Dr. Peter A. Pedersen
The Australian had a reputation as the most
undisciplined soldier in the British Expeditionary Force. One hundred and
twenty-one Australians were sentenced to death, the majority for
desertion, during the war.
None were executed because Australian military
law all but forbade capital punishment. Moreover, domestic antipathy to
the death penalty in the AIF was etched in stone and governments
attempting to introduce conscription could not afford to challenge it.
Those attempts failed anyway. The Australian soldier remained a volunteer
free from the threat of extreme sanction. His country would have it no
When the Australian colonies federated on 1
January 1901, they ceded responsibility for defence to the new
Commonwealth Government. In 1903, it brought the various colonial military
forces under a single binding piece of legislation, the Australian Defence
Act, which enshrined the principle of a defence force comprised of
volunteers who could not be compelled to serve outside Australia or its
territories. Section 98 of the Act governed the use of capital punishment.
It relied heavily on the relevant provisions in the colonial defence
legislation of New South Wales, Queensland and Tasmania, which reflected
concerns that local forces should remain under local control.
The execution by British authorities of two
Australian officers, Morant and Handcock, for the killing of Boer
prisoners in South Africa was a lesser influence because the case aroused
little public controversy in Australia at the time.
Under Section 98, only mutiny, desertion to the
enemy and certain forms of treachery were punishable by death and the
sentence had to be confirmed by the Australian Governor-General rather
than a commander in the field. The small number of capital offences
prescribed under Section 98 is striking compared to the range of offences
punishable by death in the British Army.
And unlike the Canadian, South African and New
Zealand governments, which agreed to their soldiers being tried and
punished under the British Army Act, the Australian government insisted on
the primacy of Section 98 when its troops served under British command.
Like voluntarism, a more lenient disciplinary
code seemed appropriate for a culture considered, not without reason, as
independent, resourceful and freer from class distinction than most. Its
soldiers had never in their lives known any restraint that was not
self-imposed. But even by this standard, discipline in the Australian
Imperial Force had all but collapsed within a month of its arrival in
Egypt in November 1914.
Under pressure from his British superiors, Maj-Gen.
Bridges, the commander of the 1st Australian Division, ordered the return
of 131 persistent offenders to Australia for discharge, together with 24
venereal cases. An official despatch explaining to the Australian public
why the men were being sent home fulfilled the exemplary function of the
punishment. In the absence of the death penalty, it remained the most
dreaded instrument of discipline among Australian soldiers.
Unlike Egypt, Anzac was conducive to the
maintenance of discipline. As the bridgehead was barely one mile square,
it did not have a ‘rear’ where alcohol and women were available to
tempt potential deserters.
Nevertheless, on 9 July an Australian
court-martial sentenced a soldier to death for falling asleep on sentry to
demonstrate the gravity of the offence and ensure a heavy prison sentence
was awarded in lieu of a punishment that was bound to be commuted. Two
more death sentences were passed on Australians at Gallipoli.
On the Western Front, the AIF lacked the
independence granted by the isolation of its enclave at Anzac. It fought
directly alongside British and other Dominion troops who were liable to
the death penalty. The difficulty of having soldiers in the same army
subject to different laws arose almost immediately after the AIF arrived
in France in March 1916.
When an Australian soldier was sentenced to death
in April and another in May, the commander of 1 ANZAC, Lt-Gen. Birdwood,
recommended that the Australian Government should be asked to waive
Section 98, thereby putting its troops on the same footing as the rest of
the British Army. Haig forwarded the request to the War Office with his
endorsement. On 9 July, London asked the Commonwealth to place Australian
overseas troops under the British Army Act forthwith. As it was considering
the introduction of conscription to remedy declining voluntary enlistment,
the government delayed its answer.
Over the next two months the four Australian
divisions in France suffered 28,000 casualties, precipitating the
government’s decision on conscription. It called for a referendum at the
end of October. Though the campaign split the nation, all Australians
opposed the infliction of the death penalty on men who had volunteered to
fight in a distant land in a cause not particularly their own. Even a hint
that the revocation of Section 98 might be considered would have left
conscription with no chance. Its defeat in the referendum all but
precluded any measure that would discourage voluntary recruiting, making
change even more remote.
The British request concerning Section 98
remained in abeyance.
But it would not go away. The effects of the 1916
battles went beyond the huge losses, which were eventually made good. They
were forever seared in the minds of the survivors. For men whose nerve had
gone, the concept of duty as a noble and over-riding ideal faded,
weakening as a deterrent the supreme punishment instituted by Bridges for
indiscipline, return to Australia in disgrace.
