In support of pardons for servicemen who allegedly deserted the Irish Defence forces during world war two and whom in August 1945 were dismissed en masse and in absentia by the Irish government pursuant to Emergency Powers Order (No 362) 1945.

Contact Details - Veterans - Families:

Due to health concerns for our few surviving elderly world war two veterans the Irish Soldiers Pardons Campaign (WW2) will no longer be giving out their contact details irrespective as to query source. However, footage of various interviews broadcast on RTE 1, TV3, NDR Fernsehen, Das Erste TV, Deutsche Welle TV (Brussels), BBC One, RTE Radio, Newstalk Radio, BBC Radio 4 etc, along with a plethora of articles and letters published worldwide, should be available to an enquiror. There is also a lot of information throughout this website and links to other projects which may be informative and can be freely used in articles, bibliography, projects, if required. For other enquiries contact email: mulvanypeterie@yahoo.co.uk - Mobile: 00353872769707

Honoured At Last - Saturday 7 July 2012

On Saturday 7th July 2012, at the Royal British Legion Annual Commemoration and Wreath Laying-Ceremony held in the Irish National War Memorial Gardens, Islandbridge, Dublin, a Poppy Wreath With A Tricolour Ribbon attached was placed at the memorial on behalf of the Irish Soldiers Pardons Campaign (WW2). The inscription by Patricia Grant-Reid on the remembrance card reads: Honoured At Last: These brave and noble men; So long denied and vilified; Now take their place among; Our heroes of the past, (see also Deserted by Paddy Reid). Although the Wreath Laying at the Irish National War Memorial officially concludes the effort of the Irish Soldiers Pardons Campaign (WW2), the campaign organisational structure will be kept in abeyance until such time as the Irish government introduces and brings into law their Promised Legislation. Irrespective as to whether its amnesty, pardon, a combination of both or none, it is ultimately a matter for the Minister for Defence Mr Allan Shatter TD and the Irish government to make a considered decision based on all the facts. The Public Statement by Irish Government of the 12 June 2012 declaring their intent to resolve the issue insofar as practicable is a welcome and honourable panacea, consequently there is no need for the campaign to add further comment other than what has been outlined on the following pages. Thereafter the website will be kept online for the foreseeable future.

Irish Government Statement - Tuesday 12 June 2012

Following the Announcement in Dail Eireann Tuesday 12 June 2012 by Minister for Justice, Equality and Defence Alan Shatter TD, on behalf of the Irish Government, the Irish Soldiers Pardons Campaign (WW2), would like to take this opportunity to commend Minister Shatter for having the wisdom, compassion and moral courage in taking positive action to enable a resolution on the pardons issue to be achieved which will remove in so far as practicable the stigma of dishonour attached to those named as dismissed for desertion in the republished Blacklist. From the outset the Irish Soldiers Pardons Campaign (WW2) has never sought any compensation for veterans or their families and neither is compensation or any other pecuniary benefit deemed appropriate. Consequently the proposed legislation which the Minister intends to introduce later this year will not give rise to any right or entitlement or to any liability on the part of the State. There have been many organisations, veterans associations, politicians of different hues, members of The Media, individuals and particularly the ordinary man and woman in the street throughout Ireland and abroad who supported the TEAM EFFORT and who are now entitled to share in the collective credit. On behalf of the very few elderly survivors left and their families we thank you all (Go raibh míle maith agaibh go léar).

Media Enquiries

Founded and launched in Ireland on the 6 June 2011 the Irish Soldiers Pardons Campaign (WW2) is organised and coordinated from Dublin and is not associated with any publisher, author, political, religious or military grouping. From the outset the construction, management and hosting of this website has been financed exclusively from an old age pension income. Coordinator, Peter Mulvany BCL, HDip Arts Admin, is a law graduate and post graduate of University College Dublin; an Arts Administrator by profession, a former local government official and a retired Dublin Bus Driver. As this web site is periodically edited/updated with additional points of information, corrections etc, and in order to work through some of the hyperbole surrounding the debate on the desertion/pardons issue it is in the interests of all concerned to be fully cognisant of the background outlined in the following web pages in particular A Pardon For Irish Soldiers Irish Times dated 2 February 2012; Process Was Legally Flawed From the Outset in the Irish Medical Times dated 23 March 2012; and the Irish Times editorial Time to Pardon dated 26 January 2012. It should also be noted that Emergency Powers (No 362) Order 1945 introduced post war by the de Valera government to dismiss and punish rank an file defence force personnel was subsequently amended on the 22 February 1949 by the newly elected Fine Gael coalition government pursuant to the Section 8 of the Defence Force (Temporary Provisions) Act 1949 which removed the harsher sections of the order but retained the dismissal section, the section on evidence and in particular retained the section which excluded officers from any penalty within its terms of reference. This  legislative response initiated by the Fine Gael led coalition to address justifiable political and legal concerns surrounding the detrimental effects of the original order shows that the new Government which had argued vociferously against its introduction while in opposition was determined to resolve the issue insofar as the political mosaic of the 1948 elected Dail Eireann/Irish Parliament would allow. However as the Blacklist of Irish defence force personnel dismissed for (alleged) desertion can now be purchased Online from a British publisher which in our view subjects the few remaining elderly veterans and the families to further hurt and public opprobrium, and even though there are extant cogent legal grounds for revoking the original order in full and grant an amnesty, instead, a pardoning route was suggested to government as a potential resolution to respect all concerns. Cognisant that the Republic of Ireland is said to guarantee religious and civil liberty, equal rights and equal opportunities to all its citizens and promises to cherish all the children of the nation equally as proclaimed in the 1916 Proclamation and reflected in the Constitution of Ireland Bunreacht na hÉireann and successor laws, can it not also be said that the treatment of former defence force personnel accused of desertion by the de Valera government post war clearly indicates a contradiction of those republican ideals and that in actual fact when it suits a political agenda some of the children of the nation are deemed less equal than others ?  

Historians - Commentators

Although legitimate questions as to who deserted and why, the historical context and argument surrounding the Neutrality issue etc have been vigorously debated by all concerned nonetheless some contributions need to be clarified. For instance, one author advised that 4983 deserters went to fight against fascism, and yet there is no extant research to indicate/quantify who joined UK forces or who in the Blacklist went AWOL to work in the UK. Interestingly on the 16 January 1945 Under-Secretary of State for Dominion Affairs Mr. Emrys Evans MP commented "it has not been possible to decide what numbers of His Majesty's Forces come from Eire and which do not. We have made great efforts to find out, but it has not been possible", confirming the British government at that time could not supply accurate statistics as to who had joined UK forces from Eire never mind calculating as to where alleged deserters went and why, although it is suspected the vast majority of those in the blacklist did join UK forces. Another author states that deserters were court-martialled by the Irish government and yet no court-martial/military tribunal was convened to determine their guilt or innocence. The same author also stated that children of these UK forces personnel were targeted for abuse and yet no extant documentary evidence appears in the Child Sexual Abuse reports to corroborate his assertion. Another commentator indicated a figure of 4634 as dismissed from the defence forces pursuant to Emergency Powers (No.362), Order 1945, and yet there are 4983 defence force personnel listed in DeValera’s Republished Blacklist. Another commentator opines about a lack of information to indicate the class or where the deserters came from, and yet the address and former employment of each is stated in the republished blacklist. Another historian made comments on a television interview in 2011 about the blacklist and its content, and yet had not seen the contents of the blacklist until February 2012. The same historian has also asserted on several occasions that a judicial outcome as a result of a court-martial could have had a more serious consequence for the individuals concerned in comparison to the Political Process that was initiated thereby putting forward speculative argument as to potential military judicial outcomes which lacks cogency as that opinion ignores the absence of due process to which service personnel are entitled pursuant to the Constitution of Ireland Bunreacht na hÉireann and disregards the Separation of Powers provision contained within the constitution which ensures that no one organ of the Irish State may interfere with the functions ascribed to the other two. So what could be construed as an absence of due process in relation to the treatment of defence force personnel alleged to be deserters by the Irish government post world war two? To clarify, a common thread of modern legal maxims gives two criteria for due process: “Notice” and “a meaningful opportunity to be heard.” if a person involved in a case isn't “notified” of the proceedings, there is no due process. And, if for any of many reasons, the proceedings fail to provide “a meaningful opportunity to be heard,” there is no due process. Personnel dismissed for alleged desertion pursuant to Emergency Powers Order 362 of 1945 were CONVICTED...and...PUNISHED...in ABSENTIA...UNHEARD...BY POLITICIANS and such procedure amounts to an ABSENCE OF DUE PROCESS. As several hundred men named in the Blacklist were members of the Construction Corps and designated as Non-Combatants it would be interesting to hear as to what punishment would this historian award in their case? In contrast commissioned defence force officers were deliberately excluded from the effects of Emergency Powers Order 362 by the De Valera government. Another commentator writes about defence force deserters, oaths, dishonour and shame in a disparaging contemptuous manner reflecting Oscar Traynor’s Words of Condemnation that these Irish defence force (alleged) deserters are not worthy of consideration, and yet the 1937 Irish Constitution guarantees legally enforceable fundamental rights and imposes on the Irish state the obligation to guarantee and defend those rights, which begs the question, do such commentators fully comprehend that accused persons have a right to due process according to the Constitution of Ireland Bunreacht na hÉireann, which clearly recognises the supreme authority of the people and not the dominance of the state over its citizens. Commentators should also note that the military offence of desertion as reflected in Section 42 (1) of the Defence Forces (Temporary Provisions Act), 1923 and successor Acts clearly states inter-alia that "PERSONS SUBJECT TO MILITARY LAW.... SHALL, ON CONVICTION BY COURT-MARTIAL....BE LIABLE TO SUFFER" which affirms the legal position that military courts are the final arbiter of the guilt or innocence of persons subject to Irish military law and political cabals do not have jurisdiction to award punishments upon persons who are subject to military law. Commentators should also be cognisant of military law regarding the offence of Mutiny and Sedition pursuant to Section 36 of the Defence Forces (Temporary Provisions) Act, 1923 and successor Acts. As all officers and men of the Irish Defence Forces were persons subject to Irish military law pursuant to the provisions of the Defence Forces (Temporary Provisions) Act, 1923 then in force, the ultimatum on the 6 March 1924 by Irish army officers led by a Major General Tobin see Pathe News records 3000 Rebellious Troops was a direct challenge at the time to the democratic foundations of the Free State and their frank expression of military discontent was mutiny as proscribed by Irish military law which required adjudication according to Irish military law. However despite his leading role as instigator of the Army Mutiny Tobin was permitted to exit the Irish Defence Forces without sanction and subsequently ended up as Superintendent of the Houses of the Oireachtas during The Emergency. Interestingly while Mr de Valera and the Irish Parliament/Dail Eireann was ousting the jurisdiction of the military court process for ordinary rank and file personnel Blacklisted pursuant to Emergency Powers Order 362 on the 8 May 1945, the person in charge of security in the same Irish Parliament/Dail Eireann was a Mutineer, or to be precise as Tobin was never tried or convicted by Court-Martial, an alleged former Mutineer who in March 1924 had as a senior commissioned officer of the Irish Defence Forces directly challenged the democratic institutions of the Irish state thereby repudiating the oath which he had previously sworn to bear true faith and allegiance to our country and faithfully serve and defend her against all her enemies, see Form of Oath or Declaration to be taken pursuant to section 21 second schedule of the Act. Following his death on the 30 April 1963 Major General Tobin an alleged mutineer was accorded full Irish defence force military honours and buried in Glasnevin Cemetery Dublin, See Tobin-Liam Biography. To re-state... the military legal process relating to allegations of Desertion, or Mutiny and Sedition irrespective of rank is thus.....Every Person Subject To Military Law....Shall on Conviction by Court-Martial....and its CONVICTION AND PUNISHMENT BY COURT-MARTIAL AND NOT CONVICTION AND PUNISHMENT BY POLITICIAN/POLITICAL CHAMBER....Consequently an  Irish Military Court has sole jurisdiction to make determinations as to the guilt or innocence of accused defence forces personnel as persons subject to Irish Military law and to award punishment upon conviction by the court and that's THE LAW. Historians should also be cognisant of the unanimous five-judge Supreme Court judgement reported in the Irish Times 7 December 2012 which has widespread implications for other administrative decisions where unfairness is alleged. Giving the court’s judgment in favour of the appellant, Mr Justice Nial Fennelly observed that developing Irish jurisprudence provided compelling evidence that it must now be “unusual” for a decision-maker to be permitted to refuse to give reasons. He said “Where fairness can be shown to be lacking, the law provides a remedy”, "Persons affected by administrative decisions should have access to justice and the right to seek court protection to ensure the rule of law had been observed, fair procedures were applied and their rights not unfairly infringed". Mr Justice Fennelly also said there was an emerging commonly held view that persons affected by administrative decisions had a right to know the reasons for them so they could understand them and, if they chose, challenge them in the courts. Other commentators in analysing the desertion rate to overall strength for the Irish defence forces during the period 1939 to 1945, assert a figure of 10% desertion. The Blacklist which lists those dismissed for desertion is a combination of several categories of enlisted defence force personnel, e.g. regulars, reservists and those who had signed up as volunteers for the duration of the Emergency. This record includes the names of 756 regular army personnel who had left the colours, some 1313 personnel of the 1^st and 2^nd line reserves, the remainder were volunteers which includes members of the construction corps. The figure of 40000 being quoted by some commentators as the total strength in the Irish Army relates to regulars + reservists and does not include those who volunteered for the Local Defence Force which was approx 98000 who were later absorbed into the Defence Forces. A calculation of the total strenght e.g. 40000 (which is a combination of regular army + reservists) + the estimated 98000 personnel serving in the Local Defence Forces = 138000. Consequently the 4983 personnel recorded in the blacklist represents 3.61% of the total. Irrespective a forensic comparative study of extant documentation would prove useful in establishing the facts. While it is obvious the debate surrounding the desertion issue will continue nevertheless in the interests of establishing some semblance of historical accuracy aspiring historians/academics would be better advised to step down from their ivory towers and do more research before making further assertions...and the subject matter does require more objective scrutiny.

Help for Surviving Veterans - UK Forces

The Army Benevolent Fund have offered to support surviving veterans who are advised to contact SSAFA through their local Royal British Legion branch and take up any offer of assistance. If a veteran needs assistance from SSAFA Forces Help the criteria is one days pay in HM Forces and 7 days pay for help from the Royal British Legion. These organisations are always willing and ready to assist any surviving veteran who is in financial need and who is eligible. Requests for assistance are always treated in confidence: Links to Royal British Legion Branches: Combatants pay a high price for the failure of governments to pursue democratic outcomes to international disputes and the psychological effect of combat stress still endures for survivors. Indeed families also become unwitting victims and that experience transcends the generations. Combat Stress delivers dedicated treatment and support to ex-Service men and women with conditions such as Post Traumatic Stress Disorder (PTSD), depression and anxiety disorders. There is nothing wrong about going to ask for help and if you suspect a problem don't procrastinate go and seek that help.

