Saturday, 14 March 2015

More on the Supreme Court

According to John Halford on the Bindmans' web site:

On 19 March the Court of Appeal led by its second most senior judge, Lord Justice Maurice Kay, handed down an extraordinary judgment on the Batang Kali massacre case, Chong Keyu and others. Two weeks later, it took the rare step of granting permission to appeal against its own final Order, giving a green light to a Supreme Court appeal likely to take place later this year. These developments represent a turning point in a sixty five year campaign for justice by survivors, family members and thousands of supporters in Malaysia. Here the families’ solicitor, John Halford, explains why.
At their appeal hearing last November, four family members of the 24 unarmed civilians shot dead by British soldiers at Batang Kali village argued that Article 2 of the European Convention on Human Rights imposed a duty on the UK to commission an independent inquiry or investigation into what had happened. The investigatory duty was said to apply despite the killings having occurred before the Convention was drafted and signed.
This was a novel argument, never considered before by a UK court, but strongly founded on developments in Strasbourg (especially the Katdyn massacre case, Janowiec v Russia) and the Inter American Court of Human Rights (Moiwana Village v Suriname). These cases concern a duty to investigate serious wrong doing in the past, which arises from investigations being unfinished when human rights commitments are made by the states involved, or when new evidence comes to light. Deaths that pre-date those commitments may still need to be investigated properly.
From a common sense perspective, this is not surprising: the original investigation into the Batang Kali killings, undertaken by the colonial Attorney General in 1948-49, was subjected to withering criticism in 11 paragraphs of the judgment ending pithily with  “[w]e cannot escape the conclusion that the investigation at that time was woefully inadequate” (para 75). Later investigations, by the Metropolitan Police in 1970 and the Royal Malaysian Police in the 1990s, though incomplete, had unearthed evidence which “cast doubt on the original account” of a mass escape attempt being thwarted (para 82). This evidence included six of the soldiers involved confessing the killings were “murder” committed “in cold blood” (paras 37 and 43). The Court observed:
“The confessions which arose in 1969-1970 were of potential significance and remain so, not least because the investigation within which they emerged was brought to an abrupt halt. They have never been tested or discredited. The sum of knowledge has been significantly increased by the work of the Royal Malaysian Police twenty years ago but they were unable to secure meaningful co-operation from the United Kingdom authorities” (para 82).
So despite the passage of time, there is clear a connection between the killings, the original inadequate investigation, the UK’s signature and ratification of the European Convention on Human Rights, including the Article 2 duty to safeguard life, and the subsequent failure to undertake an inquiry when the new evidence came to light.
The Court of Appeal agreed, holding it was “probable” the families’ case would succeed in the European Court of Human Rights in Strasbourg (para 83), adding “the appellants have forged the first link in the chain” (para 85) to establish an inquiry duty enforceable here:
“The ‘genuine connection’ test [from the Janowiec case] focuses not only on what took place, pursuant to the article 2 procedural obligation, after the critical date but also on what ‘ought to have taken place’. In view of the limited nature of the investigation which took place before the critical date and the potential significance of the new material which has emerged since the critical date but which has never been subjected to the full rigour of independent evaluation, it is our view that, whilst we cannot predict with certainty what the ECtHR might decide, it is probable that it would find the ‘genuine connection’ test to be satisfied in this case” (para 82).
But the Court of Appeal went on to hold that the Human Rights Act could not be used to enforce the family members’ Convention rights because the Supreme Court had not given clear guidance on the extent to which it applied to past events, noting that a “move in that direction would now be a matter for the Supreme Court rather than for us” (para 100) and “it is for the Supreme Court in an appropriate case, to decide whether to change its jurisprudence so as to bring it into line” with current European Court of Human Rights case law.
The Court concluded by rejecting arguments that the refusal to hold an inquiry was irrational under the common law and dismissing the Secretaries of States’ defence that the Malayan High Commissioner or Sultan of Selangor had been legally responsible for the troops actions:
“The deployment was a deployment of troops by the Crown in right of the Government of the United Kingdom, with the consequence that the Crown became accountable for the actions of the troops” (para 138).
In short then, the UK was responsible for the killings in 1948 when they occurred and, when it signed up to human rights duties under the European Convention a few years later, the failed investigation became unfinished legal business. The UK’s  obligations grew more onerous when, in the 1970s and 1990s, evidence emerged that the killings were a massacre. But there was no adequate response, despite the obvious seriousness of the incident.
The Batang Kali massacre occurred because, in Britain’s Empire, its principles were sometimes abandoned. The question the Court of Appeal had to grapple with was whether they could be abandoned with impunity. It clearly thought not, but felt constrained by precedent to withhold a remedy. That uncomfortable result explains the unusual grant of permission to appeal to the Supreme Court to enable that Court to bring UK law in line with developments in Strasbourg.
For the victims’ families, justice so long delayed and denied, is now finally in sight. 