Whereas eleven Australians deserted in the three
months before the battles, courts-martial convicted 288 men for it by the
end of 1916. Sixteen Australians received death sentences between July and
November. With the onset of the harshest winter in forty years, they were
joined by fourteen more in December, the highest monthly total of the war.
These figures were a reminder that the
jurisdictional question regarding capital punishment for Australian
soldiers was still unanswered. On 11 December Birdwood revisited it,
venturing to Gen. Rawlinson, of whose Fourth Army I ANZAC was part, that
the Australians’ discipline would likely suffer when they realised that
a regulation binding other soldiers in the British Army did not apply to
them. Rawlinson needed no convincing.
Three Australian deserters had been sentenced to
death in the Fourth Army so far that month and 130 of its 182 absence
cases were Australian. He told Haig that he would not be responsible for
the discipline of the Australians unless the law was immediately altered.
Haig strongly supported him. On 3 February, the War Council stressed that
the change was essential.
The Australian Government finally responded,
seven months after the matter was first raised. The British concerns did
not diminish the existing arguments against acquiescence. Provoking public
antipathy to the death penalty would adversely affect voluntary recruiting
and reignite the passions generated by the conscription campaign at a time
when it had held office less than a month. The answer was no.
When the matter resurfaced after the twin battles
of Bullecourt in April-May 1917, some Australian commanders joined the
British chorus. In the disastrous first battle, the 4th Division suffered
the heaviest proportionate losses of an Australian formation in a single
action. When it was warned for the attack on the Messines-Wytschaete Ridge
in June, after only one month’s rest, desertions from it became acute.
Its commanders urged upon Birdwood the amendment of Section 98 so that it
could be applied to a few cases.
The commander of the 3rd Division, Maj-Gen
Monash, similarly approached Birdwood shortly afterward. Monash had no
doubt that the increase in serious crime, especially ‘desertion and the
avoidance of battle duties’, was due to the absence of any real
deterrent. But the carrying into effect of even one death sentence would
cause potential deserters to hesitate, thereby stiffening discipline.
Consequently, the Australian government should be urged strongly to
withdraw its prohibition on the death penalty. If it rejected this demand,
an unequivocal statement that convicted deserters whose sentences were
commuted to penal servitude would serve the full term of their punishment,
irrespective of any armistice, should be sought.
Birdwood answered Monash as he had the others.
Everything that could be done had already been done, not just by himself
but by Haig, the Army Council and the Secretary of State for the Colonies,
who between them had urged the Australian government ‘much more strongly
than he’. But it had told all of them in ‘definite terms’ that the
matter would not be reopened. Meanwhile Lt-Gen Godley, the commander of II
ANZAC recommended asking the government outright to allow the second of
Monash’s options. Penal sentences imposed by courts-martial should be
served in full even if the war ended in the meantime.
That compromise did not satisfy Haig. Worried
about the deterioration of discipline in the AIF and the effect of the
Australian example on the BEF, he visited I ANZAC on 29 July to ask what
could be done. Maj-Gen White, its Australian Chief of Staff, re-iterated
that the Australian Government would never agree to the shooting of
deserters. Unwilling or unable to accept what White had spelt out so
clearly, Haig continued to press for the full and urgent application of
the British Army Act to Australian troops.
Perhaps realising that full application would
make them liable to the death penalty for a range of offences, he promised
the most sparing use - in cases ‘where desertion was most deliberate and
an example badly needed’.
Birdwood knew that the Australian response would
be the same as before but he had to support his chief. He suggested to
Senator Pearce, the Australian Defence Minister, that the death penalty
should be imposed solely for desertion, and then only if conscription were
introduced. Even this dilution was too much. On 20 September Pearce
replied that the impact on flagging enlistment would be ‘disastrous’,
so much so that the request could not have come at a more inopportune
The Australian Government’s decision to leave
Section 98 in place came as the Australians joined Haig’s Third Ypres
offensive. The effect on discipline was the same as in previous campaigns.
Ten Australians were sentenced to death in August, the month before it
began. 53 men left the 2nd Division as it went into the line.
Courts-martial for absence and desertion peaked in October and sixteen
death sentences were passed in September and October, the two months of
Australian involvement. On 5 November, in a step reminiscent of Bridges’
measure three years earlier and based on the same exemplary principle,
Birdwood asked Pearce to approve the publication in all Australian
newspapers and in AIF orders of deserters’ names, towns of enlistment
Two days later a second conscription referendum
was announced for December. Recruiting in the second half of 1917 had
fallen far short of the numbers needed to replace the 38,000 casualties of
Third Ypres and cover future wastage. The anti-conscriptionists were not
swayed. In a campaign that was more bitter than the first, they increased
their majority. The voluntary system remained intact but from now on it
was unable remotely to meet the AIF’s needs. Desertions and
imprisonments depleted its ranks further, leaving Pearce little choice but
to agree to Birdwood’s proposal. It came into effect in January 1918.