Contacts - Veterans Records - UK Forces

Military and Veterans Records at the National Archives

Veterans Records Medals Badges

Ministry of Defence - Veterans

Help for Surviving Veterans - Irish Defence Forces

Óglaigh Náisiúnta na hÉireann Teoranta is the official name of the Organisation of National Ex-Servicemen and Women (O.N.E.T) and is dedicated to looking after the welfare of ex-service personnel of the Irish Defence Forces. There is nothing wrong about going to ask for help and if a veteran suspects a problem go and seek that help through their website link. See also Defences Forces Appeal Will Help Homeless Veterans - Irish Independent: Campaign To Help Ex-Defence Forces Staff In Trouble - Irish Times: Please note former defence force personnel who were dismissed from the defence forces pursuant to Emergency Powers Order 362 of 1945 and who were honourably discharged from UK Forces should initiate enquiries for assistance through their local Royal British Legion Branch.

Contacts - Veterans Records - Irish Defence Forces

Records of personnel who served in the Irish defence forces during the Emergency e.g. 1939-46, are held in the Irish Military Archives, Cathal Brugha Bks, Rathmines, Dublin 6, and if available can be accessed subject to the discretion of the Officer In Charge. The Military Archives/Frequently Asked Questions Section should be reviewed before making direct contact. Please be assured enquiries to the military archives are always treated in confidence.

Advisory

It is recommended that "The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports" (Dublin, 2011), (Michael Kennedy and Victor Laing (eds.), published by the Irish Manuscripts Commission; The Constitution of Ireland/English Version Bunreacht na hÉireann/Irish Version and relevant case law be consulted as essential primary source material in the first instance, other bibliography should be available in local libraries or book stores. To rebut some of the hyperbole on the desertion issue it has been found necessary to restate some points ad nauseum consequently discerning readers may find this website repetitive and cumbersome, however the text will hopefully assist all concerned to work through the various issues:

1. An article Unsung Heroes Of War by Dan Buckley (Irish Examiner 2 July 2012) credits Robert Widders and his book Spitting On a Soldiers Grave as galvanising our campaign which is untrue. Indeed the erroneous assertion by Mr Widders that deserters were Courtmartialed After Death created such a controversy that our effort has been singularly occupied since June 2011 rebutting his contention through the letters page of the Irish Examiner and other news media. However of equal concern is the allegation by Mr Widders and repeated by Mr Buckley that children of deserters were 'singled out for particular abuse’. Irrespective of the reports into child sexual abuse there is no extant research to corroborate the existence of a general policy initiative by the Irish Government in which children of British Soldiers were systematically and specifically targeted for (sexual) abuse or so called 'Special Treatment' just because one parent was serving with British Forces or that service with UK forces created a higher risk of abuse for these children in comparison to other children because of a perceived anti-British feeling within Ireland during the Emergency Period, and which no doubt would have surfaced within the reports into child sexual abuse and been proven some time ago. Every child in those industrial schools/orphanages/homes was innocent, vulnerable and open to exploitation from predator paedophiles regardless of background. While it is obvious the debate surrounding the desertion issue will continue nevertheless in the interests of establishing some semblance of historical accuracy perhaps a more objective assessment of extant documentation etc within an academic environment might enable a more definitive conclusion. See also - Children Of Deserters Not Singled Out For Abuse Irish Examiner 7 July 2012;

 

2. Dr Bernard Kelly's assumptions (Just Deserts or Just Deserters? - Irish Independent 26 January 2012) on the Raison d'être for our campaign are a way of the mark. The Irish Soldiers Pardons Campaign (WW2) has always accepted without equivocation that desertion is a serious offence and those found guilty of the offence of desertion or any military offence must suffer the consequences, however accused defence force personnel subjected to such allegations are entitled to be judged in accordance with military law and within the framework of a properly constituted military tribunal together with the inalienable right to present a defence on their behalf pursuant to the constitution. It is the function of a military court to adjudicate on the guilt or innocence of an accused and while it is the function of politicians to make the laws it is not their function to act as judge, jury and executioner, as was the case when Mr de Valera initiated his Emergency Powers Order in 1945, to dismiss and punish alleged deserters. Dail Eireann is not a military court of law and no amount of side stepping or obfuscation of the English language on the part of Mr Kelly el al can change that fact. The traumatic experience of these defence force personnel and their families post war should be a salutory warning to all concerned of what can go wrong when a government demonstrates a total disregard for the constitutional rights of its own citizens by ousting the administration of justice for the sake of political expediency. Interestingly during the Shot at Dawn Campaign we had the same objectors like Dr Kelly coming out of the woodwork raising all kind of fears that somehow the ground will open up if a government moved with compassion on the issue. It is also apparent that Dr Kelly does not fully comprehend the difference between a Pardon and Amnesty. A pardon, blanket or otherwise, will not change the history but will remove insofar as practicable the stigma of dishonour attached to those named in the Blacklist. Interestingly on Thursday 11 June 2009 in a debate on the Report on the Commission to Inquire into Child Abuse: Dermot Ahern TD (Minister, Department of Justice, Equality and Law Reform; Louth, Fianna Fail), in referring to the pardon/amnesty procedure stated inter-alia: "I take this opportunity to clarify this point of law. Many well-meaning individuals have made different suggestions to address this concern. However, if we are not careful, rather than solving the issue we may add to the problem and reinforce the perception that these children had criminal records. The question of a pardon or amnesty has been raised on occasion". Dr Kelly should note the governments interpretation of a Pardon on legal advice from the Attorney General; "Immediately following the publication of the Ryan report, I asked the Attorney General to examine this issue. A pardon can apply only if a person has a criminal conviction recorded against him or her. Reference to pardons may serve to reinforce the perception that these innocent children were convicted of some crime". Thus the dismissal and punishment decided on by the Irish Parliament/Dail Eireann pursuant to Emergency Powers Order 362 of 1945 against those accused of desertion post WW2 was in fact a criminal conviction imposed by Irish politicians and not a decision of the courts following a military tribunal. Indeed it was also unlawful for semi-state organisation's to employ blacklisted defence force personnel and to purge any criminal liability on the part of employers who had breached the terms of the Order an additional section was included in the amendment of the Defence Forces (Temporary Provisions) Act, 1949 to rectify. Accordingly on the 6 June 2011 a legislative/pardoning resolution was proposed to address all concerns. To elucidate, mechanisms used by governments as clemency powers can either be through a grant of Amnesty or Pardon or a combination of both. Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offence to the position of being innocent, it includes more than Pardon in as much as it obliterates all legal remembrance of the offence. In contrast, a Pardon is the forgiveness of a crime and can change or remove the effects of the penalty, however the scope of both Amnesty or Pardon is also dependent on the language used. Dr Kelly's other allegation that the pardons campaign revolves around the fact that deserters joined the fight against Nazism is taking poetic licence with the reasons for our campaign effort. The effort of the Irish Soldiers Pardons Campaign (WW2) has always been grounded in defending the right of accused defence force personnel to fair procedures and natural justice as defined by the constitution and for Dr Kelly et al to argue, suggest or by implication promulgate the view that political expediency takes precedence over the democratic principles of natural justice and fair procedures in a democracy which has a written constitution is legally and morally untenable. Dr Kelly should also consider rechecking his figures as there are 4983 defence force personnel listed in Dev’s blacklist and not 4634 as he previously stated in his history Ireland article DeV's Treatment of Irish Deserters. Perhaps Dr Kelly might also advise as to who redacted the figure 4983 from the official republished confidential blacklist of defence force personnel down to the lower number of 4634 as stated in his article? Perhaps he might also consider advising as to the names of each serviceman redacted from the blacklist which was distributed by the Irish government post war? On the other hand perhaps Dr Kelly should consider getting his facts and figures right before he makes any further public assertions. We cannot change the history of the Emergency and any legislative provision will not change the history of that period. However as resolving difficult and complex historical questions without revising the chain of events is an attribute of wise governance, and as the Minister for Defence Mr Allan Shatter T.D. has the necessary political and legal acumen to deal judiciously and compassionately with the desertion issue, Dr Kelly can rest easy in his ivory tower.

 

3. It has also been asserted on several occasions elsewhere that it was the book 'Spitting on A Soldiers Grave' by Robert Widders which galvanised and kick-started the Irish Soldiers Pardons Campaign (WW2) thereby crediting the author and his book as the primary source and instigator of our effort, which is untrue. To clarify the position. Although the subject of desertion in the Irish defence forces has been reviewed since 1945 by Professor Brian Girvin (see also Professor Brian Girvin University of Glasgow) and other notable historians nevertheless it was the publication on the 24 May 2011 of an excellent and incisive article by Kevin Myers in the Irish Independent in which he stated inter-alia 'that Army deserters would no longer be court-martialled...Instead, by special government decree etc' which raised an immediate concern that for political expediency the de Valera Government had ousted the jurisdiction of an Irish military court of law post war to deal with (alleged) defence force deserters and along with Mr Myers call for an 'unconditional pardon' for these servicemen was together the prompt and kick-start that led to the launch in Ireland on the 6 June 2011 of the Irish Soldiers Pardons Campaign (WW2), and it was the Irish Soldiers Pardons Campaign (WW2) campaigning collectively as a TEAM which galvanised the TEAM EFFORT. From the outset the arguments and views expressed on this website and elsewhere were developed independently by the Irish Soldiers Pardons Campaign (WW2) working through our own established legal and academic sources. Indeed the concept of an Irish Soldiers Pardons Campaign (WW2) is based on previous experience coordinating the Shot at Dawn Campaign Irl which was organised in 2002 as a TEAM EFFORT to achieve pardons for world war one executed Irish born British soldiers. The pardons that were eventually granted in November 2006 were the official British government response to the Irish Government Report submitted to the Foreign and Commonwealth Office in October 2004. In reality a Pardons Campaign for Irish defence force personnel was initiated many years ago through the valiant efforts of families and parents of these alleged deserters and led by the Fine Gael Party and other individual politicians in Dail Eireann/Irish Parliament in their combined attempt to nullify the effects of Emergency Powers (362) Order 1945. The current mosaic of world wide support for the objectives of the Irish Soldiers Pardons Campaign (WW2) transcends the political and sectarian divide and is an evolvement of that TEAM EFFORT inaugurated post world war two. Irrespective of the moral force arguments being promulgated as to whether former defence force personnel had joined UK forces to fight against the Nazis or not, there is enough reasonable doubt as to the unconstitutionality of Emergency Powers Order 362 of 1945 which in our view is a cogent enough reason to pardon all concerned listed in De Valera's Blacklist. To those with an interest in Irish history and who are fundamentally opposed to pardons the questions are put thus; Do the constitutional imperatives regarding due process and natural justice as defined in the Constitution of Ireland Bunreacht na hÉireann not have primacy over political expediency in a democracy with a written constitution ? or is it the case that Dail Eireann as a political chamber can disregard the Constitution of Ireland Bunreacht na hÉireann and act as judge, jury and executioner over its own citizens when it suits a political agenda ? Although each case turns on its facts the judgement delivered by Mr Justice McKetchnie in the Court Martial Appeal Court on Thursday 24 May 2012 relating to an appeal by an Irish Air Corps Officer against his dismissal from the defence forces is instructive as to the law applicable to persons who are subject to military law pursuant to the Defence Force Acts. The court held that 'As the Board (e.g. the Court-Martial) determines a person's guilt or innocence, and noting the community in question is of military personnel with limited numbers, its composition plays a crucial role in affording to an accused person a trial in due course of law'. The court ruled that because the Board was not constituted in accordance with law, its decision must be set aside'. Extract Irish Times Thursday 24 May 2012. This judgement affirms the legal position that a court-martial and the courts do have jurisdiction to determine the innocence or guilt of an accused member of the defence forces and it also affirms that the constitutional imperatives regarding due process and natural justice as defined in the Constitution of Ireland Bunreacht na hÉireann do have primacy over political expediency in a democracy with a written constitution. Consequently members of the Irish Defence Forces who were dismissed and punished unheard in 1945 pursuant to Emergency Powers Order 362 and who had no opportunity of recourse to a court-martial could arguably adduce a cogent line of reasoning to show that the construction and collateral effect of Emergency Powers order 362 of 1945 was such that it breached their constitutional rights and was suspect in Irish law;

 

4. Cognisant that Dail Eireann/Irish Parliament as a political chamber is precluded from ousting the jurisdiction of an Irish military court of law, the subsequent conviction, punishment and dismissal on the 8 August 1945 pursuant to Emergency Powers Order 362 of persons from the Irish Defence Forces for the alleged military offence of desertion is legally suspect. Consequently, as no Irish defence force court-martial/military tribunal/court of law was convened pursuant to the Defence Force (Temporary Provisions) Act 1923 and its Successor Defence Force Acts in order to prosecute accused defence force personnel named as deserters in the Irish Government Blacklist, the quotations 'courtmartialed after death', the Irish Government 'court-martialled', 'court-martialled' by the Irish Government, used by Robert Widders in his book Spitting on a Soldiers Grave, and the quotations 'after the War court-martialled-even the dead' in his 2010 Press Release, and in his letter 'they even court-martialled dead men' in the Irish Independent 23 June 2011 to describe the political process enacted by the de Valera government to dismiss and punish these soldiers post war and post mortem is misleading and factually incorrect. The belated use of the term 'kangaroo courtmartial' by Mr Widders in an attempt to negate his original erroneous assertion that these men were 'court-martialled after death' unfortunately raises questions as to the probity of the books content.  The consequence of Mr Widders erroneous assertions can also be seen from Senate Official Records when one Senator in putting his supportive question to the house added inter-alia they were court-martialed in absentia.  As there was no court-martial ever convened by the Irish defence forces to adjudicate on those listed as dismissed for desertion pursuant to Emergency Powers Order 362 and as the campaign was grounded from the outset in constitutional law and not on the moral force argument as to whom went to fight fascism, the contribution by Mr Widders in the Irish Independent 23 June 2011 which although supportive on its face was in reality prejudicial to the objectives of the campaign effort to the extent that since June 2011 it has been found necessary to continually rebut miss-statements of fact surrounding the political process used to dismiss these service personnel from the Irish defence forces post war. Any reasonable enquiry would have come across the effects of the Army Deserters Dismissal Order that was published in the Irish Press 9 March 1945 which clearly excluded court-martial and should have been picked up by Mr Widders prior to publication of his book. Mr Widders also claims to be the last man alive to have served in all three Branches of the armed services of the Royal Navy, the Army and the Air force, a claim which was publicly challenged on the 2 February 2012 by a 77 year old elderly veteran who has the same distinction - see Whitehaven News;

 

