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Justices militaires et guerres mondiales

Jean-Marc Berlière
Jonas Campion
Luigi Lacchè
et al.

Licence not to Kill

British Opposition to Military Justice during the First World War

Anja Johansen

Texte intégral

1In August 2006, Private Henry Farr was granted posthumous pardon ninety years after he had been convicted for cowardice in a military court and executed in October 1916. This was the final victory in a twelve-years battle between Private Farr’s descendents and the British Ministry of Defence. Within a few months of the court ruling in favour of overturning Henry Farr’s original conviction, the Ministry of Defence issued a collective pardon to 306 men who had been executed for cowardice, desertion and other frontline offences, irrespective of circumstances (Armed Forces Act 2006).

2The errors, assumptions and misunderstandings that flourished in the British media reporting on the case are revealing of how executions during the First World War have gone down in British popular memory. The longstanding refusal of the Ministry of Defence to reopen the Henry Farr case also generated significant levels of public consternation in the press, and the posthumous group pardon was thus widely hailed in the British media. Yet highly-reputable press sources and tabloids alike were rather callous about the details, claiming that hundreds of soldiers had been executed for cowardice:

Hundreds of sodiers shot for ‘cowardice’ to be pardoned. (The Independent, 16 August 2006)
Hundreds of soldiers shot for cowardice during the First World War. (The Scotsman, 19 August 2006)
Pardoned: the 306 soldiers shot at dawn for cowardice. (The Telegraph, 16 August 2006)
306 British soldiers killed for so-called cowardice. (The Mirror, 29 October 2005)

3In fact, only seventeen soldiers were executed for cowardice during the entire war (Babington 1983: 228-231). Another misconception was that the 306 named soldiers who were granted collective pardon represented all of the soldiers executed in the First World War (BBC News 16 August 2006). This error implied an assumption that the Ministry was acknowledging that all executions at the front were unjustified. In reality, the Act only pardoned frontline offences, while soldiers executed for crimes such as murder were not included in the pardon (Armed Forces Act 2006, § 359).

4Similarly, it was broadly assumed that all cases of cowardice and desertion were due to shell shock. Accordingly, all executions were presented as miscarriages of justice against innocent men suffering from psychological damages owing to life in the trenches.

5British military justice in the First World War has gone down in history with a poor reputation as both unduly harsh and arbitrarily applied by officers and gung-ho civilians, with little or no understanding of legal principles and ignorant of the most basic concepts of due process. The granting of posthumous pardon was therefore only the final chapter in a criticism that emerged during the First World War and grew considerably after the end of the war. Ther can be a little doubt that British military justice failed to meet the standards that were expected for civilian court procedures; the military men who fulfilled the role as judges were not professionally trained for such a task; and many cases were tried with shocking callousness. However, criticism of military justice cannot be detached from its wider political context. Most notably, contemporary comparisons with German military justice had clear polemic purposes with the subtext that even the horrible Prussians treated their soldiers better than the British. The treatment of French and Italian soldiers in allied armies was passed over in silence.

6When criticism of British military justice first began during the First World War, actual information about both the executions and the functioning of military justice at the front was scarce. It was mostly based on information from individual soldiers and could not be verified or placed in context because all information was covered by official secrecy, which continued after the War and hampered the reopening of Private Farr’s case into the early 21st century. The British debate on military justice was not simply about fraught justice and comparative numbers of those executed. It was also an issue into which other civil liberties concerns could be canalised. Accordingly, executions at the front became the focal point for a variety of debates around civil liberties and the limits of government interference in the lives of individual citizens. And while executions at the front and the treatment of conscientious objectors (COs) are commonly analysed as separate issues, it is worth noting that the issue of executions at the front was raised and kept alive by some of the same people who campaigned for the rights of COs.

