Judging History
The Interaction between Law and History in Civil Litigation about Colonial Crimes
Rosa Beets
Supervisor: Prof. mr. dr. H.G. van der Wilt
Amsterdam, April 26, 2018
Rosa Beets
Research Master Public International Law Master Thesis
Word count: 21.498 (including footnotes)
TABLE OF CONTENTS
Introduction 1 History in the courtroom 1 From criminal prosecution to civil litigation 3 Case selection and sources 5 Structure of the essay 7
Part I: The Mau Mau Case 9 The rise of Mau Mau in colonial Kenya 9 The Mau Mau take their case to court 12 The British government as defendant: local excesses or common design? 14 Paradigm of evidence: historians as experts about the past 17 The archive that witnessed everything 20 Historians versus lawyers: historical narrative in legal argument 23 The colonial power may go to trial 25 Documents versus witnesses: a fair trial on history 26 Epilogue 30
Part II: The Indonesia Cases 33 Dutch colonialism in Indonesia and the decolonization war 33 Rawagedeh and beyond: a brief outline of the Indonesia cases 35 ‘War crimes’ versus ‘excesses’: contesting the official narrative 38 A ‘closed chapter in history’? 43 Civil claims, international crimes: a similar rationale 46 Historical inquiry through civil litigation 47 The historian as an independent expert 49 Individual cases within a broader context 51 Epilogue 54
Conclusion 57
Bibliography 63
INTRODUCTION
History in the courtroom Jeremy Sarkin opens his book on Colonial Genocide and Reparation Claims in the 21st Century, published in 2009, with the observation that ‘[u]ntil relatively recently colonial human rights abuses were regarded as morally problematic, but they did not seem to have any legal relevance.’1 Over the decade to follow this publication, however, colonial violence has been increasingly dealt with in the legal realm. This ‘juridicalisation’ or ‘legalisation’ of the colonial past, as some commentators have labelled the phenomenon, has put courts in the role of interpreters of history, a task hitherto reserved for historians.2 The courtroom provides, however, a complex setting to study history. As Michael Marrus eloquently remarks, both historians and lawyers are storytellers – but storytelling in a legal context is defined through rules and procedures that serve law’s overriding objective to secure just outcomes.3 The relationship between law and history has therefore received ample attention from both legal scholars and historians, particularly in the context of international criminal law. The Nuremberg trials, the trials of former participants in the Nazi apparatus such as Adolf Eichmann and Klaus Barbie (who were prosecuted for international crimes in national courts), and the on-going proceedings at international tribunals and the International Criminal Court have been widely studied as instances where law and history meet, interact, and chafe. Although notable exceptions do exist, such as Marrus’ fascinating study
1 Jeremy Sarkin-Hughes, Colonial Genocide and Reparations Claims in the 21st Century: The Socio- Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904-1908 (Praeger Security International 2009) 1. 2 See for instance Caroline Elkins, ‘Alchemy of Evidence: Mau Mau, the British Empire, and the High Court of Justice’ (2011) 39 The Journal of Imperial and Commonwealth History 731; Stiina Löytömäki, Law and the Politics of Memory: Confronting the Past (Routledge 2014); Bart Luttikhuis, ‘Juridisch Afgedwongen Excuses. Rawagedeh, Zuid-Celebes En de Nederlandse Terughoudendheid’ (2014) 129 Low Countries Historical Review 92. 3 Michael Robert Marrus, Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (University of Wisconsin Press 2009) 85.
