A docu-drama such as Breaker Morant, like most works of art, can be viewed through the lens of the time it portrays, the time it was made, and the time in which any viewer views it. This film contains additional layers of cultural, political, and legal perspectives that reflect upon a cloudy historical record, a strained British Empire and its restive colonial outposts, and the legal/philosophical issues surrounding the essentially transnational character of the laws of war their intersection with national military justice systems. I would like to begin with some brief and necessarily superficial background concerning the legal systems portrayed, and move on to consider how some of the factual vagueness, both in the film and surrounding the continuing investigation of the historical events, find reflection in how the film is put together. In the end, the stage play or the film can serve only to underscore the inherent state of dehumanization that constitutes guerilla warfare, suggesting that law cannot fix it and art cannot control its interpretation or impact. That the film somewhat subverts itself continues to fascinate audiences and critics living in various states of war.
South Africa, Australia, Great Britain and its colonies; comparative military justice and war
The colonization of the southern tip of Africa by the British was via the Cape Colony. The Dutch and their colonies of the East India Company carried a form of civil law, so-called Roman-Dutch law, to their colonies such as the Transvaal, established in 1858 but annexation was attempted by the British in 1877. The British would have allowed the private law to be kept under this system. The Boers resistant in an earlier war well enough to retain a kind of independence under a British protectorate. The last Dutch territory, the Orange Free State, is the entity depicted in the film and undergoing a messy and horrific defeat in this “ Boer War” of 1898–1900. The Australians, like other colonies, were given a form of parliamentary representative government in the 1850’s and became the Commonwealth of Australia in on January 1, 1901. In the film, Harry Morant refers in his court-martial to having joined the Bushveldt Carbineers (BVC) on April Fool’s Day, 1901 and conveys his sense, perhaps sincere, of irony. But a sense of separate Australian identity was becoming possible. As James J. Kirschke of Villanova University points out in a recent essay in the journal Film & History, “Say Who Made Her So: Breaker Morant and British Empire” (38:2, 2008), there was concern in the 1970’s about Australian identity, and perhaps in the run-up to the 1986 Australia Act, which terminated almost all of the constitutional connections with Great Britain, this was a way to get the George Witton story and the many other accounts of the Morant group’s court-martial into a different framework:
The characterization, then, of the Australian soldiers is as important as the historical presentation of the court martial. There is little doubt in the film that they shot the prisoners, and the film remains vague on the existence of orders from superiors to do so. Beresford is neither damning nor absolving the soldiers. His target, rather, is the way the event has been used to delineate a civilized Britain from a barbarous Australia. The B.V.C. soldiers are shown to be loyal and determined. Even at their execution, they comply with each military protocol, neither running nor ranting. Their conduct is as British as the empire could expect. (Kirschke, 48).
However, the legal and constitutional changes within the Empire, and the necessity of fighting a brutal war against small farmers using guerilla tactics to create a formidable insurgency, are perhaps the issues of most lasting relevance today, and with an imperial Germany lurking in the background of this story (they had a foothold north of the Orange River), we start to see a familiar pattern of civilian combatants, spies, and secret orders. The emergence of gold and other precious resources set the stage for maximum barbarity on all sides. By the late 1970's, regardless of the accuracy of the film, Australians and Americans would also remember Vietnam and the My Lai massacre.
Laws of War- late Nineteenth Century
Despite several rounds of conferences and codifications, such as the earlier Lieber Code (1863), and the Hague Conferences (1899-1907) that were contemporaneous with the events of the film, there was nothing like the idea in the treaty establishing the International Military Tribunal at Nuremberg that would have rejected superior orders as a defense. The international instruments did consider the situation of civilians and “rebels” and the ambiguity of civil wars and civilian combatants in some respects, but reciprocity was required to be mutual and could be negatively interpreted for retaliation. (Watts, S. Reciprocity and the Law of War, 50 Harv. J. Intl L. 365, 397-398(2009).
In Prof. Kirschke’s article, cited above, there are several interesting notes citing several works on the event and comparing Kitchener’s take on the Boer insurgents with the aim of the court martial to begin to repair relations with the Boer’s and Germany for the limited purpose of peace (and territorial) negotiations.