7This chapter traces the links between the public debates of frontline military justice and wider concerns for civil liberties, which gave British military justice during the Great War an enduringly poor reputation (Oram 2003: 1). It seeks to understand the severe criticism of frontline military justice as a product of wider cultural and political battles between civil liberties activists and supporters of the war effort. In the long term, it was civil liberties activists who won the moral argument, and the reputation of British military justice was one of the main casualties.

1. British Military Justice: Blurring the Lines between Civil and Military

8Until the outbreak of the First World War, the British army was for most civilians a world apart, with military justice clearly detached from civilian justice and applied only to men in active service. The British public was largely indifferent to the shortfalls of military justice, as the British army was based on volunteers and the military profession was not considered a prestigious pursuit. Those who volunteered to the British army were widely regarded as semi-criminals in need of harsh discipline and rough justice if they were to be of any use to society. Moreover, there was very limited interaction between civil society and the army, except in garrison towns where the population would feel the presence of troops. Whatever disciplinary measures the army deemed suitable to maintain discipline among the rabble that joined the ranks was of little concern to mainstream British society.

9The First World War marked a watershed in the relationship between the British population and its army. At the outbreak of war, the distinction between civilian and military justice was already blurred when emergency legislation was introduced. According to the Defence of the Realm Act (DoRA) civilians could be subjected to military justice for certain offences deemed harmful to national security, including spreading false information–or information at all–about the conduct of the war, liaising with the enemy or engaging in activities that could be helpful to the enemy, whether intended or not. In 1916, the distinction between traditional frontline military justice and civilian society became further blurred when a new type of semi-military tribunal was established to examine applications for exemption from military service.

10At the front, the legal framework for military justice was the Mutiny Acts of 1881 and the Annual Army Act. They dealt with frontline discipline (disobedience, neglect of duty, desertion, and incitement to mutiny) as well as with crimes committed by men in active service (stealing, assault, rape, and homicide). Both contemporary critics and historians have described the judicial processes as wrought with flaws and out of line with acceptable standards of fair trial and due process. Most conspicuously, British military justice operated with more capital offences and provided fewer judicial guarantees for accused soldiers than was the case in the French and German armies (Jahr 1998: 18, 30; Englander 1998: 191; Oram 2001: 93-94). While the German Code of Military Law of 1872 operated with twelve capital offences, British military justice operated with twenty-seven (Oram 2003: 28-31; Jahr 1998: 45). In the German army, cases against soldiers for breaches of the Military Code were processed by professional lawyers specialized in military justice, whereas the British soldier faced a tribunal of commissioned officers, without access to professional legal assistance. Although sentencing a soldier to death required unanimity among the officers acting as judges and needed to be confirmed by the commander-in-chief, there was no opportunity for the soldier to appeal.

11There was admittedly a connection between British military law and ordinary criminal law, which also made greater use of capital punishment than was the case in the German and French criminal justice systems. However, there can be no doubt that British frontline military justice fell short of the standards of legal protection, due process, and proportionate punishment that had come to be expected of civilian justice. Yet if severe punishments remained in the military code, application had become more lenient. By the outbreak of the First World War, British military justice was much less severe than it had been before the beginning of the reform era in the 1870s. As early as 1869, a study on military justice claimed that capital punishment was effectively a thing of the past (Babington 1983: 2), and before the outbreak of hostilities in 1914, harsher penalties were rarely applied (Oram 2003: 35-38). As Jahr rightly observes, the German Military Code had milder penalties that were rigorously applied; the British military code meanwhile operated with harsher penalties but with a much greater margin for clemency at the discretion of military judges (Jahr 1998: 52-53).

12During the First World War, there was a significant hardening of judicial practices as compared to before the war. This combination of harsh penalties and a large margin of discretion in British military justice could easily turn into a deadly cocktail under the extreme pressure of trench warfare. British officers, unlike their French and German counterparts, were unprepared for running and maintaining discipline in a mass army. They had to quickly adapt from leading an army recruited from among the poor and marginalised of society to heading an organisation facing an influx of volunteers, many of whom came from middle-class or lower middleclass backgrounds. The changes in social composition of the troops presented a challenge in terms of maintaining respect for authority and orders both on the battlefield and during movements behind the lines.