Sunday, 25 January 2015

News about Batang Kali case

I received the following email from John Halford who represents the families of victims of the Batang Kali killings...

I write with some news on progress.

The Supreme  Court has listed the families' appeal for a two-day hearing on 22nd and 23rd April. It will probably be heard by a 5 or 7 judge Court. The judgement is likely to be forthcoming 2-4 months after the hearing. 

Maddeningly, the government is reviving their bankrupt arguments about the Sultan of Selangor or the High Commissioner of Malaya being responsible in law. They also have an ally on the main arguments in the form of the Attorney General for Northern Ireland, who is intervening to argue against there being a duty to investigate pre-Human Rights Act deaths (because of the implications this would have in Ireland). 

Here are some details of the Court, which is in Parliament Square:-

Thursday, 3 July 2014

A Nasty and Brutal Business by John Newsinger

A Nasty and Brutal Business

Christopher Hale, Massacre in Malaya: Exposing Britain’s My Lai

The History Press, 432pp, £24.00, ISBN 9780752487014

reviewed by John Newsinger

For many years the British Army had a reputation as experts in counterinsurgency. Whereas both the French and the Americans had suffered humiliating defeats in Indo-China, Algeria and Vietnam, the British had not only successfully crushed insurgencies in Malaya, Kenya and elsewhere, but also managed the task without resorting to the brutality, torture and overkill that discredited other counterinsurgency campaigns. In the 1990s, this reputation was reinforced by the British performance in Northern Ireland, where a successful peace process had been put in place. These successes allowed the British to claim that they were the best at this type of conflict. They congratulated themselves on practicing a kinder, gentler counterinsurgency that actually worked: minimum force, maximum hearts and minds. In recent years, however, the poor performance of the British Army in Iraq and Afghanistan has led to a reassessment of Britain’s post-1945 wars. It turns out that the triumphs weren’t quite as glorious, or the conduct quite as restrained, as had been reported.

In Massacre in Malaya: Exposing Britain’s My Lai, Christopher Hale offers an important contribution to the reassessment of British counterinsurgency. Hale gives a very useful account of the Batang Kali massacre, its subsequent cover-up and the circumstances under which the atrocity re-emerged. But Massacre in Malaya does much more than its title suggests. For Hale, the importance of Batang Kali is that it provides a lens whereby ‘the entire history of British rule in Malaya, both direct and indirect, is thrown into sharp relief as a long and troubling chronicle of slaughter and deception’. He quotes one Imperial apologist who described Malaya in the 1930s as ‘a Tory Eden in which each man is contented with his station and does not wish to change’. The reality was somewhat different, with native labourers treated little better than slaves and ‘the plantation gulag … a realm of violence’. The infant Malayan Communist Party (MCP) was actively involved in organising resistance. And here lay one of the great historic triumphs of the British secret police: the secretary general of the MCP, Lai Tek, was a British agent.

When the Japanese conquered Malaya in 1942, Lai Tek effortlessly switched allegiance. He spent the occupation betraying his comrades, condemning them to torture and death at the hands of the Kempetai, the Japanese secret police. His miraculous escapes while others were captured, far from leading to suspicion, merely enhanced his reputation. He built a cult of personality that made him immune to criticism. Flexibility was key to his success. When the Japanese surrendered before the return of the British, many rank and file Communists expected the party to seize control and oppose any attempt to re-impose British rule. Lai Tek determined otherwise, ordering that the MCP should collaborate with the returning British. Hale puts the failure to take advantage of a ‘unique historic opportunity’ to establish a Malayan republic down to Lai Tek’s treachery. In fact, collaboration was still Soviet policy and a good case can be made that this, rather than treachery, was what lay behind Lai Tek’s stance.