The government also flirted with the addition of murder to the crimes
covered by Section 98 but it withdrew the amendment at the Armistice.
At the same time, AIF attitudes to shell shock
softened. In December 1917, Birdwood formally acknowledged that some
breakdowns were very different to cases of deliberate desertion to avoid
action. He directed that ‘the medical aspect of the case should be
carefully gone into before the man is charged with desertion’.
The following May Monash, Birdwood’s successor
as commander of the Australian Corps, ordered the withdrawal from the line
of long-service men suffering from ‘nerves’. Many were sent to support
units. In July, the commander of the 5th Division, Maj-Gen. Hobbs,
interviewed seven men convicted of desertion. Finding some of them to be
nervous wrecks, ‘more to be pitied than blamed’, he suspended the
sentences and instructed commanding officers not merely to read the court
records of men found guilty but to see the men themselves.
Though long in coming, this enlightened attitude
towards a major cause of desertion helps explain why only two Australians
received death sentences in 1918.
Ironically, a number of Australian soldiers could
legitimately have been executed that year. By September, their corps had
lost almost 50,000 men in six months’ continuous fighting. As recruiting
in Australia was down to a trickle, these casualties could not be
replaced, reducing some battalions to fewer than 100 men. Eight were
disbanded to feed the rest.
The order was a shattering blow for the men
concerned and they refused to obey it. In what was considered a ‘strike’
rather than a mutiny at the time, they elected their own leaders,
maintained ‘especially strict discipline’ and asked to go into the
next battle, the assault on the Hindenburg Line, in their old units. The
other battalions sympathised with them, creating a dilemma for Monash. He
decreed that the battalions could remain but they would not receive
reinforcements. After the battle, the Australian Corps’ last, the
battalions disbanded voluntarily.
Another incident could not be disguised as ‘industrial
action’. On 21 September, 119 men of the 1st Battalion stood fast when
they were ordered back into the line shortly after their relief,
protesting that they were being called upon to make good British failures
as well as having to fight on their own front. ‘Fatigue mutiny’ or
not, these men had committed an offence unequivocally punishable by death
under Section 98 for the first time in the war. Aware of the outcry at
home that its enforcement would provoke, Monash again took the broader
view. All but one of the 119 were convicted of desertion rather than
mutiny and sentenced to up to ten years imprisonment on Dartmoor.
The Australian commanders were essentially
orthodox disciplinarians. To them desertion was more than a slander
against military virtue for the AIF could ill afford to lose men to
non-battle causes when it relied on an increasingly fragile voluntary
system to replenish its ranks. So they regarded as necessary the death
penalty to deter it.
Some of them even dismissed the sensitive and
considered way Monash and Hobbs dealt with desertion due to nervous
exhaustion in 1918 as ‘merely likely to store up future trouble’. The
collective Australian opinion that the hardened deserter saw a long prison
sentence as merely a safer alternative to the trenches was advanced by
Field-Marshals Allenby and Plumer when they publicly opposed the abolition
of the death penalty in the British Army after the war.
For his part, the Australian soldier was not
sympathetic to deserters. The men of the 1st Battalion who attacked on 21
September never forgave their comrades who did not.
But condemning them to death was something else
The reading out to Australians on parade of
reports on executions evoked only a sullen sympathy and a fierce pride
that their own people had refused this instrument to its rulers.
The strength of popular feeling ranged against
capital punishment in the AIF made Section 98 impregnable. So there were
no Australian ‘examples’. The AIF remained a volunteer army that
possessed alone among the armies ‘the privilege of facing death without
a death penalty’.
Dr. Peter A. Pedersen
A graduate of the Royal Military College Duntroon
and the Australian Command and Staff College, Dr Peter Pedersen commanded
5th/7th Battalion, the Royal Australian Regiment after a secondment to the
Australian Prime Minister's Office as a political/strategic analyst. His
many publications include books on General Sir John Monash and the
Gallipoli Campaign. Dr Pedersen guided the then Prime Ministers Hawke and
Thatcher around the Gallipoli Peninsula during the 75th Anniversary
Commemoration in 1990 and has led battlefield tours throughout the world.