1 on the Holocaust Era Restitution Campaign in the 1990’s, the topic has gained less academic attention in the context of non-criminal proceedings.4 In contrast to other disciplines dealing with histories of violence, the law, as noted by Lawrence Douglas, has been confronted with a “dual burden”: it has to find a way to both represent and judge the past.5 Within the debate on the ability of the law to deal with this burden, Richard Wilson has identified two main schools of thought that both consider courts inappropriate forums for dealing with traumatic episodes in history. The first, which Wilson characterizes as the ‘doctrine of liberal legalism’, asserts that ‘the justice system should not attempt to write history at all, lest it sacrifice high standards of judicial procedure.’6 Such critique, most famously argued by Hannah Arendt in her work on the Eichmann trial, claims that the sole function of the trial is to determine the guilt (or innocence) of the accused on the basis of the charges, and that the pursuit of other objectives, such as the creation of a historical record, ‘can only detract from the law’s main business’.7 The second school of thought, described by Wilson as a critique of legal knowledge produced by ‘law-and-society’ research, maintains that when the law does engage in historical inquiry, it will inevitably fail due to the procedural rules that govern the trial. From this perspective, as a result of the differences between legal and historiographical methods, principles and aims, the legal process cannot circumvent creating distorted historical records and narratives. 8 In brief, where the first school of thought adopts a normative approach and warns against corruption of the legal process (the law should
4 Marrus (n 3); see also in Leora Bilsky, ‘The Judge and the Historian: Transnational Holocaust Litigation as a New Model’ (2012) 24 History and Memory: Studies in Representation of the Past 117; Other studies on the relationship between law and history in the context of non-criminal proceedings include the cases of the Japanese ‘comfort women’, see Kohki Abe, ‘International Law as Memorial Sites: The “Comfort Women” Lawsuits Revisited’ (2013) 1 Korean Journal of International and Comparative Law 166; the Irvin libel case, see Richard J Evans, ‘History, Memory, and the Law: The Historian as Expert Witness’ (2002) 41 History and Theory 326; and native title litigation, see Lawrence Mcnamara, ‘History, Memory and Judgment: Holocaust Denial, the History Wars and Law’s Problems with the Past’ (2004) 26 Sydney Law Review 353, 355, fn 12. 5 Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press 2001) 5. 6 Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge University Press 2011) 2. 7 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (The Viking Press 1963) 253. 8 Wilson (n 6) 6.
2 not engage in writing history), the second aims to expose law’s incapability to comprehend historical complexity (the law cannot engage in writing history), and hence approaches the subject from a more descriptive angle.
From criminal prosecution to civil litigation The analytical framework for this study will be derived from the ‘law-and-society’ approach, which I will apply to civil litigation concerning the colonial past. 9 The study aims to explore the interaction between law and history in two case studies, both civil actions in which several individuals sued their former colonizer for damages resulting from excessive state violence.10 Within the broad subject of the interaction between law and history, my interest is threefold. First, the methodo- logical encounter between both disciplines. Second, the manner in which individual cases relate to a broader historical context. Third, the challenge posed by legal claims to the official, state-approved historical narrative. These three matters in essence all concern the representation of history in legal proceedings. Below, I will briefly elaborate on each aspect and suggest that civil litigation appears to have, at least at first sight, certain advantages over criminal procedure. First, the manner in which a specific historical event is studied in the courtroom differs from the way it is studied by historians. In this vein, scholars have emphasized differences between legal and historiographical approaches to evidence, sources and interpretation.11 Law and historiography, moreover, work with different notions of time, and conceptualize past and present distinctively. Statutory limitations, on first sight mere technical procedural norms, therefore may give insight in the dynamics of legal engagement with the past. When historians participate in legal proceedings, as experts of the past, the tension between disciplinary conventions comes into the limelight; hence I will pay particular
9 This decision is motivated by the notion that the ‘liberal legalist’ critique on first sight seems less pressing in the context of civil litigation. Criminal procedure serves to protect an individual against the power of the state through rules that guarantee the conduct of a fair trial. Civil procedure, on the other hand, aims to ensure effective and fair proceedings between two - in procedural respect - equal parties, to enable them to effectuate their private rights and duties. When the civil limb of the law is used to (re)write history, this will pose less a threat to requirements of legal justice, and hence to the legal process itself. 10 The selection of these two cases will be explained below. 11 See Wilson (n 6) 6–7.