The Cold War account of what followed maintained that this policy of collaboration ended when Soviet policy changed. Hale, however, shows it was the British Labour government’s determination to crush the Malayan Left that was decisive. The British were intent on increasing their exploitation of Malayan labour and resources, one of the policies of the 1945-51 Labour government that has been conveniently forgotten. Malayan tin and rubber were regarded as vital to British economic recovery. Increased exploitation resulted in greater social and political unrest, with the Communists leading the protests. The decision was taken to destroy them. Indeed, the British declared a State of Emergency long before the Communists were ready to launch any sort of insurrection, and the fight was thrust upon them. By now Lai Tek’s treachery had been exposed, but not before he had fled, taking the MCP’s treasury with him. His successor, Chin Peng, led the party throughout the war with the British.

The Malayan war was, as Hale insists, ‘a nasty and brutal business’. Torture, the shooting of prisoners out of hand, burning villages, internment, death squads: all were deployed in the conflict. Nevertheless, the comparison in the book’s title of the Batang Kali massacre with the My Lai massacre during the Vietnam War is misleading, as Hale himself acknowledges. The fact is that at Batang Kali, 24 male prisoners were summarily executed whereas at My Lai there was a positive orgy of rape, mutilation and killing that left over 300 dead, mainly women and children. And My Lai was just one of a number of such massacres in Vietnam. From this point of view, the British record was better than the American record.

But this has nothing to do with national character, military tradition or superior doctrine. The wars in Malaya and Vietnam were very different. The British were fighting a weak enemy that had no outside assistance in a country where support for the insurgents was largely confined to the Chinese minority. If they had been involved in a conflict on the scale of Vietnam, there is every reason to believe that they would have committed atrocities comparable to America’s many My Lais. Moreover, as Hale points out, the British government ‘resolutely continues to defy any and every effort made to investigate and hold open enquiries into acts of alleged criminal violence by British servicemen or police’. We still don’t have the full truth.

The real surprise is that, confronting such a weak opponent, it took the British 12 years to bring the Emergency to a successful close. And while the use of violence never escalated to the levels of American overkill, the British nevertheless conducted themselves with considerable brutality and ruthlessness. The cornerstone of the British counterinsurgency strategy was the forced resettlement of the Chinese squatters and regroupment of Chinese plantation workers and miners in order to bring them under government control. This used to be portrayed almost as a welfare policy introduced for the benefit of the victims but, as Hale shows, it was ‘a human disaster’. The squatters, plantation workers and miners were rounded up, had their homes destroyed and were herded ‘into the realms of government concentration camps’. Hale, an expert on the crimes of the Nazi regime and author of the excellent Hitler’s Foreign Executioners (The History Press, 2011), chooses his words very deliberately. The British, after all, had invented the term during the Boer war. Over a million people were resettled and regrouped behind barbed wire under police supervision, spied on and subject to every sort of hardship and abuse. It was this that broke the back of the insurgency, separating the insurgents from their imprisoned supporters. The Communist guerrillas, once isolated, were much easier to hunt down, and the British succeeded in creating a new and independent country, one ‘equipped with a steely authoritarian armour’. Hale’s account of the events that led up to this new Malaya is essential reading for anyone interested in the reality of Britain’s imperial retreat. It inevitably raises the question of what atrocities have been committed and, at least so far, successfully covered up in Afghanistan.

Friday, 13 June 2014

Book titles

A number of reviewers - and most of the reviews have been generally favourable - criticised the title 'Massacre in Malaya: Exposing Britain's My Lai'. They point out that book is not exclusively about the Batang Kali massacre (a misnomer in any case) and that the murder of 24 Chinese villagers in Malaya is not comparable to the killing of nearly two hundred civilians in 'My Lai'.

I can't disagree.

The original title of the book - which was suggested by literary agent Peter Robinson - was 'The War without a Name'. In their wisdom the publisher who eventually took the book wanted something more 'dramatic'.

Hence 'Massacre in Malaya'. A shame.

Re reading History Today...