The film and Perceptions of War and Law
An academic and philosophical debate took place in the journal Critical Arts (Johannesburg, South Africa: Critical Arts Study Group], 1980- ) from its first volume with a monographic essay and into vol. 2 no. 3 (1981-1982) and vol. 3 no. 3 (1985) about the themes of imperialism, racism and the role of cinema and whether the social character of art is subverted in such a successful film, and so forth. These debates were part of a debate about the role of art in cultural struggle, and at that time South Africa’s struggle in particular was still going on in an earlier post-colonial phase. The critique of the subversion of art and law through myths, and debates over how much this film really condemns imperialism, do not seem nearly as relevant to a current viewing of a film with several sub-texts that appear now after the American adventure in Iraq.
One subtext is that of the need to situate blame, and post-Nuremberg, the entire chain of command is seen as morally culpable, and the legal defense now pulled out from under the accused (we were just obeying orders). But the nature of the BVC as an “irregular” counter-insurgency group with no real orders has already undermined its legitimacy as a kind of vigilante group with inchoate state approval, not unlike the police juries and nightriders of the American south in the century after the civil war. The rapid cuts from past to present and toned down to faded memory enliven the court-martial visually but do not add much to the now rather obvious hypocrisy.
Another anchor for the film is the role of poetry and rhetoric: Morant is a conventional cynical poet on the make, using language to capture that obvious hypocrisy, but it establishes him mainly as having a persona that he has built through war and daring deeds. The zeal of Major Thomas, his lawyer, has somehow more honesty and a more faithful allegiance to the power of accurate language and eloquent but logical reasoning. He is less a sophist and more honest with language than those eager to have a bit of adventure, promote a newly emerging country (“Australia forever”), and in the end show what a good soldier one can be. Thomas does not “defend” so much as represent the rule of law, and the incredible audacity of applying that rule to situations where the descriptive language is crucial: is it a crime, a war, or terror? Beresford’s camera cannot hide the human toll taken by the words.
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Cited or reviewed in law reviews:
Graber, Doris Appel .The Development of the Law of Belligerent Occupation 1863-1914 (1949).
Neff, Stephen C., War and the law of Nations: A General History. Cambridge, 2005.
Wiener, Frederick Bernays , Civilians Under Military Justice: The British Practice Since 1689 Especially in North America (1967.
The Popular and historical accounts are listed at the Widipedia article, Court-Martial of Breaker Morant, http://en.wikipedia.org/wiki/Court_martial_of_Breaker_Morant and pasted below:
Bleszynski, Nick (2002), 'Shoot Straight, You Bastards': The True Story Behind The Killing of 'Breaker' Morant. Random House Australia. ISBN 1-74051-081-X.
Davey, Arthur; "Breaker Morant and the Bushveldt Carbineers" (Van Riebeeck Society, Cape Town 1987) ISBN 0620124857 and 9780620124850
Denton, K. (1973). The Breaker. Angus & Robertson. ISBN 0-207-12691-7. But see Denton, Kit, Closed File: the True Story Behind the Execution of Breaker Morant and Peter Handcock. Adelaide: Rigby, 1983.
Pakenham, Thomas (1979). The Boer War. Weidenfeld & Nicolson. ISBN 0-297-77395-X.
Pollock, John (1998). Kitchener. Constable. ISBN 0-09-480340-4.
Ross, K.G., Breaker Morant: A Play in Two Acts, Edward Arnold, (Melbourne), 1979. ISBN 0-7267-0997-2
Ross, Kenneth G. (1990). Breaker Morant, Cambridge University Press. ISBN 0-7267-0997-2
Wallace, J.W. (1976). The Australians At The Boer War. Australian War Memorial/Australian Government Publishing Service.
Witton, George (1982). Scapegoats of the Empire. Angus & Robertson. ISBN 0-207-14666-7.
Woolmore, William (Bill) The Bushveldt Carbineers and the Pietersburg Light Horse (2002, Slouch Hat Publications Australia) ISBN 0-9579752-0-1
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