Was Breaker Morant the victim of a British cover-up?

New evidence backs claims that soldiers were following 'shoot to kill' orders issued by Lord Kitchener. Kathy Marks reports

Harry "Breaker" Morant was a hard-drinking, charismatic Outback cowboy who wrote ballads about rural life and was famous for his horse-breaking skills. He was also, so history has it,a war criminal – one of three Australian soldiers sentenced to death for killing prisoners during the Boer War.

The story of their court-martial by the British was dramatised in the 1980 movie Breaker Morant, directed by Bruce Beresford and starring Edward Woodward. When Cathy Morant, a distant cousin of the soldier, saw it, it confirmed her belief that the men were victims of a century-old miscarriage of justice.

Now she and the descendants of the other two soldiers, Peter Handcock and George Witton, have joined forces to seek a judicial inquiry into the case and, they hope, posthumous pardons. They believe that the men were unjustly convicted – they claimed to be acting under orders from Lord Kitchener, the commander of British forces in South Africa, not to take prisoners – and that the legal process was flawed.

In one of the most controversial episodes in Australian military history, Morant and Handcock were executed by firing squad in Pretoria in 1902, while George Witton's sentence was commuted to life imprisonment. All three were volunteers, and had joined a mainly Australian regiment, the Bushveld Carbineers, raised to fight guerrilla commandos in the remote Spelonken region of Northern Transvaal.

Their defence for killing 12 Boers – that they were obeying shoot-to-kill orders from their superiors – was rejected at their trial. But James Unkles, an Australian military lawyer spearheading the campaign for a pardon, believes he has uncovered new evidence supporting their claim.

The documents, unearthed in British archives, include a legal opinion from that time, referring to "the idea that no prisoners were to be taken in the Spelonken", and the transcript of a British parliamentary debate where concerns were raised about military tactics in the war.

"This was well before the Nuremberg trials; these soldiers had every reason to believe that the orders they were given were in good faith, and they obeyed them in good faith," Mr Unkles said. "[They] were colonial volunteers ... not British officers educated in the finer points of the rules of engagement. Morant had been reprimanded [previously] for bringing in prisoners, and he finally got to the point where he obeyed the orders."

Morant volunteered to fight in an Imperial war far from home when Australia was still a collection of British colonies. An English migrant who became an Australian folk hero, he worked on Outback cattle stations before going out to South Africa. He gained the reputation of a womanising charmer, and his bush poetry was published in a national magazine, The Bulletin.

The killings of unarmed prisoners took place over four days, and followed the death of the men's commanding officer, Captain Frederick Hunt, during an assault on a Boer stronghold. Hunt was a close friend of Morant's, and the latter was reportedly enraged by accounts that his body had been mutilated. His last words, as he faced the firing squad, were: "Shoot straight, you bastards!"

Kept in solitary confinement for three months, the soldiers were not able to consult their lawyer until the night before the court-martial. All three were denied the opportunity to appeal. Their relatives, including Handcock's widow and three children, found out what had happened from the newspapers.

Last year Britain rejected a petition for pardons, so the men's descendants have now turned to the Australian government, which is considering whether to order a judicial review.

Peter Handcock, the great-grandson of the soldier, says he and his father want "some kind of resolution, even if it turns out that they were guilty after all". Handcock's execution greatly affected his son, Peter's grandfather, "a very troubled person" who lost contact with all his siblings, he said.

"My Dad tells me that it was the cause of great shame for the family, and that it was never spoken about. He didn't know about it himself until he signed up for World War II, 40-odd years later"

Mr Unkles says he has identified 10 legal grounds on which the soldiers – the only Australians ever executed for war crimes – were denied natural justice. He believes they were "scapegoated" for political motives: to cover up the orders allegedly issued by Kitchener, and to accelerate peace talks with the Boers. "For political reasons, three Australians were made to take the rap for senior officers."

Cathy Morant, who calls the court-martial "a sham", said: "I want it recorded in the annals that these accusations [of murder] were unfounded, and for future generations to regard them as the heroes that I think they were, not the villains that they're being portrayed as."

As well as the movie, the saga inspired a play and a string of books, including Scapegoats of the Empire, written by Witton, who had been released after three years following a petition by 80,000 Australians to King Edward VII.

The Australian Attorney-General, Robert McClelland, is expected to decide soon whether to grant a judicial inquiry. If the request is rejected, Mr Unkles plans to seek leave to appeal in the British High Court.

However, descendants of the Boer prisoners are opposed to a pardon, and historians such as Craig Wilcox, an Australian academic, dispute the existence of shoot-to-kill orders. Mr Wilcox wrote in the Sydney Morning Herald that "the secret orders they claimed to have followed ... are surely mythical, a fabrication by desperate men in the dock".