13Even if different sections of the British army adopted different approaches to discipline, they all meted out a considerable numbers of death sentences, and many of these were carried out: 908 death sentences and 114 executions in the regular army, 283 death sentences and thirty-one executions in the Territorial Force, and 1,049 death sentences and 135 executions in Kitchener’s New Army of volunteers (Oram 2003: 102-103). Compared to the German army, in which only 150 death sentences were pronounced and forty-eight German soldiers executed, British military justice as it was applied was clearly far more severe. Yet, held up against other allied armies, the British army seems less out of line. In the French army more than 2,000 soldiers were condemned to death, leading to between 300 and 700 executions. In the Italian army at least 750 soldiers were executed, compared to the British figures which are officially set at 346 but are estimated to be at least 455 (Oram 1998: 15; Putkowski 1998: 15; Jahr 1998: 18).

2. Military Justice Becomes a Live Political Issue

14These figures were of course not available to contemporary critics, who had little idea of the number of executions in the British army and even less information about the number of German soldiers executed. If the British army was already criticized for its executions at the front, its disrepute was not based on comparison with other belligerent armies. Critics compared the British army with the Prussians as provocative political rhetoric; Prussian examples were often carefully selected and, as Jahr points out, not always accurately understood (Jahr 1998: 30). The factual truth behind the comparisons was a secondary concern. The political rhetoric aimed at undermining the arguments of the British government, which claimed to hold the moral high ground when it came to liberalism and respect of civil liberties, as opposed to the authoritarian and militaristic Prussians.

15Critics succeeded in making British military justice an enduringly contentious issue. During the first eighteen months of the war, defending British non-military liberties against German authoritarianism and militarism underpinned the war effort and recruitment of soldiers. Over time, the meaning of ‘Prussianism’ changed. An examination of forty-six British newspapers reveals that throughout the 19th century, the word simply meant ‘anything Prussian’ or ‘being in favour of the Prussians’. It was only after the Second Morocco crisis that the term acquired a connotation of militarism and anti-liberal governance, which was how it was used to justify British engagement in the war. However, opponents of the war used the same argument against the government, claiming that measures introduced to conduct the war had undermined British liberties and that the British government was itself guilty of Prussianism (Angell 1914; Snowden 1916).

16Before the war, military justice had been a rather marginal concern to most civilians. As long as the army fulfilled its functions of national defence and did not interfere in civilian affairs, it could be left to operate according to its own devices. Military service was not, as in Germany and France, broadly accepted as an inescapable and legitimate duty of citizens to their country, nor was military service considered a rite of passage and proof of masculinity. Most importantly, the military was not considered a useful and prestigious profession. Unlike the French republican ideology that closely linked military service to citizenship and equality, all attempts to draw such connections in Britain had largely failed. Nor did the British army fulfil a function of national integration and exclusion, as was the case in Germany, where military service had been employed to marginalize and exclude undesirables such as social democrats and religious and ethnic minorities. While the army was heavily criticized in both in France and Germany, only the far left was declared antimilitarist. Performing military service was a way of proving ones worth, and the idea of the citizen owing his life to the defence of his country was supported even among many leading socialists like Bebel and Jaurès, even if they rejected the army in the current form. No such social functions were accorded the military in Britain; the army and its system of justice and discipline was a world apart.

17If the wider British public had previously been largely unconcerned with military justice, the First World War marked a profound shift in public awareness, and the subject became increasingly controversial as the war progressed. The introduction of DoRA in August 1914 raised serious concerns amongst civil libertarians, as this legislation was accused of undermining freedom of speech through the silencing of those who opposed the war or who asked legitimate questions about its conduct.