5. Mr Widders also contends that children of British Soldiers were subjected to 'Special Treatment' within the industrial school system in Ireland thereby implying that these children were specifically targeted for (sexual) abuse within the industrial schools managed by the religious orders and that the abbreviation SS, Saighdiúr Sassenach to mean English Soldier on one school record supported his view. It should be noted that descriptive identifications in school rolls also occurred where either parent was deceased and was noted in the register. Orphans were numerated and identified as orphans. As the Irish language was commonly used in Irish schools the fathers occupation either by designated number if that occupation had a number assigned or by abbreviated description in the case of an occupation not numerated for official purposes would have been so stated in the Irish language on the school's register and the backgrounds of each child taken in by these schools was also recorded in minute detail. Irrespective of the reports into child sexual abuse there is no extant research to corroborate the existence of a general policy initiative in which children of British Soldiers were systematically and specifically targeted for (sexual) abuse or so called 'Special Treatment' just because one parent was serving with British Forces or that service with UK forces created a higher risk of abuse for these children in comparison to other children because of a perceived anti-British feeling within Ireland during the Emergency Period, and if there was extant documentary evidence of a general policy initiative by the Irish government targeting children of British Soldiers for abuse no doubt that would have surfaced within the reports into Child Sexual Abuse and been proven some time ago. Every child in those industrial schools/orphanages/homes was innocent, vulnerable and open to exploitation from predator paedophiles regardless of background. Regrettably other commentators have followed Mr Widders in his contention and repeated a similar allegation that  'children whose fathers left the Defence Forces to serve in the British military were, like thousands of other children, sent to industrial schools. Many children suffered and the children of these men were forced to wear clothes into which the abbreviation SS, meaning "Saighdiúr Sasanach", was stitched and meant that they were singled out for the gravest forms of violence and neglect.' This again begs the question, where is the proof of a general policy initiative to target children of British Soldiers by the Irish Government for special treatment and or (sexual) abuse? However an objective assessment of extant documentation etc within an academic environment might enable a more definitive conclusion;

 

6. Mr Widders assertion that 'Irish volunteers returning to Ireland lost their eligibility for benefits and dole from the UK' and that 'special concessions for Irish volunteers were refused by the treasury' is also factually incorrect and requires clarification. While service in the British Forces during world war two qualified former Irish members of British Forces for UK unemployment benefits only in the event the applicant had returned to live in the UK and registered his/her domicile as being habitually resident in the UK, nonetheless by the 28 April 1948 negotiations concluded between the British and Irish Governments had resulted in bringing Irish volunteers other than those dismissed for alleged desertion pursuant to Emergency Powers (No.362) Order 1945 who had served in UK forces during WW11 and who were discharged in the summer of 1945, within the scope of reciprocal arrangements pursuant to the British Unemployment Insurance (Eire Volunteers) Act, 1946 and Part II of the corresponding Irish Unemployment Insurance Act, 1946 which had been brought into operation in Eire following a commencement Order signed on the 27 February 1947 by the Irish Minister for Social Welfare. After more consultation both governments gave a wider interpretation to the terms of the two Acts which bridged the gap caused by the date on which those Acts were brought into operation and enabled Irish volunteers who were demobilised from UK forces on or after July 23, 1945, to satisfy the contribution condition subject to thirty weeks' service in British Forces commencing on any date between September 3, 1939, and August 15, 1945. Altogether up to 31 March 1948, 4461 successful claims for special benefit pursuant to Part II of the Irish Unemployment Insurance Act, 1946 were made by former Irish members of UK forces resident in Eire. Although former defence force personnel who had joined UK forces and who were dismissed on the 8 August 1945 by the de Valera government for alleged desertion would ordinarily have satisfied the criteria regarding the contribution condition for unemployment benefit as defined in the British Unemployment Insurance (Eire Volunteers) Act, 1946, nonetheless they would not have satisfied Part 11 of the corresponding Irish Unemployment Insurance Act, 1946, which disbarred any claimant from unemployment benefit in Eire who was already disqualified from Irish unemployment benefit pursuant to Emergency Powers (No.362) Order 1945. As former defence force personnel who served in British Forces during world war two had already qualified for unemployment benefit through the contribution condition pursuant to reciprocal Acts initiated and agreed by both governments from December 1946 and brought into operation by the Irish government on the 27 February 1947, the subsequent amendment of Emergency Powers (No.362) Order 1945 on the 22 February 1949 by Section 8 of the Defence Force (Temporary Provisions) Act, 1949 effectively restored defence force claimants to benefit if still resident in Ireland;

 

7. Tommy Graham Editor of History Ireland stated in his contribution on the BBC NI Newsline programme, 2 February 2012; "My suggestion is that they be given an amnesty. A Pardon implies that the government did something wrong". An Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offence to the position of being innocent, it includes more than Pardon, in as much as it obliterates all legal remembrance of the offence. In contrast, a Pardon is the forgiveness of a crime and can change or remove the effects of the penalty, however the scope of both Amnesty or Pardon is also dependent on the language used. Actively supported by the Irish Government through diplomatic channels the British government was able to use considered parliamentary language to alleviate the roughness of their Pardons amendment passed by the House of Commons in November 2006 for the 306 WW1 Shot at Dawn.. and the history of world war one remains intact. Even though the Irish Government Report had previously adduced evidence that WW1 court-martials were legally flawed the British pardon did not decide on the guilt or innocence of those Irish born British soldiers executed for military offences during world war one but did remove insofar as practicable the stigma of dishonour that was attached to the executions for the sake of the families and did so in a unique way which avoided the issue of fault by not apportioning blame to either side. Crucially the British Pardon did not displace the history of the Shot at Dawn but left that history intact for the historians to deliberate on ad infinitum. In the March April 2012 edition of History Ireland Mr Graham also suggests inter-alia that the court-martialling of deserters would have been more severe thereby implying that the political process route via Emergency Powers (362) Order of 1945 was mild in comparison, he should ask the families as to whether the so called punishment was mild or not and taking into account that Mr Graham had not seen the contents of the Blacklist until 28 February 2012, perhaps he should do the research first before making further ill-informed comment. Dail Eireann/the Irish Parliament is not a military court of law and no amount of side stepping or obfuscation of the English language on the part of Mr Graham et al can change that fact. Pursuant to the separation of powers in the Irish constitution Dail Eireann as a political chamber cannot legally subvert the judicial function of the courts and if Mr Graham has evidence to the contrary he should produce that evidence forthwith. The political process inaugurated by the de Valera government to adjudicate on the desertion issue post war and which Mr Graham argued as being masterly on a television broadcast in 2011 was legally flawed from the outset and the policy of Irish Neutrality which Mr Graham has also raised has nothing whatsoever to do with the treatment of the desertion issue per se. Indeed raising the policy of Irish neutrality is a red herring and is intended to distract the debate away from the questionable political process that was used by the de Valera Government some three months after the end of the second world war to adjudicate on persons who were subject to Irish military law and accused of desertion during the Emergency. The introduction of Emergency Powers (362) Order 1945 was a cynical political exercise which ousted the jurisdiction of a military court of law and the administration of justice for the sake of political expediency and shows a total disregard by the de Valera Government for the constitutional rights of its own Irish citizens post war. Although in a previous interview with the BBC Mr Graham recommended an amnesty as a solution, he now recommends that the Attorney General should leave matters as they are and then opines sarcastically in his editorial "I understand that she has other, pressing matters on her desk in any case". Interestingly Mr Graham was an avid supporter of the Shot at Dawn Campaign Irl and fully supported the Irish Government in its efforts to achieve the one size fits all blanket pardon granted by the British Government in November 2006 for the WW1 Irish Shot of Dawn on the basis of an injustice but is apparently not in favour of a one size fits all blanket pardon for Irish defence force personnel subjected to the rigours of the one size fits all Emergency Powers (362) Order of 1945. Mr Graham's obvious contempt for the objectives of the Irish Soldiers Pardons Campaign (WW2) and our families really comes into its own when he permits the unauthorised publication of a photograph and a family heirloom of a group of soldiers now deceased in his magazine. The use of this photograph in the History Ireland article "The Disowned Army" by Donal Fallon is a breach of copyright irrespective as to whether the family member is credited or not and despite indicating to the editor that the families be left out of the issue it was included against our expressed wishes. One wonders as to what ethos and editorial guidelines History Ireland subscribes to? It seems Mr Graham and Oscar Traynor have something in common and are re-echoing Traynor's Words of Condemnation that these Irish defence force (alleged) deserters and their families are not worthy of consideration? As our campaign effort is focused primarily on seeking natural justice for surviving veterans and their families, and as Mr Graham and History Ireland are vehemently opposed to any resolution to the pardons issue on the spurious grounds that political expediency takes precedence over the democratic principles of natural justice and the right to defend oneself in the military courts, and as Mr Graham's view represents a significant departure from the rights of citizens as determined by the Constitution of Ireland, the question now arises as to which constitution does Mr Graham owe allegiance to? In common law legal systems such as in the Republic of Ireland, is not the trial/conviction/punishment of a person/alleged deserter in absentia, that is, in a trial/military court in which he/she is not present to answer the charges, held to be a violation of natural justice and an infringement of a persons right to a fair hearing? Significantly at the end of October 2011 the proposed 30th Amendment of the Irish Constitution dealing with the powers of the Oireachtas/Irish Parliament, was heavily criticised on the basis that politicians would be given powers to determine for themselves what is fair and what is not and that citizens would  be deprived of their right to legal representation if passed by referendum. Senior legal figures including Professor Gerry Whyte of Trinity College also expressed disquiet that the amendment might give the Oireachtas power to conduct inquiries in which people could be deprived of their right to fair procedure. The Irish Council for Civil Liberties (ICCL) urged Voters to reject the proposals which they claimed could turn Oireachtas Committees into “kangaroo courts”. A group of eight former Irish attorneys-general came out against the referendum, stating that these proposals would seriously weaken the rights of individuals to their good name and provide insufficient protection for the independence of the judiciary. Various other eminent legal practitioners raised concerns about this provision including former Minister for Justice Mr Michael McDowell SC who urged the electorate to Vote No to inquiry powers while we can and explained his ratio publicly in the Irish Sunday Independent 23 October 2011 arguing, that the proposed constitutional amendment was utterly disproportionate, unjustifiable and commented: "If no politician in the present Government and only a handful in the Dail have had the courage to speak out against it (30th Amendment of the Irish Constitution) when it was being cooked up in secret, how can we trust a Government in future not to abuse these powers"? Mr Graham should note that the referendum on Houses of the Oireachtas Inquiries was rejected by the Irish people on Thursday 27 October 2011. Irrespective as to whether defence force personnel enlisted in UK forces or went elsewhere, was not Emergency Powers (362) Order of 1945 so constructed that its effect was to frustrate the right to a fair hearing for all defence force personnel named as deserters in the de Valera Government Blacklist post war? Was not Emergency Powers (No. 362) Order of 1945 a legislative exercise of a judicial power which determined the guilt and inflicted punishment on an identifiable class e.g. defence force personnel without the provision and protection of a judicial trial, e.g. a military court-martial? Surely all citizens have equal rights pursuant to the Irish constitution? In this regard it is instructive to note the submission on the 31 August 1976 by An Taoiseach (Prime Minister) Liam Cosgrave TD to Dail Eireann as he moved the resolution to introduce Emergency Powers Bill 1976 and the Criminal Law Bill 1976. Mr Cosgrave stated inter-alia "there have been comments and headlines which suggested that the Oireachtas was to be asked to suspend the Constitution. Deputies will appreciate, I am sure, that this is not so. If it were true, the Constitution would have been suspended since 1939. The reality is that it has not been so suspended by adoption of the present resolution. The protection from Constitutional challenge which would be afforded would extend solely to laws expressed to be for the purpose of securing public safety and the preservation of the state". The subsequent Irish Supreme Court decision In Re Art 26 and the Emergency Powers Bill 1976 - 1977 Irish Reports 159 is the legal authority which establishes that an Emergency Powers Bill leaves general constitutional rights intact. Consequently as the Constitution of Ireland Bunreacht na hÉireann was not suspended during the Emergency had not accused defence force personnel the inalienable right to adduce and challenge evidence in their defence according to military law as persons subject to military law and within a military court of law following the conclusion of world war two? For Mr Graham et al to argue, suggest or by implication promulgate the view that political expediency takes precedence over the democratic principles of natural justice and fair procedures in a democracy which has a written constitution is legally and morally untenable. The proposition that the military offence of desertion is unforgivable, unpardonable and that a pardon would be tantamount to condoning desertion within the Irish Defence Forces being advocated by those opposed to the pardons campaign is also CODOLOGY. The same contention was disseminated some years ago by those who were also opposed to the granting of pardons to the (Irish) Shot at Dawn on the spurious grounds that any compassionate act by the British Government to Pardon WW1 Servicemen would be prejudicial to the good order and military discipline of UK forces. For the record The Morale and Military Discipline of the British Armed Forces remains steadfast. Other governments have pardoned service personnel dismissed for desertion without undermining their status quo. The ingenuity of the New Zealand Government parliamentary draftsman in constructing a simple and straightforward text which does not rewrite the history of the New Zealand WW1 executed is exemplified unambiguously in their Pardon for Soldiers of the Great War Act 2000 and for the record The Morale and Military Discipline of the New Zealand Defence Force remains steadfast. Irrespective, we are confident in the Bona Fides of the Minister for Defence Mr Allan Shatter T.D. who has the necessary political and legal acumen to deal judiciously and compassionately with the Pardons issue in the interest's of the surviving veterans and their families and to do so without changing the history of the Emergency or tearing up the Manual of Irish Military Law... and for the record The Morale and Military Discipline of the Irish Defence Forces is steadfast...and will always remain steadfast;

 

8. The de Valera Blacklist of defence force personnel dismissed for desertion pursuant to Emergency Powers (No.362) Order 1945 encompasses various classes of soldier e.g, regulars, reservists, those that enlisted for the Emergency/Volunteers and a final category of men and boys who joined the Construction Corps and whom were designated non-combatants. Those who volunteered for the Construction Corps were invited to sign up for 12 months and thereafter had the option as free agents to join the regular Army if they wished according to the Government Advertisement dated 25 October 1940. However following the enactment of the Defence Forces (Temporary Provisions) Act, 1941 the right to be discharged for all defence force personnel including the power by recruits to purchase their discharge within three months after attestation was suspended from the 1 January 1941 by the de Valera Government. The prohibition on discharge was subsequently continued in the Defence Forces (Temporary Provisions) Act, 1942. In relation to those who had initially volunteered to defend the state, the statement by the Chief of Staff on the 18 of April 1945 is informative. He said  'I think it is safe to say that every conceivable method of attracting recruits has been tried, yet the only period when men came forward freely was when the danger appeared most acute and when the likelihood of attack was most imminent'  (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), p411, published by the Irish Manuscripts Commission. Coincidentally in May 1940 the Irish Department of External Affairs destroyed many papers relating to Irish-German relations, fearing that Ireland would soon be invaded by Germany. Interestingly the rate of desertion from the Irish defence forces surged post the Battle of Britain in 1940 when the danger of a German invasion ceased to be viewed as imminent leading to the reasonable conclusion that volunteers who had answered the initial appeal by the Irish government and enlisted in the Irish defence forces during world war two did so on the basis of a threat of an imminent Nazi invasion in order to defend the state which also includes Irish defence force personnel whose discharge through the normal channels was blocked for the duration of the Emergency and who were dismissed en masse, unheard and in absentia for (alleged) desertion by the de Valera government pursuant to Emergency Powers Order 362. Apparently it was only in 1994 that the Irish Government took the belated decision to award medals to members of the Construction Corps who had served for 365 days during the Emergency. Arguably a dismissal pursuant to Emergency Powers Order 362 may preclude an applicant or their representative from a medal entitlement even though the soldier in question may have had the time qualification in the defence forces during the Emergency?