3 attention to the role of historians in both case studies. According to Richard Evans, the concepts guilt and innocence – the central issues in a criminal trial – are ‘entirely alien’ to the historians’ enterprise, and thus he ‘should not be asked to engage in them, or to serve their purposes, by a court of law’.12 Since civil procedure is not exclusively directed towards ‘guilt’ or ‘innocence’ but remains open to broader claims such as acknowledgment and recognition, it appears to produce a less black- and-white outcome than a criminal trial. Second, in the context of (international) criminal law, many writers have taken issue with the idea that the legal focus on individual actions and intentions distorts the broader historical context. The French historian Henry Rousso, for instance, lamented that ‘history as a whole … is tried through individuals whose status is regarded as representative’, but whose selection is, in some respects, arbitrary.13 In his inaugural lecture, Harmen van der Wilt explores the challenges faced by international criminal law in addressing the structures in which individual crimes are embedded. International crimes, he notes, require comprehensive preparation and organisation, and are mostly characterised by the use of the machinery of the state. Yet, as crimes are divided into small fragments of individual responsibility, collective mechanisms, and hence the historical context, are lost out of sight.14 It could be remarked that colonial violence seems to be an example par excellence that cannot be satisfactorily grasped by zooming in on individual actions, as it concerns the forceful imposition of all aspects of state power on a foreign territory and its people. On the outset, at least, civil law seems less confined to the microscopic level of specific actions and intentions of particular individuals. Third, whereas criminal prosecution is the monopoly of the public prosecutor, private parties initiate civil litigation. It therefore appears a legal instrument that is better fit to confront the darker pages of the past. Accordingly, I am particularly interested in the manner in which the claimants deployed legal concepts and tools to challenge the official narrative of the historical period at issue in the case.
12 Evans (n 4) 330; See also Wilson (n 6) 7. 13 Evans (n 4) 334. 14 Harmen van der Wilt, Het kwaad in functie (Vossiuspers UvA 2005) 6–8; See also Harmen van der Wilt and André Nollkaemper (eds), System Criminality in International Law (Cambridge University Press 2009).
4 Case selection and sources (i) Selection of cases Over the past decade, various legal cases have been dealing with colonial violence. Examples include the case of Keyu v. Foreign Secretary (an application for judicial review that concerned an alleged massacre by British soldiers at Batang Kali, during the Malayan Emergency in 1948)15; the Aussaresses trial in France (the prosecution of a retired French general and his two publishers for public defence of war crimes, concerning torture by French officials during the Algerian war)16, and the legal actions of the Ovaherero and Nama peoples (including a recent class action against the German government in U.S. courts, concerning an alleged genocide perpetrated by the German colonial authorities in South West Africa (now Namibia) between 1885 and 1909)17. The two cases that form the basis for this study are selected for several shared features.18 Most importantly, both cases are civil actions, which enables me to explore the relationship between law and history within this specific legal paradigm. Moreover, the cases are both brought against states as private legal entities. Finally, both claims specifically concern state violence during the decoloni- zation period. Although by no means is it suggested that the historical contexts of both cases are therefore comparable, it does limit the scope of the study to specific periods in time. An important difference is that the cases were respectively pursued in a common law (the United Kingdom) and a civil law (the Netherlands) system. Although comparative lawyers have taken issue with both ‘the idea that procedural systems can be neatly divided into the traditional legal families’ and the frequently
15 See Thomas Poole and Sangeeta Shah, ‘A Very Succesful Action? Historical Wrongs at Common Law’ [2016] LSE Law, Society and Economy Working Papers; Anthony Short, ‘The Malayan Emergency and the Batang Kali Incident’ (2010) 41 Asian Affairs 337. 16 See Stiina Löytömäki, ‘The Law and Collective Memory of Colonialism: France and the Case of “Belated” Transitional Justice’ (2013) 7 International Journal of Transitional Justice 205. 17 See Sarkin-Hughes (n 1); Steffen Eicker, Der Deutsch-Herero-Krieg und das Völkerrecht: die völkerrechtliche Haftung der Bundesrepublik Deutschland für das Vorgehen des Deutschen Reiches gegen die Herero in Deutsch-Südwestafrika im Jahre 1904 und ihre Durchsetzung vor einem nationalen Gericht (P Lang 2009); Sidney L Harring, ‘German Reparations to the Herero Nation: An Assertion of Herero Nationhood in the Path of Namibian Development?(Genocide by Germany Army against Herero Tribe in Early 19th Century)’ (2002) 104 West Virginia Law Review 393. 18 See Gerhard Dannemann, ‘Comparative law: Study of Similarities or Differences?’ in: Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press 2006).