3. Opposition to Compulsory Military Service

18Another step towards the awareness and rejection of military justice developed over the issue of military conscription, which was introduced through the Military Service Act of 27 January 1916. In the eyes of civil libertarians, compulsion was incompatible with British notions of liberty. The opposition to conscription came not only from those who opposed British involvement in the war but also from supporters, who maintained that the only way to conduct the war was through volunteers because compulsion would breach the constitutional relationship between the British government and individual citizens (Pearce 2001: 138-139).

19In the spring of 1916, the voices of civil libertarians were still too marginalised to have any impact against the panic over a possible German invasion, and were drowned out by the pervasive jingoism that characterised public opinion. Yet some fascinating transformations had taken place among civil liberties activists since the outbreak of war. The civil libertarian counter-culture of the Victorian and Edwardian era was influenced by three main currents. One strand grew out of the nonconformist Christian tradition, which interacted with and partly overlapped civil-libertarianism ideologically rooted in the philosophy of Stuart Mill and Herbert Spencer. Finally, there were activists who drew inspiration from some form of socialism, not infrequently individuals who had a background in one of the nonconformist Christian traditions.

20At the outbreak of war, a string of new organisations emerged. They objected to the influence of military justice on civilian society through DoRA and fought against the introduction of military service. Their views on the war itself varied, from pacifists who rejected warfare on principle and socialists who opposed this particular war as a capitalist enterprise, to those who supported the war effort but considered compulsory military service both unnecessary and incompatible with British liberties. These activists gradually came together in a very heterogeneous coalition that made different aspects of military justice the focal point for advancing wider civil liberties agendas. The earliest group to emerge was the Union of Democratic Control (UDC), organised in August 1914 by a group of liberal pacifists including Bertrand Russell, Norman Angell, Ramsey MacDonald, Edmund Morrel, and C. P. Trevelyan. They sought to influence government through parliament, but were soon marginalized by enthusiasm for the war. Over the following twelve months, they began cooperating with the No-Conscription Fellowship (NCF), organised in November 1914 by pacifists and members of the Independent Labour Party (ILP). As the introduction of compulsory military service became increasingly likely in 1915, the UDC and the NCF joined forces with the National Council Against Conscription (NCAC), organised by radical socialists and trade unionists in November 1915 (Ceadel 2000: 187).

21Although vilified in the mainstream press as cowardly and lazy, these groups recruited a considerable number of supporters as the war dragged on and as the initial enthusiasm yielded to weariness and cynicism about the purpose of the war. From the 300 who responded to Fenner Brockway’s first appeal in November 1914, the NCF grew to 5,000 members in October 1915, which increased to over 10,000 after the introduction of compulsory military service in January 1916. Similarly, from a closed circle of less than twenty members, the UDC had an estimated 100,000 members in 1917, which increased to over 650,000 towards the end of the war (Ceadel 2000: 214, 203).

22In an attempt to respond to the UDC’s and NCF’s civil liberties concerns, Asquith’s government accepted to make some allowances for men to refuse military service on the grounds of personal conscience. The compromise was a recognition of the political sensitivity of compulsion as a violation of individual liberties. At the same time, it was necessary to accommodate those non-conformist Christians who were known as uncompromising pacifists. In a political culture that had considerable respect for religious convictions, even non-conformist ones, Quakers, Methodists, and Unitarians could not be ignored or vilified as politically dangerous and unworthy citizens–as was often used for dealing with pacifists from the Socialist camp.

23Moreover, the concept of ‘conscientious objection’ had already existed in British political culture for over half a century. Conscientious objection was recognised by English Law since the 1870s and was intended for non-Anglicans (i. e. non-Conformist Christians, Jews, Atheists, and Agnostics) when swearing an oath in court. Throughout the second half of the 19th century, the concept of conscientious objection had been developed during lengthy civil liberties debates over the question of whether the State had the right to enforce compulsory smallpox vaccinations for babies and to subject children to religious education against the wishes of parents who belonged to non-Anglican religious denominations. Both compulsory vaccination and religious instruction resulted in compromise–most recently revised in 1907–allowing parents to exempt their children on grounds of conscientious objection. This long-running debate prepared the ground for a similar debate on conscientious objection to military service.