 

9. An Aspect of Irish Neutrality;

 

10. Initially two Irish flags were used on this website as part of our presentation. However following the magnanimous gesture of one Unionist politician who without our knowledge placed a tricolour on his website to show his support for the pardons campaign we deemed it a matter of courtesy to reciprocate by including the Union flag to respect his British tradition and to also recognise the diversity of the traditions on the island of Ireland who have now crossed the sectarian divide and joined together in support of the campaign effort;

 

11. The poppies used on this website are to respect the memory of those defence force personnel alleged to be deserters who lost their lives while serving with UK forces during world war two and who were subsequently dismissed for desertion post mortem on the 8 August 1945 by the de Valera government;

 

12. With reference to an article by Tom McGurk in the Irish Sunday Post Desertion in a Dark Hour Can Never be Justified (22 January 2012). The Irish Soldiers Pardons Campaign (WW2) has always accepted without equivocation that desertion is a serious offence and those found guilty of the offence of desertion or any military offence must suffer the consequences, however accused defence force personnel subjected to such allegations are entitled to be judged in accordance with military law and within the framework of a properly constituted military tribunal together with the inalienable right to present a defence on their behalf pursuant to the constitution. A legislative assembly acting as a substitute for a military tribunal subverts the judicial function of a court-martial and is reminiscent of a Kangaroo Court. It is the function of a military court to adjudicate on the guilt or innocence of an accused and while it is the function of politicians to make the laws it is not their function to act as judge, jury and executioner, as was the case when Mr de Valera initiated his Emergency Powers Order in 1945 to dismiss and punish alleged deserters. Dail Eireann is not a military court of law and no amount of side stepping or obfuscation of the English language on the part of Mr McGurk et al can change that fact. The traumatic experience of these defence force personnel and their families post war should be a salutary warning to all concerned of what can go wrong when a government demonstrates a total disregard for the constitutional rights of its own citizens by ousting the administration of justice for the sake of political expediency. Interestingly, prior to the referendum held at the end of October 2011, the proposed 30th Amendment of the Irish Constitution dealing with the powers of the Oireachtas/Irish Parliament, was heavily criticised by many eminent legal practitioners on the basis that politicians would be given powers to determine for themselves what is fair and what is not and that citizens would be deprived of their right to legal representation if passed by referendum. Significantly the referendum on Houses of the Oireachtas Inquiries was rejected by the Irish people on Thursday 27 October 2011. Mr McGurk also finds it astonishing that a number of British Army Associations are in support of the Pardons Campaign objectives and makes a disparaging reference to the UDR advising of its history. Within the context of the troubles there is a lot of history on all sides to be worked out as Mr McGurk well knows and people of goodwill will always find ways to move outside the box. The Regimental Association of The Ulster Defence Regiment CGC Portadown Branch did that and indicated their support which is significant, most welcome and valued. The fact that the Northern Ireland Assembly has now united in a call for pardons shows how far the peace process has developed within the six counties proving that there should be no cold place within Northern Ireland for anyone from either side of the sectarian divide irrespective of the hurt caused on all sides by all sides. People of goodwill can make progress…working together. Perhaps in time we in the Republic of Ireland will emulate their example ?

 

13. The Irish Soldiers Pardons Campaign (WW2) does not seek any compensation for the veterans or their families and neither is compensation or any other pecuniary benefit deemed appropriate. Our only Raison d'être is to persuade the current Irish government to initiate a pardoning structure to remove insofar as practicable the stigma of dishonour that is a consequence of the effects of this emergency legislation taking into account all the circumstances, past and current, in order to rehabilitate the memory of those named and shamed in the Irish Government Blacklist. Guided by wisdom, justice and compassion and accompanied by the adroit use of sympathetic parliamentary language other governments have enacted political mechanism's to redress decisions of previous administrations without opening up the appalling vista scenario where the granting of pardons might be seen as somehow opening the flood gates undermining the status quo. During WW1 the British Army gave accused servicemen a hearing, albeit summary, pursuant to a field general court-martial on the battlefield, which is in contrast to the political process used by the de Valera government post world war two which denied defence force personnel subject to military law the opportunity of a hearing by court-martial. In November 2006 the British government found a way to deal with the Irish Shot at Dawn pardons issue, ironically with Irish Government Input see also Minister Ahern announces the submission of a Report to the British Government on the twenty-six Irish soldiers ‘Shot at Dawn’ during World War 1 - 28/10/2004. Consequently, an Irish government should be able to follow the British government's wise, compassionate and judicious example ? 

 

14. As their cases have already been adjudicated within the appropriate legal forum of an Irish military court of law, defence force personnel who were prosecuted during and post the emergency period for military offences, and who had allegations against them determined by a court-martial convened pursuant to the provisions of the defence force acts then in force, are excluded from the remit of the Irish Soldiers Pardons Campaign (WW2).  Consequently the campaign effort is limited in scope to those who were dismissed for alleged desertion pursuant to Emergency Powers Order 362 and subsequently named in the confidential Blacklist circulated by the Irish government post war;

 

15. Irrespective of various moral force arguments being promulgated as to whether individuals joined UK forces or not Irish defence force personnel alleged to be deserters post war were subject to Irish military law and as such a court-martial had jurisdiction in which to try and punish any person for an offence against military law, committed by such person while subject to military law, and was the appropriate legal forum to adjudicate in each case. The enactment of an Emergency Powers Order on the 8 August 1945 by the de Valera government to deal with the military offence of desertion was a cynical political exercise which deprived a military court of its jurisdiction demonstrating an utter contempt for any rights that defence force personnel may have had pursuant to the Irish constitution. It is also significant that the vast majority of those 4983 personnel named in the confidential Irish Government Blacklist as dismissed for desertion are from working class backgrounds and that officers who may have allegedly deserted were specifically excluded from the effects of Emergency Powers Order 362. The issue has always been about political interference in dealing with the military offence of desertion which inevitably led to an injustice because the due process inherent in a court-martial and which is a distinct feature and judicial attribute of an Irish military court of law was not observed by the de Valera government post war. As the confidential blacklist disseminated by the de Valera government can now be purchased online through Naval and Military Press its publication has reconvicted and stigmatised these Irish defence force personnel all over again thereby maintaining a ‘stain of dishonour’ on their families good name in perpetuity;

 

16. Cognisant that Emergency Powers Order 362 enacted by the de Valera government on the 8 August 1945 had ousted the jurisdiction of the court-martial process which denied Irish defence force personnel accused of the military offence of desertion their inalienable right to adduce evidence in rebuttal or in mitigation in a court of law, and as accused service personnel were tried, convicted, punished and subsequently dismissed en masse, unheard and in absentia pursuant to its terms, and recognising that a right to be heard is a very important constituent of the principle and deliverance of fair procedures and natural justice, consequently it is our belief that Emergency Powers Order 362 breached the constitutional rights of accused defence force personnel and as such the de Valera government was acting Ultra Vires. Accordingly, throughout this website the word desertion is prefaced by the word 'alleged' to reflect those concerns;

 

17. On the 11 February 1946 Professor Douglas Savory, Former Ulster Unionist MP for South Antrim who also represented Queen's University of Belfast, was one of the first MP's in the House of Commons to raise concerns regarding the treatment by the Irish government of Irish defence force (alleged) deserters who had served with UK forces during world war two: Background Sir Douglas Lloyd Savory (17 August 1878 - 5 October 1969) - Introduction Sir Douglas Savory Papers - PRONI.

Foreword

Following the inauguration of the Irish Soldiers Pardons Campaign (WW2) on the 6th June 2011 a Submission Appealing for Pardons was made on the 7 June 2011 to An Taoiseach Enda Kenny T.D., who on the 9 June 2011 replied extending best wishes to the campaign and noted points raised. In accordance with protocol An Taoiseach referred our submission to his colleague Minister For Defence Alan Shatter T.D, for his consideration. Senator David Norris, Mr Ged Nash T.D, Mr Joe Costello T.D, Senator Mary Ann O'Brien, Senator Maurice Cummins - Fine Gael Whip - Leader of the Seanad and Spokesperson on Foreign Affairs,  Mr Aodhán Ó Ríordáin T.D,, Joanna Tuffy T.D. Dublin Mid West, Labour have since raised the issue of pardons in Seanad Eireann and Dail Eireann. Mr P Weir MLA DUP  Mr G Campbell MLA DUP  Mr W Humphrey MLA DUP have also proposed a motion in support of pardons in the Northern Ireland Assembly:

28 June 2011: Seanad Eireann:  Order of Business - Senator David Norris - Question - "Would the Leader raise directly with the Government the case of some Irish soldiers who fought in the Second World War? After the war, in an extraordinary act of vengeance, they were court-martialed in absentia, which, I believe, is not legal but it was done. This was wrong. They were presented with no opportunity to defend themselves. Natural and constitutional justice was violated and these men were court-martialed, including, astonishingly, even those who had died defending democracy on the Normandy beaches. I ask the Leader to bring this to the attention of the Government and ask that it might consider advising the President to issue a retrospective pardon because, apart from anything else, there is still a small number of these survivors left alive and we should honour them".

 

5 July 2011: Dail Eireann: Gerald Nash T.D. Labour - Question: "To ask the Minister for Defence if he will give consideration to pardoning the ex-Irish Defence Forces servicemen who deserted during World War II in order to fight fascism and who were dismissed en masse under the Emergency Powers Order (No. 362) in 1945; and if he will make a statement on the matter": REPLY:: Mr Alan Shatter T.D., (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael) "The Emergency Powers (No. 362) Order, 1945 provided for members of the Defence Forces who had deserted or absented themselves without leave during the Emergency period commencing on 3 September 1939, for a period of not less than 180 days, to stand dismissed from the Defence Forces for desertion in a time of national emergency. In common with armies throughout the world, desertion from the Irish Defence Forces is regarded as a very serious offence. This was especially the case at a time when the world was at war and our troops were on standby to defend our country from invasion. In any consideration of the matter, we must also bear in mind the principle that such decisions cannot be left to the individual discretion of individual soldiers on active service and all soldiers must accept that there are consequences for desertion. Members of the Defence Forces who served during the Emergency were engaged in important service for their country and it is crucial that no decisions are made that would in any way diminish or undervalue their loyalty to the State and the service given by them to the State. However, I accept that many of those who deserted, went on to fight against facism in World War II and did so out of a sense of idealism and with a commitment to protect democracies from tyranny and totalitarianism. Had there been a different outcome to World War II there is no reason to believe that this State would have been immune to invasion. I am giving active consideration to the matter raised by the Deputy".

 

12 July 2011: Dail Eireann: Mr Joe Costello T.D:  (Appointed on the 20 December 2011 as Minister of State at the Department of Foreign Affairs and Trade with responsibility for Trade and Development). Question - "to ask the Minister for Defence if he will review the case of the Irish soldiers who deserted from the Irish Army to fight against fascism during the second world war; and if he will make a statement on the matter". REPLY: Minister for Defence: (Mr. Alan Shatter, T.D.): "The Emergency Powers (No. 362) Order, 1945 provided for members of the Defence Forces who had deserted or absented themselves without leave during the Emergency period commencing on 3 September 1939, for a period of not less than 180 days, to stand dismissed from the Defence Forces for desertion in a time of national emergency. In common with armies throughout the world, desertion from the Irish Defence Forces is regarded as a very serious offence. This was especially the case at a time when the world was at war and our troops were on standby to defend our country from invasion. In any consideration of the matter, we must also bear in mind the principle that such decisions cannot be left to the individual discretion of individual soldiers on active service and all soldiers must accept that there are consequences for desertion. Members of the Defence Forces who served during the “Emergency” were engaged in important service for their country and it is crucial that no decisions are made that would in any way diminish or undervalue their loyalty to the State and the service given by them to the State. However, I accept that many of those who deserted, went on to fight against fascism in World War II and did so out of a sense of idealism and with a commitment to protect democracies from tyranny and totalitarianism. Had there been a different outcome to World War II there is no reason to believe that this State would have been immune to invasion. I am giving active consideration to the matter raised by the Deputy":

 

20 July 2011: Dail Eireann: Question (12) Adjournment Debate - Deputy Gerald Nash TD - Question put for discussion re the pardoning of former defence forces servicemen who deserted during the Second World War in order to fight fascism.

 

15 September 2011: Seanad Eireann: Senator David Norris reiterates his support for the objectives of the Irish Soldiers Pardons Campaign (WW2) -  "Yours is a worthy cause and one I have raised in the past and hope to do so again in the future - David Norris".

 

22 November 2011: Seanad Eireann: Senator Mary Ann O'Brien (Independent): "As we prepare for the centenary celebrations of the 1916 Rising, I draw the attention of the House to a forgotten, although no less brave, cohort of men. During the Second World War almost 5,000 Irishmen left or deserted the Irish Defence Forces to join the British Army to fight for democracy and the future and freedom of Europe. Many of these brave men never made it home, giving their lives on the battlefield of Europe. For those who returned, their heroism was met not with honour but with hostility. In August 1945, the then Government, headed by former Taoiseach, Éamon De Valera, circulated a list of almost 5,000 service men it labelled as deserters under the Emergency Powers (No. 362) Order 1945. This list was a blunt political tool denying these men their constitutional right to defend themselves in an Irish court. Membership of this list meant a person was barred from government employment for seven years and had to forfeit any pay due. Appallingly, it was the ordinary squaddie that was tarnished as officers were exempt. It was ordinary working class lads, some decorated for valour, that were not simply forgotten but punished for their part in the fight against fascism. At the time, Fine Gael, in opposition, appealed for their pardon but then Taoiseach, Éamon de Valera and Minister for Defence, Deputy Oscar Traynor, refused. Since then there has been a movement to have them pardoned as an act of compassion. I welcomed the statement of the Minister, Deputy Shatter, in the House in July that although desertion could not be excused in any Army he realised that the circumstances were somewhat different and was prepared to give the matter some thought. For these veterans and their families, I ask the Minister, Deputy Shatter, to revoke the Emergency Powers (No. 362) Order 1945 and issue a pardon to these brave men who fought with a sense of idealism and a commitment to protect democracy from tyranny":

REPLY: Seanad Eireann: Senator Maurice Cummins Fine Gael Whip - Leader of the Seanad and Spokesperson on Foreign Affairs: "Senator Mary Ann O’Brien referred to seeking pardons for Irish soldiers who fought for the rights of small nations in the Second World War. The Minister for Justice and Equality and Defence has commented on this matter in the past and I will take it up with him. Many men from throughout this country left to fight for the rights of small nations during the Second World War. I am of the view that consideration should be given to issuing pardons in respect of them".

 

13 December 2011: Dail Eireann:  Mr Aodhán Ó Ríordáin T.D. Labour, Question to the Minister for Defence: "The Irish Soldiers Pardons Campaign is seeking official government pardons for Irish citizens World War II defence force personnel. Has the Minister given consideration to such a proposal and can he give an update on this issue":

REPLY: Minister for Defence, (Mr Alan, Shatter T.D.): "The position is that I have sought legal advice from the Attorney General in respect of a number of matters that arise in the context of considering the issue raised by the Deputy and as soon as a response is received to these I will consider the matter further".

 

12 January 2012: Dail Eireann: Joanna Tuffy T.D. Dublin Mid West, Labour: Question to the Minister for Defence: To ask the Minister for Defence his plans to pardon Irish soldiers who fought with the Allies during World War II; and if he will make a statement on the matter: REPLY: Alan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael): "This is a very complicated issue and covers a wider range of individuals other than those who deserted to join the British Army during World War II. Having regard to the wider dimensions of the issue, including for those who were actually tried by Court Martial for desertion during the Emergency and thereafter, the matter has been referred to the Attorney General’s Office for advice. The matter will require some further research by that office and detailed consideration of the wider implications of any proposed course of action. I am awaiting the advice of the Attorney General and will consider the matter further at that stage. I expect to receive that advice shortly".

