I’ve spoken before about the value of official apologies for historical wrongdoing. While those on the right will squawk that it’s just a drummed-up excuse to make (group X) feel guilty for being (X), the real consequence of apologies is to take an opportunity to own one’s past. There is the old aphorism that “those who do not learn from history are doomed to repeat it” – basically the longer we continue to deceive ourselves about what is in our history, or try to pave over the bad things, the more likely we are to make the same mistakes again.
But then there are those times when we actively refuse to deal with history:
The government cannot be held legally liable for abuses during the Mau Mau rebellion against British colonial rule in Kenya, a court has heard. Ministers want a claim for compensation from four elderly Kenyans struck out by the High Court in London. The claimants say they were assaulted between 1952 and 1961 by British colonial officers in detention camps. The Foreign Office says Kenya had its own legal colonial government, which was responsible for the camps.
This is the kind of legal jiu-jitsu that only a mob lawyer could really feel good about. The court did not deny the abuse took place, or that the men were victims of the abuse. They just think that the men should go after the real culprit – the colonial government that no longer exists. Never mind that the colonial government was established by the British Empire, for the sole purpose of stripping Kenyans from the right to self-government. Never mind that it is impossible to sue the colonial government since Britain relinquished control of the colony. No, these aren’t relevant details to the case.
What is relevant is that England can avoid having to own up for its shocking history of colonial atrocities committed against military and civilians alike. It’s like something out of The Shawshank Redemption, where Andy Defresne creates a legal identity for a fake person that can never be prosecuted, because he never existed. The colonial government, under the direction of Britain (I can’t, in this context, bring myself to refer to them as Great Britain), committed abuses and was then dissolved at the end of the colonial era. Nice and tidy way of evading culpability, innit?
The judge heard Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to appalling sexual abuse.
Not relevant.
David Anderson, professor of African politics at Oxford University, who has examined some of the withheld documents, said the files proved Whitehall not only knew what was being done to Mau Mau suspects but also had a part in sanctioning their ill-treatment.
Not relevant.
The government says too much time has elapsed since the alleged abuses.
Ah, now see that’s a reasonable argument! Crippling and ongoing psychological trauma? Not our problem – that shit’s old news! Oh wait, you want an apology? Yeah… take it up with the colonial government – that’s who did it, right?
Oh wait, they don’t exist?
Not relevant.
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Ian;
From the 3rd Geneva Convention (1949) – the last widely signed and recognized convention (available at the ICRC web site):
Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
rt 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.
If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.
Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.
The questioning of prisoners of war shall be carried out in a language which they understand.
HOWEVER:
Chapter III. Penal and Disciplinary Sanctions
I. General Provisions
Art 84. A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
Cont’d:
Ian;
I agree the treatment the prisoners recieved was barbaric, inhuman, cruel, and possibly meriting of the term ‘atrocity.’
However, none of that touches on the LEGALITY of the issue.
On the international law front, based on the definitions in Article 4, the Mau Mau were NOT entitled to treatment as POWs. They did not fight in a recognizable uniform or under a recognizable sign; they did not have a responsible chain of command, and they did not fight in accordance with the recognized Laws of War.
IF civil rights were suspended (and they were), then Habeus Corpus was also suspended. While lawers will argue whether or not it is legal to suspend Civil Rights, most countries recognize the right to Martial Law in the face of certain natural emergencies, invasions, or insurrection. As Kenyans therefore did not actually have any civil rights during the insurrection, and did not enjoy the protections that 3rd Geneva enshrined for resistence movements or volunteer corps, from the legal point of view, this is a dead issue.
Again, I agree that morally and ethically the treatment of the Kenyans during the Mau Mau rebellion was horrifying. Moreover, while the abuses detailed above were bad, military history tells us that something like 10,000 Mau Mau were killed before the insurrection was crushed (including by heavy bomber strikes against suspect villages) – surely ethically even worse, as it did not even attempt to pretend to be striking only the guilty parties. In the end, though, as the Kenyans chose to persue a legal avenue seeking an apology, I can only conclude that legally, they have no grounds to stand upon.
Andrew Stocker
Two quibbles:
First – they may not have been a part of a recognized army, but surely that doesn’t permit the imprisoning party to do WHATEVER THEY WANT. Even if it is legally the case that the Mau Mau are not a formal army, and civil rights were suspended, does that mean that human rights are also suspended?
Second – your legal reasoning may be sound, but that’s not the argument that the English government made. They didn’t say “yeah, we did it, but it was a time of war and crazy shit happens”, they said “crazy shit was done, but not by us, just by a puppet government that we set up. Go after those guys.”