5 used distinction between adversarial and inquisitorial procedures, it is beyond the scope of this essay to explore those assertions in detail.19 Rather than engaging in full comparative enquiry, the study will explain features of each case with regards to its particular legal context where this is necessary to comprehend the interaction between law and history. At the outset, I will highlight certain principal differences between civil and common-law procedures that are relevant for this study. Importantly, civil and common-law legal traditions differ with regards to the delineation of the scope of the dispute. In civil law countries, the complaint defines the parameters of the case, whereas in common law countries the complaint is generally rather ‘a formality which starts a procedure of investigation aimed at establishing the truth.’20 In general, the judge plays a more active role in civil legal systems and the collection of evidence is seen as a public function of the court, whereas in common law countries this process is rather considered a private matter in which the parties play the principal role.21 Furthermore, whilst in civil law countries emphasis generally lays on written evidence, common law systems rather value oral evidence and cross-examination of witnesses by the parties. Finally, expert witnesses in common law usually are deployed by the parties, whereas in civil law countries they are appointed by the courts, and are considered impartial ‘court experts’.22
(ii) Sources The available legal documents (such as summons, judgments and witness statements) form, as primary sources, the “data” for the study. Where necessary, they are supple- mented by secondary sources such as newspaper reports and interviews. It is here that one finds a significant practical limitation that the study faces: the amount of
19 Joachim Zekoll, ‘Comparative Civil Procedure’ in: Reimann and Zimmermann (n 22). 20 Caslav Pejovic, ‘Civil Law and Common Law: Two Different Paths Leading to the Same Goal’ (2001) 32 Victoria University of Wellington Law Review 817, 830. 21 See R. Verkerk, ‘England and Wales: Powers of the Judge’ in: CH Rhee, van (ed), European Traditions in Civil Procedure (Intersentia 2005) 307–316. 22 Pejovic (n 20) 832–834.
6 “data” is limited because most legal files are not public.23 Although the meters of files that reside in the lawyers’ offices would certainly have provided a more comprehensive picture of the encounter between law and history in the case studies, sufficient material is available to complete the study satisfactory. It should, however, be acknowledged that the course of the proceedings is reconstructed on the basis of limitedly available legal files.
Structure of the essay The essay provides an in-depth analysis of the two case studies. For both cases, I will first provide a general historical background. I will thereafter explore the interaction between law and history during the course of the proceedings in the light of the threefold interest that I have presented above. Since both cases followed a different legal process, the structures of the chapters will differ accordingly. The first part analyses the case of Mutua and others v. FCO, a civil lawsuit brought against the British government by five Kenyans who claimed to have suffered torture and other severe mistreatment in detention camps during the last decade of British colonial rule. The main issue – why London was responsible for what had happened in the camps – generated not only much legal, but also substantial historical controversy in the course of the proceedings. I will analyse how the claimants’ lawyers laboured to connect the acts of physical perpetrators with the government in London, thereby significantly challenging the official story about the period. I will also recount how the case not only used history – primarily through the services of three historians – but also produced history, as the pressure of legal proceedings compelled the government to produce a vast quantity of files that had thus far remained ‘secret’ according to some, ‘forgotten’ according to others. Finally,
23 Although in the United Kingdom it is possible to request - against a fee - certain documents from the court record such as the particulars of claim, defences and counterclaims, in the Netherlands this is unfortunately impossible. Since there amount of available material was already larger for the British case (several relevant materials have been published by the claimants’ lawyers on their website, https://www.leighday.co.uk/), I decided not to make use of the possibility as this would put the inquiries of both case studies out of balance. For the Dutch cases, I did have access to the judgments, and some legal documents that were published on the website of the initiator of the cases, the foundation Yayasan K.U.K.B. (http://www.kukb.nl/). I was also able to attend several legal hearings.
7 I will address the debate in court on the question whether the claims were time- barred, and how this reflects different legal and historical approaches to evidence. The second part discusses a series of cases in the Dutch courts, in which the State of the Netherlands was held liable for summary executions and other forms of colonial violence during the Indonesian war of decolonization. In this part, I will first assess how the legal proceedings engaged with Dutch debate on the decolonization period. Thereafter, I will analyse the main legal issue – the applicability of statutory limitations – and explain how this provides insight in conflicting conceptions of past and present. I will also address the fact-finding endeavours in the cases, which illustrate the complexity of reconstructing history in accordance with legal standards, and examine how the individual cases relate to the broader historical context in which they took place. The final, concluding part recaptures which insights may be drawn from the case studies, and reflects on how such insights may enhance our understanding of the interaction between law and history.