 

23 January 2012: Northern Ireland Assembly: Motion: "Pardon for Irish Veterans of World War II" - Proposed by Mr P Weir MLA DUP  Mr G Campbell MLA DUP  Mr W Humphrey MLA DUP ;  "That this Assembly condemns the treatment by the then Irish Government of many Irish World War II veterans, particularly the issuing of the so called 'starvation orders'; and calls on the Government of the Republic of Ireland to issue a pardon and to apologise to the veterans and their families, and to honour all those who fought against fascism in World War II'. Pardon call for anti-Nazi fighters.

 

7 February 2012: Dail Eireann: Deputy Aodhán Ó Ríordáin - raised the question of the need to issue pardons to personnel who deserted the Irish Defence Forces during the Second World War in order to fight for the British Army.

 

14 March 2012: Dail Eireann: Written Answers - Dail Eireann - Department of Justice, Equality and Defence - Defence Force Pardons: Question 30: Aodhán Ó Ríordáin (Dublin North Central, Labour). To ask the Minister for Defence if he has considered the request from the Irish Soldiers Pardons Campaign to pardon Irish Defence Forces personnel who fought for the British Army during the Second World War; his plans regarding this issue; and  Alan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael) REPLY: The Deputy will appreciate that this is a very complicated issue and covers a wider range of individuals than those who deserted to join the British Army during World War II. Having regard to the wider dimensions of the issue, including for those who were actually tried by Court Martial for desertion during the Emergency and thereafter, my colleague, the Minister for Defence, referred the matter to the Attorney General’s Office for advice. The matter required some further research by that office and detailed consideration of the wider implications of any proposed course of action. The Minister for Defence recently received the advice of the Attorney General and as part of his consideration he is engaged in further contact with the Attorney General’s Office. Once the legal considerations have been fully examined, the Minister expects to make an early decision in the matter.

 

9 March 2012: Downing Post & News - USA Interview President of Sinn Fein Mr Gerry Adams TD: Question: But the seismic change which Ireland is going through is not without growing pains and there are still wounds that need to heal. In that vein I asked Gerry about the recent pardon of the 5,000 Irish Army “deserters” that left their posts to fight with the British against the Nazis in World War II ? REPLY: In a tone that was to be repeated throughout our interview, Gerry said that in these enlightened times, why not pardon the men and take the stigma off their families. This occurred 70 years ago, a general pardon signals a general healing for the Irish people and will mean closure to the issue. Besides many other Irish went off to fight against the Nazis and many hundreds of thousands died in that cataclysmic war. But there were strong feelings at the time and some factions in Ireland supported the fascists, so bitter feelings brewed in some corners.

 

18 April 2012: Dail Eireann: Written Answer - Question 1044: Gerald Nash TD (Louth, Labour)To ask the Minister for Defence if he will provide an update on his consideration of the issue of pardons for those who deserted the Irish Defence Forces to fight fascism in World War II and who were subsequently subjected to the provisions of the Emergency Powers Order 1945; and if he will make a statement on the matter. [17660/12] REPLY: Alan Shatter T.D. (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael: As the Deputy will appreciate this is a very complicated issue and covers a wider range of individuals than those who deserted to fight with the Allied Forces in World War II. Having regard to the wider dimensions of the issue, including for those who were actually tried by Court Martial for desertion during the Emergency and thereafter, I referred the matter to the Attorney General’s Office for advice. I recently received the advice of the Attorney General in this regard and am considering that advice with a view to determining a way forward on this issue.

 

12 June 2012: Dail Eireann:  Statement of Minister for Defence (Deputy Alan Shatter TD): Following on from a decision made by the Government today, I wish to make an announcement to the House. On behalf of the State, the Government apologises for the manner in which those members of the Defence Forces who left to fight on the allied side during the Second World War, 1939 to 1945, were treated after the war by the State. The Government recognises the value and importance of their military contribution to the allied victory and will introduce legislation to grant a pardon and amnesty to those who absented themselves from the Defence Forces without leave or permission to fight on the allied side. The Government recognises the value and importance to the State of the essential service given by all those who served in the Defence Forces throughout the period of the Second World War. They performed a crucial duty for the State at a time of national emergency and enormous difficulty. The loyalty of the Defence Forces to the State is indispensable. It is essential to the national interest that members of the Defence Forces do not abandon their duties at any time, especially at a time of crisis, and no responsible government could ever depart from this principle. In addressing the question of desertion during the Second World War, the Government acknowledges that the war gave rise to circumstances that were grave and exceptional. Members of the Defence Forces left their posts at that time to fight on the allied side against tyranny and, together with many thousands of other Irish men and women, played an important role in defending freedom and democracy. Those who fought on the allied side also contributed to protecting this State’s sovereignty and independence and our democratic values. When, in August 1945, the Government of the day, through an emergency powers order, addressed the question of members of the Defence Forces who had absented themselves during the Second World War by summarily dismissing them from the Defence Forces and disqualifying them for seven years from holding employment or office remunerated from the State’s Central Fund, individuals were not given a chance to explain their absence. This remained the position following the transposition of the emergency powers order into an Act of the Oireachtas in 1946. No distinction was made between those who fought on the allied side for freedom and democracy and those who absented themselves for other reasons. In the almost 73 years since the outbreak of the Second World War, our understanding of history has matured. We can re-evaluate actions taken long ago, free from the constraints that bound those directly involved and without questioning or revisiting their motivations. It is time for understanding and forgiveness. At a time of greater insight and understanding of the shared history and experiences of Ireland and Britain, it is right that the role played by Irish veterans who fought on the allied side be recognised and the rejection they experienced be understood. To that end, the Government has now resolved to provide a legal mechanism that will provide an amnesty to those who absented themselves from our Defence Forces and fought with the allied forces in the Second World War and to provide a pardon to those who were individually court-martialed. This will be achieved without undermining the general principle regarding desertion. The proposed legislation, which I intend to introduce later this year, will provide that the pardon and amnesty does not give rise to any right or entitlement or to any liability on the part of the State. In extending this amnesty and pardon, the Government would like to emphasise that it does not condone desertion and fully recognises, values and respects the contribution of all those who stood by their post with the Defence Forces and pledged their lives to defend this State’s integrity and sovereignty against any and all aggressors.
 

13 June 2012: Senator Maurice Cummins - Leader of Seanad Eireann - 'The vast majority of Members, if not all, welcomed the pardon for the 5,000 Irish soldiers in question. They were brave Irishmen. The statement made by the Minister for Defence, Deputy Alan Shatter, in that regard is to be welcomed by all'. Defence Forces Personnel: Statement Seanad Eireann 12 June 2012 by the Minister for Justice, Equality and Defence Alan Shatter T .D.

 

19 June 2012: Dail Eireann: Deputy Seán Kyne TD Fine Gael asked the Minister for Defence while recognising the announcement to pardon Irish citizens who left the Irish army to contribute to the Allied war effort, his views on whether similar enhanced recognition is required for all Irish citizens who joined Allied forces during the second World War and helped to safeguard democracy: REPLY: Minister for Defence (Deputy Alan Shatter): I am pleased to acknowledge the vital contribution made by the Irish Citizens who served in the Allied Forces during World War 11. From the remove of 2012 it is very hard to imagine the difficult decisions that people made when they consciously decided to leave Ireland to fight with the allied forces during the course of World War II. Despite the level of anti-British feeling that without doubt existed, over the period of World War II an estimated 60,000 individually motivated citizens from the 26 counties left these shores to serve as volunteers in the British Armed Forces. The value and importance of the contribution of these individuals to the Allied victory is without doubt. The apology that I made last week on behalf of the Government, was specifically related to the manner in which those members of the Defence Forces, who deserted to fight on the Allied side during World War II, were treated after the War by the State. In relation to wider commemoration, the National Day of Commemoration, which is held annually, honours all those Irishmen and Irishwomen who died in past wars or on service with the United Nations. The ceremony is attended by the President, the Taoiseach and representatives of the Government; members of Dáil and Seanad Éireann; the Council of State; the Diplomatic Corps; the Judiciary; Relatives of the 1916 Leaders and Northern Ireland Representatives; The next-of-kin of those who died in past wars or on UN service and a wide cross-section of the community including ex-servicemen’s organizations are also invited to attend. Since 2011, in addition to the main ceremony, a further six events are held in the regions. I am not aware of nor have I any plans for further commemorative events in this regard.

 

25 October 2012: Dail Eireann: Defence Forces Pardons: Deputy Gerald Nash TD (Louth Labour) asked the Minister for Defence the date on which he will publish legislation to give effect to his recent statement to provide a pardon to members of the Defence Forces who deserted to fight for the Allies in World War II; and if he will make a statement on the matter. REPLY: Minister for Defence (Deputy Alan Shatter TD Fine Gael): The position regarding the legislation is that the Bill is currently being drafted and is expected to be published by the end of November.

 

6 November 2012: Dail Eireann:  QUESTION NO: 834 Deputy Terence Flanagan TD Fine Gael: Can the Minister provide an update on when legislation will be produced in relation to the pardons for Irish Soldiers. REPLY: Minister for Defence (Mr. Alan Shatter T.D.): The position is that the legislation to give effect to the Government decision in this matter is currently at an advanced stage of drafting. I expect that it will be published by the end of November.

We would also like to highlight the unanimous support of The Regimental Association of The Ulster Defence Regiment CGC Portadown Branch who have made a representation to An Taoiseach. Mr Billy Hutchinson leader of The Progressive Unionist Party of Northern Ireland and Cllr Michael Copeland MLA of The Ulster Unionist Party have registered their support for the objectives of the Irish Soldiers Pardons Campaign (WW2) with An Taoiseach. Support has also been indicated by The Royal British Legion Birkenhead - Boston & District Branch The Royal British Legion - The King's Regiment Association Liverpool - The Royal Naval Association Birkenhead - The Market Garden Veterans Association Nijmegen - Dr Gerald Morgan Trinity College Dublin - The Merchant Navy Association, Wirral Branch, Birkenhead - Mr Frank Robinson MBE Irish Guards Association Republic of Ireland Branch - Mr Robert Bruce OBE (former Royal Irish Regiment officer) - Mr Tony Boyle MM Lt (Rtd) (AATTV) Australian Special Forces Vietnam - Captain Joe Eastwood Lancashire Fusiliers (Rtd) - Irish Veterans Memorial Project - Mr Sean Crowe T.D. Sinn Fein - Mr Dessie Ellis T.D. Sinn Fein - War Years Remembered Museum - Photographer Michael Stamp - Reform Group Ireland for a New Generation - Mr Malachy Steenson Workers Party of Ireland - Councillor Ray McAdam MCC Fine Gael  - Mr Pat Cox former MEP Presidential Candidate - Mary Davis for President Campaign Team - Cllr Philip Cantwell Trim Town Council and Mr George McIntyre, Chairman Newcastle Branch National Union of Journalists former national president NUJ and Member of Honour NUJ and NUJ Liaison Officer to the Shot at Dawn Pardons Campaign indicated his support. As the pardons issue is believed to be under active consideration by the Irish government any developments that may arise from their deliberations will be posted on the Notices Page of this website: Thanks to all concerned:

Introduction

During World War Two approximately 5000 service personnel from the Irish defence force who (allegedly) deserted and joined the allied war effort were subsequently dismissed on the 8th of August 1945 by Irish government decree en masse, unheard and in absentia following the wars end. It is a basic tenet of Irish constitutional law that citizens have a right to defend themselves and defendants subject to military law, even when on active service, have the same rights to a defence as the Shot at Dawn Campaigns have proved. Emergency Powers (No. 362) Order 1945, introduced by the Irish government to deal with alleged deserters, was a vindictive rough political instrument of injustice, arbitrary in its application and by disregarding their fundamental rights as citizens denied Irish defence force personnel who had allegedly deserted and joined the allied effort in their fight against fascism the right to defend themselves before a military tribunal. Irish defence force (alleged) deserters were treated differently depending on whether they stayed in Ireland or went abroad to fight with the allies. The exclusion of officers from its terms of reference and impact should have raised concerns as to class bias. By August 1945, the de Valera government had constructed a unique political instrument to deal with the military offence of desertion in such a way that the rights of individuals were abrogated for the sake of political expediency. Oscar Traynor then Minister for Defence opined during the passage of the Order through Dail Eireann that these alleged deserters both survivors and those who had lost their lives were worthy of very little consideration, and yet some years after the wars end when SS-Obersturmbannführer (Lieutenant Colonel) Waffen-SS Otto Skorzeny wanted to come to Ireland the same Oscar Traynor had no difficulty in permitting this committed Nazi to legally enter Ireland. Former SS-Obersturmbannführer Otto Skorzeny was the coordinator at the time of ODESSA in Spain and it was he who managed to route Dr Josef Mengele to South America and away from the Nazi Hunters evading justice for his war crimes. In contrast, Irish defence force (alleged) deserters some of whom paid the ultimate price and who now rest in eternal silence on the various battlefields throughout the world are still regarded with dishonour by the Irish government. Post 1945, one of the most repugnant instruments of printed injustice directed at service personnel Emergency Powers (No. 362) Order 1945 was placed on the Irish Statute book, which resulted in the compilation of a list of those who had (allegedly) deserted the Irish defence forces during the Emergency and who had fought for the allies during WW2. This was then distributed on a confidential basis by the Irish government to all state authorities barring their employment and various entitlements from state sources for seven years. Surely in this new dawn of Irish-Anglo relationships an Irish Government has the political capacity, wisdom and compassion to initiate a mechanism which will in so far as practicable re-instate those Irish defence force (alleged) deserters many of whom went to fight on behalf of the free world during world war two.....their memory deserves that at least…...or is it the case that Oscar Traynor’s Words of Condemnation still apply and that these Irish defence force (alleged) deserters are not worthy of consideration ?

IRA Prisoners -'Tintown' Curragh Internment Camp 1939-45:

In contrast to the harsh treatment meted out to defence force (alleged) deserters who were barred inter-alia from working in state companies for 7 years pursuant to Emergency Powers Order 362, the following are interesting examples of how the de Valera government dealth with former IRA internees post war:

Máirtín Ó Cadhain who became an IRA Recruiting Officer in Dublin and is said to have recruited Brendan Behan, was appointed to the IRA Army Council in 1938 and later interned in the Curragh Internment Camp from 1940-1945. Released in June 1945 many former IRA Internees from the Curragh Internment Camp had the opportunity of seeking work in Bord Na Mona, the ESB and other Irish semi state organisations. Mr Ó Cadhain who described himself as a "civil servant" was subsequently employed as a translator on the staff of Leinster House/Dail Eireann from 1949 to 1956 when he became a lecturer in Modern Irish in Trinity College Dublin.

Seamus O'Donovan was a leading Republican who collaborated with the Nazis during world war two. Mr O'Donovan worked with the Irish Electricity Supply Board and despite his activity , which included three years imprisonment, remained with the state run ESB until his retirement in 1961.