24The mere recognition of conscience as a legitimate reason for refusing military service was unique to Britain, among the belligerent countries. In France, not even the Ligue des droits de l’homme, despite its general stance on individual liberties, agreed that conscience could be a legitimate reason for refusing military service (Naquet 2005: 474, 482; Ingram 1991: 387-388). Conscientious objection was only recognised by French law in 1963. It was also far ahead of Germany, where psychiatric confinement was inflicted on some who refused military service during World War I (Brock 2006: 281 et seq.). Conscientious objection was only recognised after the excesses of the Second World War, when it was inscribed as a constitutional right in the Basic Laws for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland Art. 4, § 2; Frevert 2004: 267-272).

25Moreover, as Keith Robbins (1996: 694-695) and Martin Ceadel (2000: 219-220) both point out, the terms on which the British government accepted objections on the grounds of personal conviction were remarkably generous. According to the Military Service Act of January 1916, men drafted into the army could apply for exemption on a variety of grounds, including being the sole provider for parents or widowed mothers, as well as for personal conscience which, in principle, did not need to be religious conviction. In practice, long-term membership of a religious group known for its pacifism, such as the Quakers, often carried more weight than conscientious objection that was not founded in longstanding religious beliefs. The applications for exemption would then be considered by Local Tribunals; in the case of rejection, an appeal could be made to regional appeals tribunals and finally to the central appeals tribunal in London.

4. Opposition to the Local Tribunals

26Despite the relative generosity of the legislation, its application was at the discretion of the Local Tribunals. These tribunals are difficult to define as either civilian or as military, and thus provide yet another instance where the two realms were blurred. The tribunals were mainly staffed with civilians but operated on behalf of the War Office recruitment scheme. Moreover, the tribunals grew out of the socalled Derby Scheme set up to recruit volunteers. As a result, the same individuals who had spent the first eighteen months of the war recruiting volunteers to the army were now in charge of assessing the validity of applications for exception. The procedures were adversarial, with the applicant appearing before the Tribunal as one party to the case, and facing a military representative acting on behalf of the War Office.

27Conscience was of course difficult to prove. Draftees who could demonstrate membership in a pacifist religious organisation before August 1914 stood the best chance of succeeding in their application. However, members of these groups took different views on how to act upon their pacifist principles. While some refused any involvement in the war effort–the so-called Absolutist position–others were keen on demonstrating that their pacifism was not due to lack of personal courage or public spirit. Therefore, while they rejected active combat, many accepted to enrol in the ambulance services–a notoriously dangerous task at the front. In fact, the majority of Quakers called up for military service applied for alternative service rather than exemption.

28This left the Absolutists, who refused any form of participation, with a more difficult case to argue. Although the law recognised objection on non-religious grounds, the onus was on the applicant to demonstrate that his pacifist or socialist internationalist convictions were of such a nature that he could not participate in a war. It was particularly difficult for socialists who could not demonstrate pacifist credentials, but who objected to participating in this particular war on the grounds that it was a capitalist enterprise that forced workers to fight against workers. The War Office issued some general guidelines on how to interview exemption applicants about their motives and the seriousness of their commitment to pacifism or non-violence; however, it was up to the Local Tribunal to accept or reject such beliefs as a legitimate ground for exemption.