8 PART I: THE MAU MAU CASE
‘I have brought this case because I want the world to know about the years I have lost and what was taken from a generation of Kenyans. … I would like the wrongs which were done to me and other Kenyans to be recognized by the British Government so that I can die in peace.’ 24 - Witness statement of Wambugu Wa Nyingi
‘If, therefore, we are going to sin, we must sin quietly.’ 25 - Note from the Attorney General, File REC/7, Hanslope Park
The rise of Mau Mau in colonial Kenya In 2009, five elderly Kenyans filed a claim against the British government alleging that they had been seriously mistreated at the hands of the British colonial administration in Kenya. The alleged mistreatment was said to have taken place in a period known as the “Mau Mau Rebellion”, an anti-colonial uprising between 1952 and 1962. Below, I aim to briefly set out those features of colonial Kenya that seem, at the very least, necessary to comprehend the background against which these claims were brought. This cannot be more than a limited introduction, and does not pretend to do justice to the complex social, economic and cultural implications of the colonization of Kenya. Kenya came under British rule as a protectorate in 1895, and was transformed into a British Crown colony in 1920. It was one of the places in British Africa (together with Southern Rhodesia and South Africa) in which the British planned and executed an extensive settler policy that aimed for white colonists to establish and run a solid settlers economy.26 The British government promised cheap land and labour (both being African), and thousands of settlers immigrated to Kenya, “Britain’s youngest and most attractive colony”27. The vast majority of the colonists settled in central Kenya, a highly fertile area that was soon to become named the
24 Witness statement of Wambugu Wa Nyingi (4 November 2010) para 90. 25 Quoted in: David Anderson, ‘Witness Statement No. 2’ (1 April 2011) para 13. 26 Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Henry Holt and Company 2010) 11. 27 David Koff and Anthony Howarth, Black Man’s Land: Images of Colonialism and Independence in Kenya (Bellweather Group 1979) as quoted in: ibid 3.
9 “White Highlands”. Needless to say, the increasing number of settlers went hand in hand with mounting pressure on the African population, whose lands were expropriated and who were gradually forced into the exploitative colonial wage economy. 28 Most affected by the settlement policies were the Kikuyu, the largest ethnic group in Kenya. The Kikuyu were agriculturalists who had traditionally inhabited the central highlands, and lost the larger part of their territory to the settlers. By end of the First World War, most Kikuyu were either living in ethnic reserves in the Central Province or as “squatters” (tenant farmers) on white farmers’ plantations. These developments formed the background for a growing resistance among the Kikuyu people. 29 Caroline Elkins describes how the Second World War brought major changes to Kenya, changes that ‘exposed the inequities of British colonial rule, galvanized Kikuyu discontent, and channelled it into a mass peasant movement that would be called Mau Mau.’30 The masses of the Kikuyu became mobilized through a radical transformation of the traditional Kikuyu practice of oathing, which, as Elkins describes, gained new meaning within the changing circumstances of British colonialism. The practice of mass oathing, sometimes being administered to hun- dreds of men, women and children at a time, spread rapidly and united the Kikuyu into an enormous popular movement that demanded land and freedom.31 The Mau Mau rebels that had taken up arms against the British started off by attacking cattle and destroying property. This terrified the white settlers, who pressed the colonial authorities to quell the movement. On October 20th, 1952, the Governor of Kenya, Sir Evelyn Baring, proclaimed a state of emergency, which lasted until January 12th, 1960. This period has become known as “the Kenyan Emergency”. The proclamation of the state of emergency led to an escalation of violence, with Mau Mau rebels brutally attacking and murdering many so-called “loyalists”, Kikuyu that were loyal the colonial government, which was followed by a series of violent
28 ibid 9–12. 29 ibid 12–14. 30 ibid 22. 31 ibid 23–27.
