International law, torture and Britain’s gulag in Kenya

Acts of torture and mass brutality are not events new to the historic memory of the human race. The willingness of the international community to address such atrocities, perpetrated by or with the knowledge of states and state actors is however. In the current global climate, images, debates and high rhetoric, all centred on the subject of torture, have grown commonplace. And yet despite this, one cannot help but notice the uneasy footing on which the entire debate stands; the international community screams with abhorrence at the mention of torture, and yet, torture happens, often going unpunished. Individual states speak adamantly against the practice, and yet often do little when the issue arrives at their doorstep.

BRITISH HOUSE OF LORDS MOVING IN WRONG DIRECTION

The British House of Lords offers us an apt example. On 14 June 2006, the United Kingdom’s highest court decided a civil case, in which four British citizens sought redress for acts of torture committed upon them by actors of the Saudi Arabian government. In its decision, the House of Lords ruled that no such redress could be obtained through the British courts against a sovereign nation. The Lords weighed more heavily a state’s sovereign immunity than they did the international laws prohibiting torture, and which call for states to take punitive measures against those accused of such acts.

The ruling of the House of Lords would seem to come into direct contradiction with not only the growing international stance against torture, but also with past opinions of the House of Lords itself. While hearing a suit in 2005 that dealt with issues of torture, Lord Nicholls commented, ‘Torture is not acceptable. This is a bedrock moral principle in this country. For centuries, the common law has set its face against torture… Torture attracts universal condemnation.’ Lord Bingham in that same case stated, ‘The English common law has regarded torture and its fruits with abhorrence for over 500 years…’, and Lord Hoffman observed, ‘The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.’

And so, the high rhetoric continues, though the willingness of states to take action against torture remains uncertain. Despite this however, strides have been made.

NUREMBERG AND BEYOND

The 1940s illuminated both the horrors of which the human race is capable, and the willingness of global society to address and condemn such incomprehensible acts. The Holocaust shocked the conscience of the world, and in its wake, the world sought to ensure that such horrors would never be repeated. The Nuremberg War Crimes Tribunal that was created to try those individuals accused of what have come to be called ‘Crimes against Humanity’ and ‘War Crimes’ was the first court of its kind, hearing and sitting in judgment of those accused of ‘murder, extermination, enslavement, deportation, and other inhumane acts.’

Since that time, the global community has acted in a mostly unified way to wholeheartedly condemn acts of torture, ill-treatment and offences constituting violations of international humanitarian law. The Universal Declaration of Human Rights of 1948, the Geneva Conventions of 1949, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 are but a few of the international instruments addressing these issues.

Furthermore, recognition of the need for truth and reconciliation following state-perpetrated atrocities, as well as reparations, has grown over the past decade. The International Criminal Tribunals of Rwanda and the former Yugoslavia, the Truth and Reconciliation Commission of South Africa, as well as the Women’s International War Crimes Tribunal, which sat in Japan, have all worked to strengthen the international community’s awareness of and willingness to make greater strides in dealing with issues of torture and mass brutality.

Despite movement in the right direction, starting with the Nuremberg trials and continuing with the growing number of tribunals convened in the last decade, individual states and the international community at large continue to foster a selective memory of past atrocities however. The brutal actions taken by the government of the United Kingdom in Kenya in the 1950s represent one such set of memories selected for erasure.

KENYAN STRUGGLE FOR INDEPENDENCE

The 1950s ushered in a period that should be viewed with disgrace by the United Kingdom, and the world, as a systematic campaign of torture and brutality was carried out in colonial Kenya, coming on the heels of an international push to address such atrocities. The struggle for independence in Kenya – what came to be called the Mau Mau rebellion – was countered by the government of the United Kingdom with the plundering of ‘public and private property’, ‘devastation not justified by military necessity’, ‘crimes against humanity…including murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war’, the ‘confiscation of property and legal discrimination’, as well as ‘concentration camps for the purpose of incarcerating and liquidating all political opposition’, all of which actions were enumerated as crimes in the indictments of German war criminals, which the government of the United Kingdom had helped to initiate only years earlier. The mass brutality that was wrought down on both civilians and military persons, both within and without the detention camps, is not a memory that can be erased from the minds of those who lived through it. Neither should it be erased from the collective memory of human history.

GROWING AWARENESS AND THE MAU MAU REPARATIONS SUIT

The atrocities committed on Kenyan soil by the British government have received new and renewed interest, as scholars have re-examined the history of Kenya’s struggle for independence. Caroline Elkins’s book, Britain’s Gulag: The Brutal End of Empire in Kenya, and David Anderson’s Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire have shone new light on a period of British and Kenyan history that many would likely prefer to remain in the dark.

Survivors of British atrocities, together with The Mau Mau War Veterans Association and the Kenya Human Rights Commission (KHRC), are fostering awareness and awakening the memory of British injustices through a different avenue. Together, these individuals and organisations are demanding reparations from the government of the United Kingdom for the torture suffered and the losses sustained at the hands of the British colonial empire. Individual survivors are coming together to file a class action suit in the British court system, seeking corrective justice.

While the international community is in fact opening its eyes to the importance of reparations for past injustices committed by or with the consent of states and state actors, the likelihood of success in the British courts is not certain. What is nearly certain is that the British government’s defence lawyers will try their best to have the case thrown out of the British court system altogether, claiming that the statute of limitations has tolled, or that the United Kingdom is the wrong venue in which to file suit. Failing those arguments, it cannot be doubted that the British will have an arsenal of others ready through which to attempt to deny wrongdoing and hence, liability.

It would appear, however, that the law is on the side of the victims seeking justice. By the time the British colonial government declared a state of emergency in 1952, the precepts of international humanitarian law had been laid. As early as the beginning of the 20th century, it was recognised under the Fourth Hague Convention of 1907 that any belligerent party who violated the laws and customs of war would ‘be liable to pay compensation’ and be ‘responsible for all acts committed by persons forming part of its armed forces’. The crimes punished under the Nuremberg Charter were codified as such in numerous national and international laws following the Second World War, and the decades since have seen an expansion and strengthening of those laws. While the government of the United Kingdom will have to answer only to those laws that were in existence at the time of the atrocities, those laws were explicit and concrete.

Whether or not the Kenyan survivors of British brutality are successful in the legal arena is only one aspect of the achievement of reconciliation. Recognition of the atrocities perpetrated against the Kenyan people is essential.

As for the present and future standing of the doctrine of law addressing torture, and the willingness of national and international bodies to take affirmative action against torture and for its victims, the British House of Lords will likely be given another chance to demonstrate to the world that its declarations against torture are more than mere high rhetoric.

* Nicole Parshall is a law student at the Buffalo School of Law at the State University of New York at Buffalo. She is currently an intern at the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.