29The COs only constituted 0.33% of all men called up for service. Of the 16,500 applications for exemption on the grounds of conscience, only about 350 were granted unconditional exemption. 2,425 were refused any form of alternative service and sent to the trenches as ordinary soldiers. Those who did not receive unconditional exemption were left with the choice of accepting the option offered by the tribunal or facing severe punishments. Options offered by the tribunals took a variety of forms. Some 6,200 applicants were granted conditional exemption either by their Local Tribunal or by the Army Council. This meant that they were not enrolled immediately, but that they could be called up at any moment if the War Office changed its policies on objection or if there were any alteration to the personal conditions that had justified the original exemption. The position of those granted conditional exemption therefore remained very precarious. 2,919 accepted to serve at the front in non-combatant functions, and another 1,000 to 1,500 were allowed to do their service in work considered relevant to the war effort (Rae 1970: 132).

30However, 1,969 flatly refused to comply with the alternatives offered by the Local Tribunals and were subsequently court-martialled. The government was understandably worried that conscientious objection might be seen as an attractive way to avoid the trenches. It was therefore important to make sure that alternative services were dangerous and disagreeable. Similarly, Absolutists who refused to comply faced court-martial, which generally entailed lengthy sentences of up to ten years of penal servitude and partial loss of citizen’s rights for a period of time. Conditions were deliberately harsh compared to ordinary prison regimes. As Lloyd George famously declared in Parliament, he would ‘only consider the best means of making the lot of that class [the Absolutists] a very hard one’ (House of Commons Debates 26 July 1916). Among those who received shorter prison sentences, some were rearrested after their release and pressured to put on the uniform. At least seventeen men are known to have died as a result of their treatment, while Hayes sets the figure as high as seventy-one (Rae 1970: 312 et seq.; Hayes 1949: 260). While this may have deterred some men from maintaining their Absolutist position, it also backfired. Because of the harsh treatment, men like Clifford Allen and Fenner Brockway gradually acquired an almost martyr-like status among those who had become disillusioned with the war. Their status as victims was strengthened during the collective soul searching of the post-war era. At this time, the treatment of Absolutists by Local Tribunals, by court-martials and in prison came to appear ruthlessly repressive, undermining the legitimacy of the system.

5. Opponents of Conscription Raising Awareness of Frontline Military Justice

31During the last eighteen months of the war, criticism of the treatment of Absolutists came to be linked with the contentious issue of executions at the front. Concerns over the use of death sentences by military authorities was first raised in Parliament in June-July 1915 during debates about nationwide registration to further the recruitment of volunteers to the army. As no details on frontline executions were released by the government, questions were raised on the basis of statements from anonymous sources relating to a few individual cases (House of Commons 9 June 1915, 1 July 1915, 5 July 1915). When asked specifically about the number of executions at the front, Mr Tenant, the Undersecretary for War, declared that no British soldiers had been shot in the UK, but refused to provide any details or the number of executions at the front (House of Commons 26 January 1916; The Times 27 January 1916 ‘The Death Penalty in the Army’). Yet in the summer of 1915, the questions came from MPs who broadly supported the war and were concerned about fair treatment of volunteers.

32It was the introduction of military conscription that led anti-conscriptionist MPs to take an interest in the question of military justice at the front. Between January and May of 1916, Philip Snowden, the parliamentary spokesman for the NCF, Edmund Morrel, and Edward Harvey raised the issue in connection with the treatment of conscientious objectors and under-aged volunteers at the front (Babington 1983: 65-68; House of Commons 20 January 1916, 4 May 1916; The Times 17 May 1916, ‘The Military Service Bill’; The Times, 27 May 1916, ‘Conscientious Objectors in France’).

33In May 1916, Morrel raised questions on the basis of rumours that thirty-four objectors from a non-combatant unit had been taken to France and condemned to death (The Times, 27 May 1916, ‘Conscientious Objectors in France’). These death sentences were subsequently commuted into prison sentences of ten years by the direct intervention of Asquith, but the case established the important principle that no COs were to be executed at the front: if court-martialled COs would be handed over to the civilian authorities. The case nevertheless highlighted the shortcomings of frontline military justice and its treatment of COs. After the passing of the second Military Service Act in May 1916, the issue was no longer discussed in Parliament, and it was mainly the publications of the NCF, the ILP and the Quaker Society that kept the issue alive until it re-emerged in Parliament in late 1917 (Maccoby 1961: 171; Kenefick 2007: 133).

