general directions to follow the Army Act as, proposed by the Indian Government.
Now, without attempting an exhaustive analysis of the first part of the Army Act, I have considered it sufficiently to see that a Commanding Officer would have great difficulty in applying its provisions to prisoners of war. A number of sections, e.g., Sections 4, 5, 12, 13, 14, 16, 17, 20, 21, 23, 24, 25 and, no doubt, many others, for instance, 30 to 35, are applicable only to soldiers and officers serving in the British Army, and cannot, by any means, be applied to prisoners of war. There are other sections, e.g., Section 6, sub-sections (d) to (g) inclusive, which, although under the Army Act only apply to British soldiers, suggest that offences of an analogous character would have to be applied to prisoners of war (some of these offences are, no doubt, civil offences).
A similar remark applies, for instance, to sub-sections 1 and 2 of Sec- tion 7, which would be very serious offences on the part of a prisoner of war.
The group of sections dealing with insubordination (Sections 8 to 11) would probably be applied as regards the offences to prisoners of war, but it would be necessary for that purpose to define who is the superior officer and, generally, what is the system of military discipline to be enforced on prisoners of war, and who are the people entitled to give lawful orders, the disobedience of which would constitute an offence. I am dealing, so far, with the nature of the offences to be recognised; for instance, there is the offence of inducing desertion under Section 13. Is that to be applied to prisoners of war? Sec- tion 15, absence from duty without leave, might, to some extent, be adopted. Section 18 also might to some extent be applicable. Section 22, attempts to escape, would probably have to be specially dealt with. Query, if Sections 25 and 27 might not, in some cases, be applicable. If a system of military courts similar to courts-martial is established, the offences in relation to courts-. martial would have to be applied to Sections 28 and 29. Sections 38 and 40 would probably be applicable.
I think an examination of these various provisions would show that it is at least open to consideration whether it would not be desirable to define in some model code the offences of which prisoners of war may be guilty, leaving, perhaps, an additional power to the Commanding Officer to lay down particular offences and regulations applicable to local circumstances.
The question of civil offences requires separate consideration. If of a serious nature they should, as a rule, be dealt with by a civil court, to which prisoners of war are subject in the same way as any other inhabitants of the country.
Is it not worthy of consideration whether cases might not arise, e.g., an organised outbreak on the part of the prisoners where there was a weak guard, where it might be desirable that such an offence should be dealt with by
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military courts? Further, going to the other end of the scale, it would surely be desirable that minor offences, though offences against the civil law, e.g., petty assaults or larcenies, should be, in some cases, dealt with either by the Commanding Officer or by military courts in preference to dragging the
offenders before a civil court.
The
Another general question is that of the tribunal to try offences. Commanding Officer is apparently intended to have discretionary power to deal with all offences summarily, which is probably desirable, but should it not be laid down under what circumstances offences should be dealt with by military courts? The courts-martial provisions of the Army Act seem to me to require special adaptation for the purpose of being applied to these cases, and possibly also the Rules of Procedure.
The next general question is as to the nature of the punishment to be inflicted. Paragraph 16 of the Rules gives the Officer Commanding power to inflict detention up to 14 days, and to award any summary punishment awarded by the Army Act. These punishments include detention for 21 days (Section 46), and also include the power of fining; I very much doubt whether it would be appropriate or practicable to fine prisoners of war. are in receipt of pay, such as officers (see paragraph 17 of the Hague Con- vention), deductions might be made from their pay; otherwise I should doubt whether it is either desirable or possible to institute a system of fines for prisoners of war. In most cases in the rank and file their capacity to pay would be doubtful.
If they
As regards more serious offences, the question of infliction of death would be a serious one, and probably would rarely, if ever, be inflicted, except on the judgment of a civil court for murder; though there might be cases where it might be desirable to give a military court power to shoot prisoners of war in the case of an outbreak.
As regards imprisonment to be inflicted by a military court, I do not think that without legislation there is any power to inflict periods of imprisonment that would endure beyond the duration of the war, so far as military courts are concerned. A civil court may inflict such imprisonment as the law of the country allows. Further, in the case of military courts' sentences, administrative difficulties might arise in regard to the reception of the prisoners in ordinary prisons or penal servitude establishments, as to which some consultation with the Home Office might be necessary.
if you have some I should have thought that it might be useful to see precedent of regulations laid down for the discipline of prisoners of war which might assist in the consideration of the question.
It seems to me that before I can go to the Law Officers again the con- siderations which I have put forward should be taken into account, in order that you may decide whether you think it necessary to form something in the nature of a special code for these cases, or whether you think it is sufficient to leave it to the discretion of the Officer Commanding, with such instructions as he may receive at the time.
Possibly a personal interview might be useful.
March 15th, 1909.
A. H. D.
The War Office then referred the matter to a Committee (consisting of two military officers and representatives of the Treasury Solicitor and Judge Advocate- General), a print of whose Report, dated January 10th, 1910, is herewith, and have now instructed the Treasury Solicitor to obtain the opinion of the Law Officers upon the Report, and especially on the proposed code scheduled thereto.
The attention of the Law Officers and Mr. Rowlatt is called to the Hague Con- vention of 1907 with respect to the Laws and Customs of War on Land (Čd. 4175 herewith, page 46), superseding the old Convention of 1899 set out in Professor Holland's Book (Edn. 1904), which was before the Law Officers with the previous
Case.
The provisions as to prisoners of war occur at page 51 of Cd. 4175; the altera- tions from the former Convention are not of importance for the present purpose, and are indicated by the words underlined in the copies of Cd. 4175 accompanying this Case.
30851
A 2