Britain must take moral responsibility for Batang Kali massacre — Kua Kia Soong
SEPT 7 — On September 4, the London High Court handed down a judgment that there was no legal duty for the British government to hold an inquiry over the killing of 24 civilians by Scots Guards at Batang Kali on December 11/12, 1948 and that the claimants had no grounds to challenge the decisions of the Secretaries of State not to hold an inquiry.
The conclusion of the court was that the decisions of the Secretaries of State “were not unreasonable…” They had maintained that the facts of the case remained in dispute; the veracity of the accounts was in doubt as most of the witnesses had died, and the evidence would be unreliable since it happened more than 60 years ago.
Regarding the claim that the Secretaries of State had an obligation to conduct an inquiry under Article 2 of the European Convention on Human Rights, the court cited the House of Lords decision [Re McKerr and McCaughey UKHL 12, 1 WLR 807] that “there was no duty to investigate a death before the coming into force of the Human Rights Act on 2 October 2000.” (para 93)
Although this may seem like a setback for the claimants and all who demand justice for the 24 victims, there are certain positive dimensions in this judgment and hope in comparable cases elsewhere.
1. The court established that the 24 victims were civilians and not combatants (para 1):
On December 13, 1948, the British High Commissioner had reported the deaths to the Colonial Office as “the shooting and killing of 26 bandits...” This was standard propaganda during the Emergency by the British colonial government and their local custodians. It has taken all these 64 years for this fact to be established by a British court!
2. The British government had command and control over the Scots Guards.
The Secretaries of State had argued in the court that the British government had no legal responsibility for the actions of the Scots Guards who did the killing at Batang Kali, so they were under no duty to hold an inquiry to pin the responsibility. They had argued, very much like our learned professors in the Mat Sabu/Mat Indera case, that the Scots Guards were merely assisting the Federation or the Selangor Sultan, or both, in maintaining order. In any case, they further argued that any responsibility would have lapsed to the Federation of Malaya upon independence in 1957 via Article 167 of the Constitution.
Nevertheless, the court decided that:
“It is clear, in our view, that the British government had command and control over the Scots Guards. First, the Scots Guards were part of the British Army in contradistinction to the Malay Regiment and other local forces. Second, it is evident from the minute of the British Cabinet… that the reason for the decision to send the brigade of the British Army was to defend British interests against the advance of communism on what was in reality territory the British government controlled, to prevent the deaths of British citizens and to protect its economic interests. Third, control over the deployment of the army in Malaya was vested in British Defence Co-ordination Committee Far East… Fourth, the Scots Guards were paid for by the British government…” (para 112)
Thus, this judgment has wide applications in the Mat Sabu/Mat Indera case although I suspect many of our local professors need not just legal exposure but rather political awareness of our colonial history.
Batang Kali is Britain’s Rawagedeh
Another source of hope for the claimants of Batang Kali is the recent apology by the Dutch government for a massacre of 150 people at Rawagede committed by its soldiers in Indonesia in 1947 as the country fought for independence. Earlier in 2011, a court in the Netherlands ordered the government to pay compensation over the killings. The case was brought by relatives of those who were killed. Reports said the Netherlands would pay €20,000 (RM80,000) to the relatives, but the exact figure was still being negotiated.
A crime against humanity
The Rawagedeh claimants had argued that what took place in Rawagedeh on December 9, 1947 was a crime against humanity. Like any other colonial power, the Dutch had used the euphemistic term “excesses” to describe the tragedy. Like the British in Malaya, the Dutch state defined it as an internal problem. On December 9, 1947 Dutch forces raided the West Javanese village to look for weapons and the Indonesian freedom fighter Lukas Kustario. Unable to find him, the Dutch military lined up the men and killed almost all of the male population.
The widows of Rawagedeh and their children sued the Dutch state not only for the execution of their husbands and fathers, but also for failing to investigate the massacre. They wanted the Netherlands to acknowledge the unlawfulness of its actions, and sought financial compensation for their loss.
Like the British state, the Dutch had also argued that the statute of limitations had expired. But according to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity there is no statute of limitations on war crimes, or crimes against humanity. The Netherlands, however, like many other Western countries, is one of the states that did not ratify the convention.
But the Netherlands did ratify the Rome statute of the International Criminal Court — after all, the court is at The Hague. However, according to the Rome statute of the International Criminal Court the court can only prosecute war crimes, crimes against humanity committed on or after July 1, 2002 — the day it came into being. This is not dissimilar to the House of Lords judgment cited in the Batang Kali judgment of September 4, 2012.
Gracious and glorious if Kate and Will apologised for British state
It will therefore only be a matter of time before the British state will be forced to face up to its moral responsibility to the Commonwealth and follow the example of the Dutch government. In this the Queen’s diamond jubilee year celebrations, would it not be a gracious and glorious gesture for Kate and Will to openly apologise to the families of the victims of the Batang Kali massacre during their Kuala Lumpur visit in a few months’ time?
Britain has always tried to project a self-image that is civilised, dignified and humanistic. Apologists for the British Empire have painted a romantic picture of colonialists setting their colonies “on the road to modernity…” The ideology of colonialism, which rationalised and justified oppression and exploitation, has distorted Malayan history and this history has been passed intact to their local custodians (foreign lackeys?). The smokescreen of “defeating communism” was used to justify atrocities such as Batang Kali 1948. Notice that the Malaysian government has kept a guilty silence over this case despite hounding Mat Sabu over Bukit Kepong.
Without accounting for past transgressions, the British state will remain forever trapped in history and the families of the 24 men massacred at Batang Kali will keep reminding the British state that they have a moral responsibility to apologise for the tragedy and to compensate the families for the senseless loss of their loved ones. The claimants have already notified their lawyers to appeal to the higher courts forthwith.
* Dr Kua Kia Soong is the Suaram adviser.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.