Official Ireland - World War Two - Nazis and their Collaborators:

Suspect Irish Nationals in Germany

Helmut Clissmann former Abwehr Agent - Dublin 1997

De Valera Helped Nazi War Criminal

The Shamrock and the Swastika

Ireland 'Welcomed Hitler's Henchmen'

History Today - DeValera's Diplomatic Neutrality by Brian Girvin - March 2006

How Devs Ireland Became a Safe Haven for Fugitive Nazis - January 2007

Furore over Library's Gift From Nazi Collaborator - Sunday Independent - 18 December 2011 - Dublin

Have We Finally Figured Out Who The Real Traitors Were? - Herald Article by Gerry Gregg - 10 May 2013 - Dublin.

RTE TV1 Hidden History - Ireland's Nazis - Youtube Videos:

Cathal O'Shannon showed how official Ireland turned a blind eye as Nazis and their collaborators who came to Ireland after world war two made a new life for themselves. Prior to the transmission of the programme Mrs Elizabeth Clissmann made a complaint about this documentary which was upheld in June 2007 by the Broadcasting Complaints Commission in relation to impartiality. Helmut Clissmann was assisted by Sean McBride, then Minister for External affairs to travel to Ireland in June 1948, despite the fact that British intelligence did not want him to leave Germany, indeed they also advised that Helmut Clissmann should not have been de-Nazified into category V which was the category of least politically involved Nazis. Germans placed in that category were allowed to leave Germany provided their applications came within the approved category of travel. See also British Foreign Office File Helmut Clissmann 11 June 1948 pdf ; Helmut Clissmann Recategorisation of Status 13 July 1948 pdf.  Helmut Clissman joined the Nazi Party on the 1 May 1934 and during world war two was inter-alia attached to the Brandenburg Regiment. The Clissman's are also known to have worked with SS-Brigadeführer Edmund Vessenmeyer. While appointed German Plenipotentiary delegate in Hungary, Vessenmeyer reported in a telegram dated 11 July 1944 to the German Foreign Ministry that 437,402 Jews have been deported - Auschwitz was their final destination - see Copy Telegram.

Nazi Protocol of January 20, 1942 - Final Solution on the Jewish Question - Irish Citizens:

On the 20 January 1942 at the Berlin-Wannsee Conference High Third Reich officials including the Chief of the Sicherheitspolizei Reinhard Heydrich and Adolf Eichmann Reichssicherhauptamt (RHSA), took the executive decisions for conducting the Final Solution of the Jewish Question - Page 6 of this document contains a precise number of Jews scheduled for extermination with a breakdown of the specific regions involved. Although the overwhelming majority lived in Eastern Europe, Ireland's Jewish population calculated at 4000 were listed. The accuracy of the numbers shown in this document would indicate that members of the Nazi party and their collaborators based in each country including Ireland before the War are responsible for its compilation and that it was also the intention of the Nazis to exterminate Irish citizens. See also Wansee Protocol English Translation : List of Nazi Party Members in Ireland Prewar : Nazis Were Preparing to Invade Ireland :

Families of Service Personnel:
Documents in the National Archives at Kew in London contain correspondence between officials in Dublin, the British War Office and the Admiralty, which indicate that during the Emergency Period the Irish government had demanded that family allowances that would have been paid to Irish personnel serving in the British forces if their children had not been committed should be handed over to the industrial schools. Britain initially refused but the Irish government were persistent and Frederick Boland, a senior official who worked closely with de Valera, wrote increasingly trenchant letters. In one he couples the demand with the comment: "There is the further incidental consideration that in not a few of these cases the lack of parental control to which the committal of the children is due is attributable to the absence of the fathers with your forces." By the end of the war Britain had capitulated and paid up. It then became clear that the Irish government had all the servicemen's numbers and knew who was serving with the British forces at the time which also suggests that if Dublin could supply the roll numbers of the troops involved - rather than the other way round - there was surveillance of (alleged) deserters families during the emergency.

Note:
Military law is an essential part of any military structure and the offence of desertion can have a detrimental impact on military discipline. Consequently the concern of the Irish Soldiers Pardons Campaign (WW2) relates to the application of legislation in an arbitrary manner by the de Valera government to punish Irish defence force (alleged) deserters en masse, unheard and in absentia rather than seeking to have such breaches of military law adjudicated within the military court system of the Irish defence forces at the time. Indeed some (alleged) deserters who lost their lives were still listed as deserters post mortem effectively spitting on these soldiers graves thereby stigmatising their families in perpetuity.

Irish Constitution - Re: The Administration of Justice:
The law on the administration of justice pursuant to article 34.1 of the Irish Constitution holds that condemning an accused unheard is a denial of natural justice. Notwithstanding other sections on individual rights and the separation of powers the convening of a defence force military tribunal post war to deal with any allegations of desertion would have been lawful and consistent with the judicial function and the administration of justice as determined by this article. In contrast, Emergency Powers Order 362 introduced by the de Valera government convicted and punished accused Irish defence force personnel unheard denying them natural justice and is a blatant breach of the constitution. Pursuant to the separation of powers the courts are endowed with the judicial function. While politicians can make laws the courts are tasked with the administration of justice in conformance with these laws and in accordance with the constitution. It should have been reasonably foreseeable to the de Valera government that the wide distribution on a confidential basis of a list which described 4,983 Irish defence force personnel as dismissed for desertion and circulated to all civil service departments and state run services etc, would mean it was inevitable this document would permeate into the public domain at some time in the future thereby impacting on the privacy of those named demonstrating a total disregard and contempt for the personal rights of these Irish defence force personnel and their families as guaranteed under the Irish constitution pursuant to Article 40.3. Effectively the de Valera government breached inter-alia the separation of powers pursuant to the constitution in that EPO 362 encroached on the exercise of the judicial function which is the sole task of the judiciary as proscribed in the constitution. There is also a concern that inter-alia article 15.4.1 may have also been breached in that the Oireachtas being the Parliament of the State is constitutionally bound to protect, by its laws, its citizens from unjust attack, and such laws must be exercised within those limitations. The detrimental effect of Emergency Powers Order 362 as it was applied post war by the de Valera government relating to defence force personnel alleged to be deserters (including dismissing those who were killed in action for alleged desertion) is such that it is likely to have been repugnant to the constitution at the time of its introduction. Taking into account the vociferous Fine Gael opposition to the introduction of EPO 362 which raised serious concerns as to its legality it is incredible that concerned legal and constitutional authorities never sought to challenge and test the consistency of this order with the constitution which could have avoided any potential abuse of process. (Mr Justice Kevin Dixon was Attorney General to the Irish government in 1945 and would have been responsible for advising on the legality of Emergency Powers Order 362 prior to its enactment by de Valera).

The Constitution of Ireland - The Emergency 1939-1946:

The 1937 Irish Constitution made provision in Article 28.3.3 for the declarations of emergency by both Houses of the Oireachtas and to provide for constitutional immunity for legislation enacted under cover of these declarations. Article 28.3.3 of the Constitution provides that: Nothing in this Constitution other than Article 15.2.2 shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purported to be done in time of war or armed rebellion. In this sub-section “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and “time of war or armed rebellion” includes such time after the termination of any war, or of any armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.

The first set of resolutions were passed on 2 September 1939 immediately after the passage of the First Amendment of the Constitution Act 1939. On the following day, the Emergency Powers Act 1939 was duly enacted under cover of the Article 28.3.3 resolutions. This comprehensive item of legislation, which was expressed to be for the purpose of “securing public safety and the preservation of the State in time of war”, continued in force until 1946 when it expired. Accordingly, by the 1^st April 1946 there was no longer any emergency legislation in force which depended for constitutional survival on the 1939 emergency resolutions. Remarkably, however, the Article 28.3.3 resolutions themselves were permitted to continue in force despite the end of World War II and despite occasional protests at the irrationality of keeping the State in a condition of ‘Emergency’ unrescinded until 1976. Despite the absurdity of this state of affairs, the artificial maintenance of this declaration of emergency had no real practical consequences as the last emergency legislation had expired on the 1^st April 1946.

It is instructive to note the submission on the 31 August 1976 by An Taoiseach (Prime Minister) Liam Cosgrave TD to Dail Eireann as he moved the resolution to introduce Emergency Powers Bill 1976 and the Criminal Law Bill 1976, which was later passed by the Irish Supreme Court In Re Art 26 and the Emergency Powers Bill 1976 recorded at 1977 Irish Reports 159. Mr Cosgrave stated inter-alia 'there have been comments and headlines which suggested that the Oireachtas was to be asked to suspend the Constitution. Deputies will appreciate, I am sure, that this is not so. If it were true, the Constitution would have been suspended since 1939. The reality is that it has not been so suspended by adoption of the present resolution. The protection from Constitutional challenge which would be afforded would extend solely to laws expressed to be for the purpose of securing public safety and the preservation of the state'. The Irish Supreme Court decision in Re Art 26 and the Emergency Powers Bill 1976 is the legal authority which establishes that an Emergency Powers Bill leaves general constitutional rights intact. Interestingly while the court let the 1976 resolutions pass it also also reserved its position in regard to reviewing future resolutions which might be based on a spurious "Emergency". Notwithstanding other imperatives with regard to human rights law which are enshrined in the Irish constitution, the law on universal rights has been progressively developed by Irish and other international legal authorities since 1940. See also; Law in the Republic of Ireland.

Dail Debates 10 December 1948 - Review of EPO 362 - Desertion during the Emergency:

The issue of the effects of Emergency Powers Order 362 of 1945 upon certain categories of defence force personnel punished as deserters in absentia was of concern to the new coalition government as Minister for Defence Dr O'Higgins opined in the Dail Debates of December 1948: "we have inflicted enough punishment; we have made it clear to everybody in this generation and in the future that the crime committed by these men is a serious crime and that we will do our utmost to prevent its repetition; but that we will not, in addition to penalising the soldier, continue to penalise the soldier's family". The blacklist produced by the previous de Valera government post war lists 4983 defence force personnel dismissed from the defence forces for desertion. This confidential document also includes a reference to the army number, name, last recorded address, date of birth, declared occupation prior to enlistment in the defence forces, and the date of dismissal from the defence forces of each alleged deserter.

Dr O’Higgins Minister For Defence in the coalition Government of 1948 during the second stage of Defence Forces (Temporary Provisions) No 2 Bill, 1948 stated: "that the number of people that all regard in the fullest sense as deserters, those men who left the colours and went elsewhere, is 3756. The total number of deserters, under the legal interpretation of the regulation as it stands, is 4861. 756 were regular army soldiers who had deserted. 2518 were men who had enlisted for the emergency. 1313 were reservists who had been called up for permanent service. The reservists mentioned, that is 1313, include men who failed to respond to the initial call, who were subsequently released and who failed to report at a further calling up". "The trouble is, by administrative investigation, to be able to segregate the sheep from the goats. They all say they did not get the calling up notice. That is not true in all cases". Minister O’Higgins to Oscar Traynor TD: "These people to whom the Deputy is referring at the moment are people who appeared to be Bona Fide as a result of a process of investigation but who did not get a call up notice. Legally they were deserters but were not with the colours and left".

The list of (alleged) deserters pursuant to Emergency Powers Order 362 of 1945 which was disseminated confidentially by the de Valera government totals 4983. The figures recorded in the Dail Debates for December 1948 following an investigation are totally inconsistent with the numbers published in the secret government blacklist of 1945. Taking into account the clarification in 1948 of these figures and the subsequent investigation by the Minister for Defence to establish the bona fides as to whether some people had received their call up papers or not, it is now apparent that there are several hundred individuals listed as deserters who should not have been listed in the first place. Indeed the whole issue of the military offence of desertion should have been left to the defence forces to sort out. A comparison with the other figures indicates there are serious discrepancies if it was accepted that many of those 1313 reservists did not get their call up papers as they had already gone to join the allied effort and had not been in the country when these call up papers were issued to their home address. It is also apparent that the Minister for Defence had accepted that argument and apparently Oscar Traynor in opposition accepted that too. Effectively the combination of figures promulgated re deserters in the Dail Debate of October 1945 Motion to Annul is in contrast to the figures recorded in the Dail Debates in December 1948 which indicate the probability according to the criteria then in force that hundreds of defence force personnel were erroneously convicted of an offence of desertion in absentia which they may or may not have committed raising a reasonable doubt as to the probity of the actual numbers who may have deserted. The fact that this list is now in the public domain compounds that issue and subjects the few survivors left and the families to further hurt and public opprobrium. 4983 defence force personnel have been named and shamed as deserters in this document and it is apparent from the 1948 Dail Debate's that this figure is incorrect which raises other issues relating to legality.

Launched on Tuesday 8 November 2011 by An Taoiseach Mr Enda Kenny TD a book The Irish Defence Forces 1940-1949 The Chief of Staff's Reports records "In all some 4600 N.C.Os. and men were dismissed under the terms of the Order by 8th, August 1945 (date of Order) and a further 150 with effect from various dates since". (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), p 478 , published by the Irish Manuscripts Commission. 4983 defence force personnel are listed as dismissed for desertion in the blacklist disseminated by the Irish government post war, which is in contrast with the total figure of 4750 dismissed for desertion recorded in the Chief of Staff's Reports at the time.

Emergency Period 1939-46 - Strength of the Irish Army - Official figures:
On the outbreak of World War II, in September 1939, the Irish Defence Forces mobilised at a strength of less than 20,000. A recruiting campaign began and an effective fighting force was quickly developed. In April/May 1941 the strength of the Emergency Army reached a high point of almost 41,000 regular army personnel, and in June 1943 the Local Defence Force (LDF) reached a strength of 106,000. In the 'Emergence of Modern Ireland 1850-1966', Pub in 1986 by Folens, the author, Patricia Bourdon states at page 170 that 'by 1942 there were 40,000 in the defence forces, a further 98,000 in the Part-Time Local Defence forces and 100,000 in the Local Security Force of older men who performed auxiliary police duties' .

On the 1 June 1940 the front page of the Irish Times carried a half page advertisement reading: 'DEFEND THE NATION. IRELAND WANTS MEN! She wants them at once! She wants you ALL!' Volunteers were to report to Garda stations from the 2 June and ask for a National Service Enrolment form. Minister for Defence Oscar Traynor, in a radio broadcast on the night of 31 May, appealed for recruits, explaining in his conclusion that 'there is little to say except that the country's security is at stake. The manhood of Ireland must make it secure to the very limit of the capacity of each and all of us' (Irish Times, 1 June 1940). 'From the inauguration of the National Recruiting Campaign on Sunday, June 2 1940, the response was remarkable 24,846 men offered their services during the five week period June 5th to July 12th' (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), p35, published by the Irish Manuscripts Commission.

Terms of Enlistment - Irish Defence Forces - 1 June 1940:

Men could either enlist in the Regular Army for the normal period of 2 years in Army Service and 10 years on the reserve; or enlist in the Volunteer Force for a minimum period of 5 years with the first 3 months spent in Army Service and during the balance of the 5 years were liable to be called out to serve with the forces; or enlist in the Regular Army for the duration 'only' of the Emergency; or men could enlist in the Construction Corps for a period of 12 months with the option on discharge of joining the Regular Army. A Local Security Force was also organised for those who could not join the Defence Forces, but who in their spare time wanted to assist in the security of their local area.