I was curious to read again the short article that I wrote about Batang Kali before writing 'Massacre in Malaya'... Here is it is:

Christopher Hale reports on a long campaign to discover the truth about the killing of Malayan villagers by British troops in 1948.
Eyewitness: villager Romen Bose Tham, pictured in 2008. Getty Images/AFPEyewitness: villager Romen Bose Tham, pictured in 2008. Getty Images/AFPFor two days in May the restless spirits of 24 men shot dead by British soldiers in a Malayan village 64 years ago haunted Court Three of London’s Royal Courts of Justice.
The incident is often referred to as Britain’s My Lai – after the Vietnam War atrocity when ‘Charlie Company’, led by Lt. William Calley, murdered between 307 and 504 unarmed civilians on March 16th, 1968.
This year, after a long campaign, lawyers acting for the relatives of the dead men finally persuaded the British government to reconsider what they assert is ‘a grotesque, on-going injustice’. Since the killings at Batang Kali more than six decades ago successive British governments have refused to hold a public enquiry into what took place. The decision whether to proceed with an enquiry will not be known for some time. Even so, the proceedings in Court Three generated a great deal of new historically valuable information – not only about what happened in Batang Kali but about how and why a ‘very British cover up’ was maintained for so long.
There is no dispute that on December 11th, 1948 a 14-man patrol from the 7th Platoon, G Company, 2nd Battalion Scots Guards, led by two lance-sergeants, Charles Douglas and Thomas Hughes, entered Batang Kali where they encountered 50 or so unarmed villagers. The tiny settlement was part of the Sungei Remok rubber estate in the state of Selangor, which at the time was a British protectorate. Six months earlier, in June, a succession of attacks by Communist guerrillas had led the British authorities to declare an Emergency – the beginning of an undeclared war that was to last 12 years. By the time the platoon left the village the following day 24 men had been shot dead. The first report of the killings in the Singapore-based Straits Times sounded a shrill note of triumph: ‘Police, Bandits kill 28 [sic] bandits in day … Biggest Success for Forces since Emergency Started’. It would not take long for the official story to unravel.
‘Good news’ like the Batang Kali operation was in short supply at the end of the first year of the Emergency. The roots of the conflict go back to the Japanese occupation of Malaya and Singapore, which began in February 1942. The traumatic loss of Singapore to a grossly underrated Asian foe shamed and humiliated the British and led many Asians to reassess their former masters. In the first months of the occupation the Japanese slaughtered many thousands of Chinese civilians in Singapore and across Malaya. Japan had been waging a brutal war in mainland China since 1937 and alleged that the Chinese in Malaya were a security risk. Many young Chinese fled into the dense Malayan jungle, where they began to organise guerrilla units to fight back against the Japanese. The Malayan Peoples Anti-Japanese Army (MPAJA) was dominated by the Malayan Communist Party (MCP) and by the end of the war was backed by the British ‘Force 136’, a branch of the Special Operations Executive. After the Japanese surrender in 1945 the British honoured the MPAJA , awarding its future leader Chin Peng an OBE.
As India moved towards independence the chronically indebted postwar British government clung onto Malaya, with its valuable tin and rubber resources. Although the returning colonial power signalled that independence was on the agenda, it seemed to both a new generation of Malay nationalists and the Communists that it was ‘colonial business as usual’. This was intolerable. The MPAJA now became the vanguard of anti-British resistance, as the Malayan National Liberation Army (MNLA), turning their British-supplied guns on the returned colonial authorities.
The MNLA was backed by a secret army of supporters known as the Min Yuen (People’s Movement). MNLA fighters depended on the Min Yuen and Chinese villagers, willing or unwilling, for essential supplies.
This was the background to the events that unfolded in December 1948 at Batang Kali. It explains why, to begin with, the British could claim that shooting Chinese civilians on a rubber plantation was a ‘success’: in the eyes of British troops, any Chinese-Malayan villager might be a ‘bandit’ – and thus ‘fair game’.
We now have a better idea of what happened next and how the ‘successful operation’ story rapidly began to crumble. Some of the surviving villagers told their story to Li Chen, the Chinese consul-general, who held a press conference on December 21st. The following day the British owner of the Sungei Remok Estate, Thomas Menzies, who had serious clout in the British estate-owners’ community and was no doubt dismayed by the loss of 24 workers, publicly stated that his labourers had a long record of good conduct. By December 24th the Straits Times was calling for a public enquiry.