10 murders on white settler families.32 Pictures of these murders were widely distributed by the British and Kenyan press, where Mau Mau was depicted as evil, dark and barbarian, in contrast to the white and heroic forces of the colonial administration. The colonial propaganda machine presented the Emergency ‘as a war between savagery and civilization’33, which fitted rather well within the general narrative that colonisation of Kenya was not about land and resources, but a “civilizing mission”. 34 In short, Mau Mau rapidly became synonymous with pure evil.35 The colonial authorities responded to Mau Mau with a brutal and extensive counter-insurgency that was ‘fought not just by the military, or by the police, but [also] by the civil administration’.36 From March 1953 onwards, detention camps were build in order to accommodate the large numbers of detained Mau Mau suspects, along with the construction of enclosed villages for the civilian part of the Kikuyu population. 37 In the official story of the British government at the time, these camps and villages served to “rehabilitate” the Kikuyu people ‘through hard work and education’; helping them to civilize by making them recant their oaths.38 A year after the Emergency was formally ended, Kenya gained independence. The Mau Mau movement however remained an illegal organization until long after 1963. It was only in 2002 that the remaining members of Mau Mau were able to organize themselves in the Mau Mau War Veterans Associaton (MMWVA). From 2003 onwards, the Kenya Human Rights Commission (KHRC) started working with the MMWVA, starting a process of contacting and interviewing thousands of alleged victims of torture and abuse during the Emergency period.
32 Radiolab, ‘Mau Mau’
11 The Mau Mau take their case to court The ‘Mau Mau case’, as the case is often referred to, told a story of the counter- insurgency operation that differed considerably from the official position of the British government. Five claimants, selected by the KHRC together with the London-based law firm Leigh Day, claimed they had suffered torture at the hands of the British colonial administration during the Kenyan Emergency, their allegations ranging from forced castration to torture, severe beatings, forced labour and sexual torture and assault. Ndiku Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara, and Susan Ngondi at the time had either been accused by the colonial authorities of Mau Mau membership or of supporting the organization, and all claimed to have been detained in various detention centres and villages throughout the country. As a test case, it was hoped that if these five claims would be successful, they would result in community reparations for a wider group of victims.39 On June 23, 2009, the five claimants flew to London to issue their claims in person. The case that they presented involved an action for damages for personal injuries in respect of the torts assault and battery, and negligence, and was brought against the British government through the Foreign and Commonwealth Office (FCO). The five asked both financial compensation and a formal state apology for their alleged injuries, which were said to have been deliberately inflicted on the claimants by officers and soldiers of the Kenya police force, the Home Guard and/or the Kenya Regiment.40 Since local colonial officers had mistreated these claimants, the main challenge of the case was to argue that the present-day British government in London could be held liable for their actions. Martin Day, the leading lawyer for the claimants, explained that because the defendant was the FCO and not an individual officer or civil servant, he was compelled to ‘link individual acts of
39 Leigh Day, ‘The Long March for Justice’ 3
12 unlawful detention and castration “to the halls of British government”’.41 The efforts to establish this link shifted the focus of the case from the actual individual perpetrators towards a much larger picture, namely the context and circumstances in which the mistreatment had taken place. As one of the expert witnesses in the case observed ‘these allegations question the very purpose and organisation of the British counter-insurgency in Kenya and raise the issue of state violence in the suggestion that the use of brutal methods of abuse, including torture, was part of a systemic and calculated response to the Emergency in Kenya between 1952 and 1960.’42 The claims, I would suggest, were in essence about denial and acknow- ledgement, not only of justice, but also of history. This is not to downplay the importance of financial compensation to the claimants, most of whom were living in severe poverty. Rather, it is to argue that compensation too was a symbolic form of recognition of their version of the past. The legal action enabled the Mau Mau veterans to publicly challenge the official British account of the Kenyan Emergency. In the state-approved version of events, unlawful use of force had been depicted as “excesses” committed by local security forces that were not under the control of the British Army and with which the British government had nothing to do.43 The claimants aimed to demonstrate that their experiences had not been excesses or incidents, but reflections of systematic torture that was condoned at the highest levels of British government. As Ian Cobain, who reported on the case for the Guardian wrote ‘[t]he claim by Mau Mau veterans for abuses suffered 50 years ago challenges not only the foreign office, but the British people’s narrative of their imperial past.’44 In response to the claims, the FCO denied legal liability and attempted to prevent the claim from proceeding to a full trial. In fact, the FCO did not deny that ‘if the claimants’ allegations are well founded, they would have had proper claims at the time against the perpetrators of the assaults (…). The issue is whether a claim can