On the 1 June 1940, in a radio appeal to the nation, Oscar Traynor TD Minister for Defence, stated "Now I would like to make an appeal to parents. Some of you have boys naturally imbued with a martial spirit, and who have given expression to that spirit by joining forces which are not controlled by the Government. Some of these young fellows have joined without realising that they were doing anything wrong. Their action was, I have no doubt, inspired by patriotic motives, and in the light of representations made to them they probably felt that they could serve their country that way. " That they have been misled and are acting entirely illegally has probably never been pointed out to them, and they, therefore do not see the error of their ways". Will you tell these boys of yours that their duty is to the elected Government of this country? Persuade them to give up their unlawful associations and to offer allegiance to the only authority that has the god-given right to speak and act on behalf of the nation"

Traynor's recognition that young Irishmen were volunteering for UK forces because of a feeling that this was the best way to protect Eire in June 1940 as German forces reached the channel ports in their advance across Europe is succinct. However his reference to the illegality of enlisting in UK forces is arguably moot as the Irish Government was from the outset of the second world war cooperating with the British as a precautionary measure against the threat of a German invasion. Interestingly while the Minister for Defence was praising young men who saw it their duty to defend the state by fighting in UK forces he was also seeking to persuade these men to desert and return to Eire to defend the state. For the record, Irishmen in UK Forces along with thousands of other service personnel who fought and died in the Battle of Britain and thereafter on the various battlefields of world war two were also the guarantors of Irish neutrality.

Causes for Paucity of Recruiting: The Irish Defence Forces : 1 April 1941 - 31 March 1942:

'There are several reasons which explain the low level of recruiting throughout the year. The principal of these are thought to be:-

1.The fact that the remuneration offered to a soldier is so much lower than that in other occupations and the knowledge that if he got married while in the Army he would have to support his wife for an indefinite period on two shillings a day;

2. The fact that married men were not accepted except for certain special services;

3. The fact that there are so many openings for highly remunerative employment in England;

4. The widespread feeling in the country that there is no immediate danger of invasion;

5. The increase of rural employment due to the turf cutting campaign and to the increase in tillage;

6. The widespread belief that we have insufficient arms to equip a larger Army.

It may be said that (4) above has largely removed the patriotic urge to join the Army, which undoubtedly existed in June, 1940, and young men of adventurous spirit may thus be tempted to join the British Army in the hope they may see active service, while those who have financial commitments seek civilian employment in England at good wages. Men who were already married were debarred from joining, and it is therefore, evident that any recruiting campaigns under the circumstances which existed during the period under review were severally handicapped, and the response was bound to be poor' (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), p105, published by the Irish Manuscripts Commission

Morale: The Irish Defence Forces : 1 April 1941 - 31 March 1942:

'The discontent which normally arises in peacetime is largely due to the monotony of garrison duties. The extensive field exercises carried out during last summer were a powerful factor at combating this evil and the organisation of the Divisions greatly assisted in putting the Army on an active service basis in so far as the soldiers lives and duties are concerned. The factors which still tend to lower the morale of the Defence Forces are largely outside Army control. The most important are considered to be:

(a) Lack of equipment;

(b) Inadequate allowances for dependants;

(c) Boredom due to waiting for something to happen coupled with the knowledge that a more adventurous service can be found abroad.

It is thought that the high rate of desertion was largely due to these causes' (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), p156, published by the Irish Manuscripts Commission.

Conclusion Extract :  The Irish Defence Forces : 18 April 1945:

In relation to those who had initially volunteered to defend the state, the statement by the Chief of Staff on the 18 of April 1945 is informative. He said  'I think it is safe to say that every conceivable method of attracting recruits has been tried, yet the only period when men came forward freely was when the danger appeared most acute and when the likelihood of attack was most imminent'  (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), p411, published by the Irish Manuscripts Commission. Coincidentally in May 1940 the Irish Department of External Affairs destroyed many papers relating to Irish-German relations, fearing that Ireland would soon be invaded by Germany. Interestingly the rate of desertion from the Irish defence forces surged post the Battle of Britain in 1940 when the danger of a German invasion ceased to be viewed as imminent leading to the reasonable conclusion that volunteers who had a answered the initial appeal by the Irish government and enlisted in the Irish defence forces during world war two did so on the basis of a threat of an imminent Nazi invasion in order to defend the state which also includes Irish defence force personnel whose discharge through the normal channels was blocked for the duration of the Emergency and who later joined UK forces to fight the axis powers and who were dismissed en masse, unheard and in absentia for (alleged) desertion by the de Valera government pursuant to Emergency Powers Order 362.

Citizens of Eire - Postal orders to Southern Ireland from the UK - 1939-44:

On the 7 February 1945, the British Postmaster-General (Captain Cruickshank) indicated to the House Of Commons that a total of £22,830,000 was paid through postal and money orders to Eire during the years 1939–1944. The following indicates the sums sent back to Ireland in each of these years by Irish citizens working in the UK which also includes remittances from those who had joined British Forces during WW2:

During the Emergency, all postal/money orders from the UK would have been routed through the General Post Office in Dublin.  Allowances and mail to families from Irish defence force alleged deserters who were serving in UK forces would also have been monitored by G.2 Branch-Irish Army Intelligence through the GPO and that information shared with British security services. It could be argued that remittances back to Ireland helped families to survive the rigours of the Emergency years and were a much needed boost to a stagnant Irish economy. With the termination of the war in Europe some of the activities with regard to Postal and Telegraph Censorship involving the security sections of G.2 Branch in the General Post Office  were discontinued on the 12 May 1945. In December 1945 the unemployment figure in Ireland stood at over 70000 and was expected to rise rapidly with the return of war workers and demobbed soldiers from Britain. That did not occur, the reverse was the case, as hoards of Irish workers took the emigration route to the major industrial cities of England. The safety valve of emigration to the UK was arguably a stabilising factor in a post war Ireland marked by high unemployment, growing emigration and a continuous balance of payments deficits all of which led to widespread dissatisfaction. (Michael O'Sullivan, 'Sean Lemass A Biography', Pub 1994, P102, Blackwater Press, Dublin.)

Southern Irishmen in UK Forces - 3 September 1939 - August 1945:

The only figures which can be given in the case of the Royal Navy are based on information supplied to UK authorities as to the address at the time of entry into the Service with UK Forces. Those for the British Army and the Royal Air Force are based on information supplied as to place of birth, and in the case of the Army some of the men and women may have enlisted before the war. A great number of them would undoubtedly have given false names and addresses, particularly those who were deserters from the Irish Army, and others would give accommodation addresses, and they would appear to be recruited from Northern Ireland instead of from the South. It was thought that the only real test in order to ascertain as to who was who, would be the addresses which personnel gave when they first enlisted for their next of kin in case they fell or were disabled. Those would probably be quite genuine, because they would hardly give false addresses when they would want their own people to benefit. On this basis the number of men and women who joined His Majesty's Imperial Forces from Southern Ireland from 3 September 1939, to August, 1945, under the headings of the Royal Navy, British Army and Royal Air Force which includes former defence force personnel are as follows:

As regards such enlistments before 1 January 1943, no distinction was drawn in the records between Northern Ireland and Eire. These statistics also do not include enlistments in Great Britain of men and women of Eire origin as to which no figures are available. (Michael Kennedy and Victor Laing (eds.), The Irish Defence Forces 1940- 1949: The Chief of Staff’s Reports (Dublin, 2011), pxxxiii, published by the Irish Manuscripts Commission, estimates that during the second world war approximately 150000 Irish citizens joined British forces, a statistic which is at odds with the figures in official UK records. On the 19 March 1946 Admiral of the Fleet William Henry Dudley Boyle, 12th Earl of Cork, 12th Earl of Orrery stated in the House of Lords "I am sure all your Lordships will agree that this country owes those men and women a great debt which must be honourably discharged, and I have not the least doubt that the Government intend to discharge it honourably, because their views on that point were given only last month in another place, where it was said that His Majesty's Government took the view that when men had fought with us and stood by us it was against our religion to let them down".

Pardons - Courts-Martial - Amnesty - Mutiny - Rehabilitation of Memory:

New Zealand:

In September 2000 the New Zealand parliament passed into law the Pardon for Soldiers of the Great War Act 2000 allowing for pardons for 5 New Zealand soldiers executed for alleged military offences during WW1. The NZ Act does not overturn the original verdicts but attempts, in a unique fashion, to redress the severity of punishment exacted and the disgrace felt by the soldiers and their families World War One Pardoned Soldiers Recognised - Rt Hon Helen Clark.

United Kingdom:

In November 2006 Irish World War One deserters were pardoned following the introduction of British legislation, and but for the input of Anglo-Irish division department of foreign affairs and the Shot at Dawn Campaign Irl effort, the support from members of the Oireachtas in Ireland, support from members of the House of Lords and House Commons in the UK, the essential support of various military connections here in Ireland and abroad, the constructive analysis in books and articles written by journalists and authors world wide including the production of various television documentaries, and importantly, both the British and Irish government’s priorities were focused at the time on progressing the Northern Ireland peace process to a successful conclusion, there would have been no pardons granted in November 2006 for all 306 servicemen executed for military offences during world war one.

Ireland:

Prior to de Valera signing Emergency Powers Order 362 which dismissed defence force personnel en masse, unheard and in absentia for the (alleged) military offence of desertion, defence force courts-martial were regularly convened pursuant to the Defence Force (Temporary Provisions) Act 1923 and its Successor Defence Force Acts to hear cases relating to breaches of military law during the Emergency period. It is therefore worth noting the exemplary conduct of defence force military tribunal's as they judiciously dealth with the issue of desertion and absence with out leave from the Irish defence forces prior to the introduction of Emergency Powers Order 362 on the 8 August 1945: Private Patrick Shannon (aged 25 years) who fought with the British Army in the North Africa and Italian campaigns, and Private Patrick Bishop Kehoe (aged 22 years) aka Flight Sergeant Patrick Bishop Kehoe RAF, a former POW in Germany, were tried by court-martial convened in Collins Barracks, Dublin, in June 1945. Shannon and Kehoe were found guilty of the military offence of desertion and sentenced to 156 day's detention. After several days the sentence was commuted to discharge from the Irish defence forces and the men were released. (Note: A conviction for desertion by a legally convened court-martial is recorded against Private Kehoe and Private Shannon in Irish defence force records). Private Patrick Mortimer a paratrooper with the Parachute Regiment who was involved in the D-Day landings and in various battles across Germany, was tried on the 21 June 1945 by court-martial convened in Portobello Barracks, Dublin. Mortimer was found guilty of the military offence of desertion, sentenced to be discharged from the Irish defence forces and released from custody. Private Mortimer (aged 22 years) subsequently rejoined his British Army unit in the UK which was then on standby to be drafted to the Far East for the war against Japan. (Note: A conviction for desertion by a legally convened defence force court-martial is recorded against Private Mortimer in Irish defence force records). Trooper 'Paddy' Hember, from Wexford, was one of the North Irish Horse’s many characters. He had served with the Irish Army but went AWOL to join the British Army. On the 10 April 1943 during the battle for the Oued Zarga mountains in Tunisia, Trooper Hember was wounded so badly that his right arm was shot round the back of his neck and hung down over his left pocket; he was also wounded in the left leg. Luckily there was a lull in the proceedings when he reached the casualty station and, instead of amputation, the Doctor tried to save his arm with a complicated splint. Hember was sent back to the UK after various efforts to mend his arm had failed. Amputation was the final decision but there was considerable delay before this could be performed. When at last he was called to Roehampton he refused to go as he was beginning to regain some use in his arm which, eventually became full use. But his troubles were not over; returning to Dublin, he was court-martialled for desertion from the Irish Army. However, he argued successfully that he had only been absent with out leave over an extended period. This was accepted and his punishment was dismissal from the service.

The Irish Shot at Dawn - World War 1:

The Irish government report into the Irish Shot at Dawn submitted to the British government in October 2004 was very critical of the system of military justice conducted by the British Army during WW1 and stated inter-alia; “The courts-martial files indicate a trend among the accused of a lack of even a rudimentary understanding of their rights under military law. The absence of a “prisoner’s friend” in the majority of cases, to safeguard those rights, further undermines the assertion that those facing courts-martial were afforded their legally entitled rights”. The Irish government concluded “It is our belief that the above points, singly or cumulatively, represent sufficient grounds to merit the initiation of a process by the British Government through which retrospective pardons can be granted to the soldiers concerned”. In contrast Irish defence person personnel dismissed for the military offence of desertion on the 8 August 1945 pursuant to Emergency Powers Order 362 were never given the opportunity of a court-martial or a hearing before a military tribunal.....indeed they were deemed to be Not Worthy of Consideration by the de Valera government.

The Connaught Rangers Mutiny - 1920:

In 1922 the Cosgrave Government urged the British government to pardon the Connaught Ranger Mutineers but was only able to secure their release without a formal British pardon; see Connaught Rangers Amnesty 3 January 1923. Other evidence suggests that Irish born British soldiers who deserted and joined the IRA to fight against the British in Ireland during that period were also amnestied. Given the political dimension of that mutiny an Irish government would have been keen to remove the stain of the convictions by whatever means it considered to be within its powers. Consequently in 1936 the De Valera Government introduced the Connaught Rangers Pensions Act 1936 effectively exonerating those involved.

The Irish 'Army Mutiny' - 1924:

The Irish 'Army Mutiny' begun on the 6 March 1924 and led by two Irish Army officers, Major General Liam Tobin and Colonel Charles Dalton sent an ultimatum to the Cosgrave Government outlining their grievances which demanded the Free State Government meet with them to discuss their interpretation of the Treaty that the army council be removed and army demobilisation be suspended. They also stated that if the government did not meet their demands they would 'take such action that we make clear to the Irish people that we are not renegades or traitors to the ideals that induced them to accept the Treaty'; see copy Letter from Tobin & Dalton to Cosgrave - March 1924. During March 1924, 50 Free State army officers absconded with war materials including Lewis guns, grenades and revolvers from various depot ammunition stores. An estimated 100 soldiers were involved although Pathe News records 3000 Rebellious Troops in the mutiny. Having accepted the resignation of two ministers and several Dail representatives the government managed to end the mutiny with a compromise agreement which promised an enquiry into army administration, a review of army personnel, no victimisation and a guarantee that an army pension scheme would be devised, see also Irish Times Archives March 10th, 1924. As all officers and men of the Irish Army were persons subject to Irish military law pursuant to the provisions of the Defence Forces (Temporary Provisions) Act, 1923 then in force, the ultimatum on the 6 March 1924 by these Irish army officers and their followers was an effective challenge to the democratic foundations of the Free State and their frank expression of military discontent was mutiny as proscribed by military law which required adjudication according to military law. Tobin's leading supporters were arrested (19 March) at Devlin's public house, 68 Parnell St., Dublin and dismissed rather than court-martialled. He resigned his commission on 21 March. Interestingly no court-martial and no prosecution for mutiny was proffered against any of those involved. In December 1924 the Government stated " It has been found necessary to dismiss from the Army 25 non-commissioned officers and 16 men. Two Majors have been suspended and invited to show cause why their commissions should not be cancelled. The services of a small number of civil servants have also been terminated. For some months past efforts have been made by and on behalf of certain ex-officers who retired from the Army in connection with the Mutiny in March last to suborn from their allegiance members of the Army and other State Services with a view to renewing the attempt to subject the Government to pressure of an unconstitutional nature. In each case in which the action announced above has been decided on the Executive Council had reason to beleive that the person dismissed was in close and active association with such conspiracy". Years later former Major General Tobin and leader of the 1924 Mutiny joined De Valera's Anti-Treaty Fianna Fáil Party and served as Superintendent of the Oireachtas/Irish Dáil between 11 November 1940 until his retirement on the 31 December 1959. Following his death on the 30 April 1963 Tobin was accorded full Irish defence force military honours and buried in Glasnevin Cemetery Dublin.