Faced with this escalating disquiet, the British spun a different story, a narrative that has been maintained in official accounts to the present day, claiming that the 24 villagers had been ‘shot while trying to escape’. But, whatever the form of words, the British could not smother the truth. At the end of January the British Communist MP Philip Piratin demanded that Arthur Creech-Jones, the colonial secretary, explain the actions of the Scots Guards. Creech-Jones replied that an ‘enquiry by the civil authorities’ had concluded that ‘had the security forces not opened fire, the suspect Chinese would have made good an escape, which had obviously been pre-arranged’. Creech-Jones’ ‘enquiry’ into a ‘necessary but nasty operation’ terminated the debate about the Batang Kali killings until the beginning of December 1969, when a former National Serviceman called William Cootes made a confession to the People, a British Sunday newspaper. Cootes appears to have been motivated by the furore unleashed by US journalist Seymour Hersh’s revelations about the My Lai massacre the previous year, which had provoked a debate about whether British troops might have been capable of committing such an atrocity. Public opinion resisted such slurs but Cootes knew better. He had been one of the 14 Scots Guardsmen who had entered Batang Kali.
He alleged that their commanding officer, George Ramsay, who did not accompany the platoon, had briefed his men that they were going to a village and would ‘wipe out anybody they found there.’ In other words, none of the male villagers had been ‘shot trying to escape’; they had been murdered in cold blood. Other former members of the platoon also came forward and backed up Cootes’ allegations: Alan Tuppen testified that: ‘He [Ramsay] said we were to go out on patrol and that our objective would be to wipe out a particular village and everyone in it because, he said, they were either terrorists themselves or were helping terrorists in that area.’ Tuppen provided shocking new detail about the killings: ‘Instinctively, we started firing … at the villagers in front of us. The villagers began to fall. One man with bullets in him kept crawling … He was finally killed when a bullet went through his head.’ Another former guardsman, Victor Remedios, testified that after the platoon returned to base ‘we were told by a sergeant that if anyone said anything we could get 14 or 15 years in prison.’
In court, the lawyers representing the claimants repeatedly and eloquently emphasised evidence that pointed to ‘intentional extra-judicial execution’. Witnesses had observed members of the Scots Guards platoon dividing the villagers into groups and then escorting them away from the village: ‘They weren’t actually running, but just walking past and away from the village.’ Evidently no attempt was ever made to escape. A further grotesque anomaly is that all the men were killed: if they had been ‘shot trying to escape’ it doesn’t make any sense that none survived.
In the aftermath of the People story and the media storm that had followed on February 13th, 1970 Denis Healey, the secretary of state for defence, referred the matter to the director of public prosecutions (DPP). At the end of the month, DPP lawyers recommended further enquiries to be conducted by the Metropolitan Police – much to the dismay, as we learnt in court, of the Foreign Office. An investigative team was set up under Detective Chief Superintendent Frank Williams, which included a former Scots Guardsman, Ron Dowling. All the former members of the Scots Guards platoon who had testified to the People were interviewed again under caution and Williams learnt of other survivors of the operation still living in what was now independent Malaysia. Plans were made for the British police team to fly to Kuala Lumpur to continue with their enquiries. Then on June 18th, 1970 the Labour government was ousted by the Conservatives – and just weeks later the Batang Kali enquiry was aborted with a view, as we now learn, ‘to upholding the good name of the army.’
This pattern of fresh revelation followed by denial and cover up was repeated after the broadcast in 1992 of a BBC Inside Story television documentary, ‘In Cold Blood’. This time a Malaysian police enquiry was launched and then aborted. Documents referred to in court reveal that the Batang Kali massacre remained a highly sensitive issue. To this day the British government has not changed the story that appears to have been fabricated more than 60 years ago – ‘shot trying to escape’.
Thanks to the lawyers acting for the surviving relatives of the Batang Kali massacre this long and troubling cycle of denial may at last be properly and openly resolved – if  the two judges who heard the arguments decide to recommend a public enquiry. For historians of the British Empire and the traumatic process of decolonisation that followed the Second World War a new enquiry promises to cast fresh light on the longest war fought by British troops in the 20th Century – the Malayan Emergency – and the counter- insurgency techniques developed in South-east Asia that influenced American strategy in Vietnam and continue to impact on bitterly contested campaigns in Iraq and Afghanistan.