34Over these eighteen months, Snowden, Morrel and other anti-conscriptionist MPs concentrated on criticising the functioning of the Local Commissions and their treatment of Absolutist objectors. The Local Tribunals became the aspect of military justice that received the most attention. Already in March 1916, at a time when Local Tribunals had hardly begun operating, Snowden made a series of speeches in the Commons denouncing them as arbitrary, biased against the applicants and incompatible with due process (Graham 1922: 76). The speeches were printed as pamphlets and circulated widely. Critics also complained that the Local Tribunals were staffed with those most likely to be unsympathetic to COs, lacked competence as a proper judicial authority and were too cosy with the military authorities. Critics claimed that the military representatives at the Local Tribunals did not operate as one of the parties to the trial, but acted as if they were themselves part of the tribunal, even occasionally referring to it as ‘my tribunal’. Considerable inconsistencies in the application of the law between the tribunals, with some being rather lenient while others leaving almost no scope for exemptions, led to accusations of amateurism and incompetence. Socialists complained that the mainly middle-class members of the tribunals refused COs exemption simply because of their working class background and lack of influential support. Conversely people from educated milieus described the members of the tribunals as uneducated, ignorant, and treating learned men with contempt (Rae 1970: 68-69).

35The fact that the hundreds of Local Tribunals took very diverging views on what they considered as legitimate grounds for exemption left them vulnerable to accusations of being inconsistent and arbitrary in their assessment of applications. Yet as Rae rightly points out, while some of these criticisms may have been justified, the Tribunals on the whole fulfilled their task with dedication and with greater fairness than they are generally given credit for. At the same time, Tribunals were convenient scapegoats, not only for critics of the Military Service Act, but also for the government, which hid its controversial policies behind these juries and blamed all controversial decisions on them. Rae estimates that although there were considerable discrepancies in the handling of applications by different Local Tribunals, they were more competent and conscientious in their handling of applications than their critics allowed (Rae 1970: 94). Similarly, the appeals process also came under attack. Appeals committees were criticised for being staffed with civil servants rather than lawyers, and for taking the final decision without the presence of any military personnel or the applicant. In some cases, the procedures were contested in high court, not by COs but by lawyers concerned about the erosion of sound legal competence in the handling of the cases.

36Despite this barrage of attacks against the procedures surrounding exemption applications and despite the rising membership of the UDC and NCF, critics of conscription remained a noisy minority shouting from the margins for the defence of an unpopular cause. This was where the issue of executions at the front was resurrected in late October 1917. Information was still very patchy, but an increasing flow of rumours and bits of information circulated at the home front, mainly through soldiers and officers on leave. While the mainstream press maintained a selfimposed ban on reporting such rumours, Quaker publications like The Friend and The Ploughshare, the NCF periodical The Tribunal and main ILP publications like The Labour Leader and Forward had few qualms about printing whatever information they could get, even if this placed them at risk of being prosecuted according to the DoRA.

37For anti-conscription activists, executions at the front was a cause far more likely to capture the imagination of the wider public than the fate of COs. Instead of seeking to raise awareness about the lack of standards in the treatment of ‘draftdodgers’ by Local Tribunals, this was an opportunity to denounce the shortfall in legal standards and the callous application of procedures concerning brave soldiers at the front. Snowden raised the question of executions at the front in Parliament for the second time in late October 1917 (Babington 1983: 136).