Amnesty for IRA Men - 1932:

Members of the IRA benefited from an amnesty issued by Éamon de Valera on his accession to power in 1932, and after that date they could openly admit their part in assassinating O'Higgins without fear of being prosecuted.

France:

The French Government in 1971 proclaimed a General Amnesty to surviving members of the Bretonische Waffenverbande der SS - Bezen Perrot who had been tried, convicted and sentenced to death in absentia by the Cours de Justice in Rennes 1944-45 for war crimes. In 1951, these powers were transferred to the Tribunal Permanent des Forces Armées in Paris which was charged thereafter with reviewing cases. Interestingly it was the Irish government post war who permitted the leaders of Bretonische Waffenverbande der SS - Bezen Perrot to stay in Ireland thus evading justice in France for their war crimes - De Valera helped Nazi War Criminal, in contrast, Irish defence force personnel dismissed in absentia unheard for the (alleged) offence of desertion who had fought with UK forces against the Nazi's received no amnesty or pardon from the de Valera government, Furore over Library's Gift From Nazi Collaborator.

Austria:

The Austrian Government introduced legislation in 2009 to rehabilitate the memory of deserters of Austrian nationality who had deserted the German Army in 1944 some of whom then joined the British Army and fought against the Nazi regime - Austria's Wehrmacht Deserters.

Germany:

The German Parliament passed a law in 2009 clearing the names of those Branded Traitors by the Nazis in World War Two - Germany To Pardon Last Troops Hitler Executed - New German Law Clears All Its WW2 Nazi "Traitors" - Germany Clears Nazi-Era 'Traitors' - Nazi Deserters Pardoned.

United States of America:

It has been the practice of American Presidents to periodically issue proclamations of pardon, commutation or amnesty to service personnel who had been in breach of military law. President Harry Truman issued four presidential proclamations granting blanket pardons to certain categories of military offenders post world war two. On December 24, 1945, he signed Proclamation 2676, granting pardons to World War II veterans who had been convicted of violating federal laws prior to their military service. On December 23, 1947, President Truman issued Proclamation 2762, pardoning 1,523 listed persons who had been convicted of violating the Selective Training and Service Act of 1940. On December 24, 1952, he signed Proclamation 3000, granting pardons to Korean War veterans who had been convicted of violating federal laws prior to their military service. On that same day, President Truman signed Proclamation 3001, granting amnesty and pardon to servicemen who had been convicted of desertion from the armed forces between the end of World War II and the beginning of the Korean War. (On 31 December 1946 the United States declared a cessation of World War II hostilities although active hostilities had already been terminated on 14 August 1945. The state of war between the United States and Government of Germany declared by joint resolution of Congress approved on the 11 December 1941 was terminated on the 19 October 1951. The last of the states of war existing at that time between the United States and other countries was not formally and legally terminated until the 28 April 1952, and the United States was not involved in active hostilities from the 14 August 1945 until the 25 June 1950, the date of the Korean invasion. On September 8, 1951, President Truman proclaimed that the national emergencies declared to exist by the proclamations of September 8, 1939, and May 27, 1941, terminated this day upon the entry into force of the Treaty of Peace with Japan at San Francisco). On the 16 September 1974 President Gerald Ford announced a Clemency Programme for the return of Vietnam era draft evaders and military deserters. President Clinton granted pardons during his time in office. Note: A pardon of a Military offence will not change the status of a Military discharge, that may only be accomplished by the US Military authorities.

Cuba:

Cuban President Raul Castro has unveiled plans to pardon nearly 3,000 prisoners for "humanitarian reasons," a group amnesty of unprecedented size.

Switzerland:

More than 100 people, judged to be criminals because they helped Jews escape Nazi persecution during the Second World War, have had their names cleared by a Swiss commission. Some were jailed or fined, and many lost jobs under Swiss laws on neutrality. The commission was set up in 2004 after a new law on “rehabilitation” took effect. The law allowed for posthumous recognition of people unfairly criminalised because they smuggled Jewish refugees across borders between 1938 and 1945. The commission, due to end in 2011, said its aim was to repair the damage caused by a “grave injustice” of history. Irish Examiner - 29 December 2011
 

Government Action on Desertion - Post World War Two - A Comparative View:

United Kingdom:

In the UK a moratorium was in place up to the 31 March 1947 to permit those who were alleged to be deserters to surrender themselves. Following a court-martial convened pursuant to British military law the following are some some examples of sentences awarded by the military court: Sentences of 21 months detention—suspended after four months had been served; Sentences of two years detention—suspended after six months; Sentences of one years detention—suspended after three months. It was rare indeed for anyone who surrendered to the offer of the British government to serve more than six months. With regard to those deserters who surrendered or were apprehended outside the terms of that offer after 31 March 1947, not only could they earn the one-third remission for good conduct, but their sentences were subject to review every six months and an account was taken of any factor overlooked before the courts-martial. Many of the cases were dealt with summarily by commanding officers within the limited power of punishments they possessed. "We shall endeavour to try the man who surrenders now with justice and humanity. As I was saying, if any case is brought to my notice or that of my Service colleagues where it is felt that justice has not been done, we shall do our utmost to review the matter. We cannot accept that the deserter should say once again, I am to be the judge. The compassionate circumstances in my case are such that I should receive no penalty. If he really feels that, and is anxious to come back, will he not submit his case to those authorities who have shown they are prepared to weigh his claims with justice? Mr. George Bernard Shaw has said in some context: "Anger is a bad counsel: cast out anger. Pity is sometimes a worse: cast out pity; But do not cast out mercy. Remember only that justice comes first. It is in that spirit that we approach this problem. Under Secretary of State for War Mr Michael Stewart". Queen Victoria marked the Jubilee year of her reign in 1887 by offering a free pardon to all deserters from the Army and Navy. The one condition was that they come forward between specified dates and make a declaration of their offence. On the 23rd February 1953 Her Majesty's Government as a special measure which was not be regarded as a precedent for the future, initiated the Deserters (Coronation Amnesty), and stated there would be no further prosecutions of members of the Armed Forces who deserted from the Services between 3rd September, 1939, and 15th August, 1945. However Men who wished to take advantage of this amnesty were required to report themselves in writing to a Service authority. They then received a protection certificate and transferred to the appropriate Reserve to which men were transferred on demobilisation post war. Men who claimed the benefit of the amnesty were not prosecuted for certain offences consequential upon desertion, such as subsequent fraudulent enlistment, or the possession of identity documents in a false name, but the amnesty did not cover other offences against the criminal law. Service personnel who were awaiting trial or serving sentences for desertion during the 1939–45 war were to be released from custody. See also: Pardon for WWII deserters - Manchester Guardian on 24 February 1953.

New Zealand - United States of America:

In New Zealand and the USA, the practice in relation to the prosecution of deserters was almost identical with that of the United Kingdom, e.g. trial by court-martial.

Australia:
In Australia on 14th June, 1946, Mr. Forde, Australian Minister of Defence, stated: "Army authorities have given consideration to action to be taken in relation to 7,879 members of the Forces declared to be illegal absentees during 1939 to 1945. The Army authorities decided to discharge them in absentia immediately. The records of such members will be endorsed to the effect that their discharges were made on account of misconduct during service. Discharge under these conditions automatically precludes them from eligibility for war gratuity, war medals, rehabilitation benefits and war service homes"; Mr. Forde pointed out that the decision to treat deserters in this way was exactly similar to the decision made and the action taken after the 1914–18 War. He went further and said that "any pay due to the soldier during his honourable service ought to be paid to him on his discharge".

Canada:
In Canada on 14th Aug. 1946, the Governor-General in Council made the following Order: "Whereas there are at present approximately 14,100 persons who are absent without leave or in a state of desertion from the naval, military and air forces of Canada, of whom approximately 8,100 were called out for service under the provisions of The National Resources Mobilisation Act, 1940, and 6,000 are General Service personnel;…now therefore, His Excellency the Governor-General in Council, on the recommendation of the Minister of National Defence…is pleased to make and doth hereby make the following Order"; "All members of the Naval, Military and Air Forces of Canada and persons called out for compulsory military service under the provisions of The National Resources Mobilisation Act, 1940, who absented themselves without leave or deserted prior to the 1st day of January, 1946, and who have not since that date either surrendered themselves into Naval, Military or Air Force custody or control or who have not been apprehended…shall, for all purposes, be deemed never to have been enlisted or enrolled or appointed to or to have served with the Naval, Military, or Air Forces of Canada".

South Africa:
In South Africa, on 25th November, 1945, Proclamation No. 257, amending the Regulations of the Coast Garrison and Active Citizen Forces, said: "Provided that a soldier who has been absent without leave from his duty for a period of not less than 90 consecutive days, may, in the discretion of the Adjutant General, be discharged with effect from the date on which such absence commenced. On 15th December, 1945, Proclamation No. 3 was made referring to the same matter".

Pardons And Clemency By Country:

Factual World - Article.
 

The American Experience - Bills of Attainder "Pains and Penalties":

The Bill of Attainder Clause in the American Constitution was intended to implement the separation of powers among the three branches of the Government by guarding against the legislative exercise of judicial power. An Act is pervaded with the key features of a bill of attainder where a law legislatively determines guilt and inflicts punishment upon an identifiable individual, class or group without provision of the protections of a judicial trial. A statutory enactment that imposes any of those sanctions on named or identifiable individuals would be immediately constitutionally suspect pursuant to US law. The American experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments, e.g. a legislative enactment barring designated individuals or groups from participation in specified employments or vocations which is a mode of punishment commonly employed against those legislatively branded as disloyal. See, e. g., Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277 (1866) see also proscription against bills of attainder: United States v. Brown, 381 U.S. 437 (1965). It could be argued that Emergency Powers (No. 362) Order of 1945 falls within the meaning of a bill of attainder as the Order inter-alia determined the guilt and inflicted punishment on an identifiable class e.g. defence force personnel without the provision and protection of a judicial trial, e.g. a military court-martial.

The American Experience - Court-Martial Jurisdiction:

In 1987 the U.S. Supreme court held in Solorio v. United States, 483 U.S. 435, that 'the jurisdiction of a court-martial depends solely on the accused's status as a member of the Armed Forces, and not on the "service connection" of the offense charged'.

The American Experience - Presidential Pardons:

Question as to whether a presidential pardon expunges judicial and executive branch records of a crime; see Memorandum of Opinion For The United State Pardon Attorney 11 August 2006. See also the Posthumous Pardon of Lieutenant Henry Ossian Flipper - Bending Toward Justice - Indiana Law Journal 1999.

The Canadian Experience - Pardon (Record Suspension):
Most commonly asked questions with respect to removing a criminal record, or obtaining a pardon also known as a record suspension in Canada. See Pardon Services of Canada.

Courts-Martial - Irish Defence Act 1954:

The constitutional basis for the establishment of Military Courts (known as Courts-Martial) for the trial of offences alleged to have been committed by persons subject to military law is Article 38.4.1 of the Constitution (Bunreacht na hEireann 1937), which provides: “Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law …..” The Defence Act 1954 (as amended) provides the principle statutory basis for the Court-Martial system, which administers military justice in the Irish Defence Forces. The current military justice system for the Defence Forces came into effect on 1st September 2008 when the Defence (Amendment) Act 2007 came fully into force. Extract Courts-Martial Background - Website Irish Defence Forces.

Jurisdiction: Section 192—"(1) Subject to the provisions of this Act, a court-martial, whether general or limited, shall have jurisdiction to try and punish any person for an offence against military law committed by such person while subject to military law as an officer or a man".

Resolution:

Following the introduction of EPO 362 of 1945, Dail Eireann as a legislative assembly took on a judicial function to try, convict and then punish defence force personnel en masse, unheard and in absentia for the (alleged) offence of desertion denying accused servicemen any opportunity to raise a defence which blatantly negatived their constitutional rights. Irrespective as to whether they are in peace time mode or in time of emergency defence force personnel in service or on active service have the same rights as the Shot at Dawn Campaigns have proved. During WW1 the British Army gave accused servicemen a hearing, albeit summary pursuant to a field general court-martial on the battlefield. Even during the Troubles on the Island of Ireland defendants accused of terrorist offences had a right to present a defence in trials conducted by the Diplock Courts and Special Criminal Court. In contrast, de Valera's government dismissed and punished servicemen for the (alleged) offence of desertion ... unheard and in absentia.. including those killed in action.. without permitting them or their representatives the opportunity to rebut such allegations before a military court. Cognisant of the complex legal issues involved the following is a suggested resolution which might be seen as respecting the interests of all concerned:

 

1. The Irish Soldiers Pardons Campaign (WW2) has always accepted without equivocation that desertion is a serious offence and those found guilty of the offence of desertion or any military offence must suffer the consequences, however accused defence force personnel subjected to such allegations are entitled to be judged in accordance with military law and within the framework of a properly constituted military tribunal together with the inalienable right to present a defence on their behalf pursuant to the constitution.  A legislative assembly acting as a substitute for a military tribunal subverts the judicial function of a court-martial.

 

2. It is recognised without equivocation that members of the defence force who served in the defence forces during the "Emergency" were engaged in important and honourable service for their country.

 

3. It is recognised without equivocation that it is crucial no decisions are made which would in any way diminish or undervalue their loyalty to the state and the honourable service given by them to the state.

 

4. As the history relating to Emergency Powers (No. 362) Order of 1945 cannot be undone any suggested resolution can only be viewed in the context of a legislative/pardoning structure which removes insofar as practicable the stigma of dishonour that is a consequence of the effects of this emergency legislation taking into account all the circumstances past and current in order to rehabilitate their memory.

 

5. The full list of Irish defence force personnel dismissed for (alleged) desertion and circulated confidentially by the de Valera government pursuant to EPO 362 of 1945, is currently available and can be purchased Online from a British publisher. Had these servicemen been subjected to the rigours of a properly constituted defence force military court, post war, such records would have been classified by the Irish military authorities barring publication thereby preventing any further hurt or public opprobrium being visited on these men or their families. Consequently any resolution must effect the list as its recent publication has reconvicted and stigmatised these men and their families all over again. If the British government can be persuaded by the Irish Government Report submitted in 2004 to Pardon the Irish Shot at Dawn of WW1 see also 'Minister Welcomes Pardons for Irishmen' 8 November 2006, then it should be possible for an Irish government to adopt a similar stance and act with the same wisdom and compassion. As the survivors are in the twilight of their years and as time is of the essence, positive action by government will enable the book on this sorry and sad state of affairs to be closed with dignity and with some measure of justice for all concerned, and importantly, without impacting negatively on the good order and military discipline of our defence forces.