38Critics of executions could draw on details from individual cases to substantiate their claims of flaws in the judicial procedures. Among the rumours circulating, the notorious Dyett case in particular seems to have sparked the imagination. (In 1919, this case provided the basis for A. P. Herbert’s fictionalised denunciation of executions at the front, The Secret Battle.) They argued that the application of military justice at the front was out of step with the standards expected in the 20th century both in terms of inadequate legal protection of the accused and lack of professional legal assistance. As a result, it was alleged that soldiers were convicted to death on dubious grounds, either because of misunderstandings when a soldier had simply drifted away from his unit without any intension of deserting, or due to malicious accusations from fellow soldiers or officers that were not properly investigated by the military superior. Critics drew a picture of flawed procedures administered by callous and incompetent military authorities. Execution of soldiers at the front thus became useful ammunition for those who opposed other aspects of the war effort.

39The potential for explosive controversy increased with the recognition of shell shock as a medical condition. By linking shell shock to cases of executions for desertion and cowardice, the stage was set for undermining the legitimacy of military justice. As this condition was gradually accepted as a genuine psychiatric affliction, it severely damaged the legitimacy of military justice. If men who were in fact mentally ill due to shell shock had been executed for cowardice, this was nothing short of miscarriage of justice and could be used by critics to de-legitimise all convictions for ‘disobedience’, ‘cowardice’, or ‘desertion’. In the long term, this proved to be the most damaging criticism. Already fuelling popular imagination in the final years of war, it only gained more credence in the post-war period. The case of Private Henry Farr and the 306 posthumous pardons is the last chapter in the saga.

6. Conclusion: Losing the Moral Battle

40In the long term, the campaign against the use of military justice won the moral argument comprehensively and convincingly. Because of the one-hundred-year ban on the military records of these cases, critics and later historians had to piece together patchy information and still struggle to shed full light on the problem. Secrecy did nothing to counter the politicised accusations of miscarriages of justice and of disproportionate punishment against soldiers as well as COs.

41Immediately after the war, the Darlington Commission of 1919 was given the task of reforming military justice, an implicit admission of its failing. As a result, both the legislation and military justice procedures were substantially reformed between 1924 and 1930, while rights to conscientious objection were strengthened. Whether it was the formal changes or the political embarrassment that military justice had caused during World War I, lessons were learned. During World War II, military justice was far more carefully applied: in six years of war from 1939 to 1945, only four British soldiers were court-martialled and executed, and despite reintroducing military service, other ways of dealing with COs were found. The lifting of DoRA and soldiers’ return from the front meant that information and individual eyewitness accounts could circulate freely. Personal and fictional accounts such as A. P. Herbert’s The Secret Battle kept the issue alive, and although it remained very difficult to get a coherent overview, popular opinion maintained that terrible injustices had been committed. During the post-war soul searching, a wave of publications emerged – factual, fictional, or semi-fictional – testifying both to miscarriage of justice at the front and to the harsh conditions to which COs were subjected in jails and prison camps. Several high-profile COs, including Clifford Allen, Fenner Brockway, and C. H. Norman, came out of jail with severe physical harm resulting from the conditions they had faced, but also with enduring credentials as martyrs of militarism and violation of their legal right to conscientious objection.

42Posthumous pardon was granted to soldiers, some of whom were undoubtedly victims of shell shock, misunderstandings, malice, and substandard judicial procedures, while others were probably correctly convicted for acts that are still offences under the Armed Forces Acts of 2006. Even if the punishment was unacceptable, not all of the convicted soldiers were innocent of the charge. If pardoning the guilty as well as the innocent may help reverse whatever miscarriages of justice were committed, there is still much to be done to redeem military justice during the First World War in the collective British memory.



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Senior lecturer in Modern European History at the University of Dundee (UK). She has published extensively on military involvement in policing and maintenance of public order in the French Third Republic and the German Empire, from the 1880s to the First World War. She has recently published an article on the civil liberties activism of the British civil liberties organisation The Personal Rights Association and the French Ligue des droits de l’homme. Her research focuses on law-enforcement and comparative analysis of police-public relations in nineteenth-century Germany, France and Britain. She is currently finishing a monograph on citizens’ complaints against the police in London, Paris and Berlin, 1880-1914

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