41 Engelhart, ‘Britain Goes to Trial’ (n 34). 42 David M Anderson, ‘Mau Mau in the High Court and the “Lost” British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?’ (2011) 39 The Journal of Imperial and Commonwealth History 699, 701. 43 Bennett, ‘Soldiers in the Court Room’ (n 40) 721, 722. 44 Ian Cobain, ‘The Mau Mau May Rewrite the History of the British Empire’ The Guardian (28 October 2012)
13 properly be brought now against Her Majesty’s Government in the United Kingdom.’45 In short, the lawyers of the FCO argued that the claim was (i) brought against the wrong government and (ii) brought too late. The first argument was dealt with and dismissed in 2011. Then, the FCO filed a second application to have the issue of statutory limitation tried as a preliminary issue. This question was dealt with in 2012. It is important to keep in mind that the principal issue at stake in this phase of the proceedings was not the legal liability of the British government, but whether the claimants had brought an arguable claim and whether this claim was time-barred, in order to decide whether the claims could proceed to full trial. Although at first sight these issues may seem mere legal technicalities, a closer examination shows that the debate over the preliminary questions was not only a legal battle but also a battle over history. Below, I will examine the interactions between law and history with regards to both issues in turn. Since the issue of statutory limitation has also played a major role in the second case study, the emphasis in this chapter will be on the first judgment of 2011.
The British government as defendant: local excesses or common design? The first hearing at the High Court of Justice in London (hereafter: ‘High Court’ or ‘the Court’) took place in April 2011. In this hearing the presiding judge, Judge McCombe, had to decide ‘whether the claimants have a viable claim in law, and on the facts as presently known, against this defendant representing the UK Govern- ment.’46 Underlying this technical legal vocabulary loomed the fundamental question whether the present-day British government could be held responsible for the fate of Kenyans at that time, or rather whether the claimants had made an arguable case that it did. Arguing that London had been profoundly involved in the events during the Emergency, the claimants deployed various doctrines of tort law to link the actions of local colonial officers with the government in London. Due to the limited space
45 Mutua v FCO, 2011 (n 37) [2] [emphasis added]. 46 ibid.
14 available in this essay, I will only address the second and third heads of the claim, as these have incited most historical debate.47 The individual cases of mistreatment were to be considered under both the constitutional structure and the administrative, military and security structures in place between 1952 and 1962.48 The FCO essentially argued that it could not be held liable for officers in service of the colonial administration (as a separate and distinct entity) and that, if at all, the claims should have been brought against the present-day Kenyan government. As Judge McCombe summarized the FCO’s position, ‘all that was done in Kenya and in London, by British politicians, diplomats, civil servants and soldiers, in the context of the present case, whether by way of instruction, formal or informal, or by giving advice, was done as part of the machinery and operation of the Colonial Government of Kenya, not as acts of the UK Government.’49 The claimants, on the other hand, although they acknowledged the separate nature of the colonial administration, submitted that this did not resolve the British government of its own, separate and distinct liability.50 They argued that even though the colonial government had administered the camps, it was not possible to “airbrush” the British government from the picture.51 Leigh Day’s lawyers endeavoured to paint a picture in court that portrayed the violence experienced by the five claimants as ‘not merely some accident or the product of a single ‘rotten apple’, but rather symptomatic of a wider policy’52, for which the then British government had also been responsible. For demonstrating such a policy, they relied upon the principles of joint liability for torts (in casu assault and battery).53 They submitted that the British government was jointly liable for having been complicit in the creation and maintenance of “a tortious system”,
47 The other heads of the claim alleged transferal of liability upon independence in 1963 (1), liability as a result of a instruction, approval or authorization of a particular treatment after 1953 (4), and negligence (5). ibid 13. 48 ibid 10. 49 ibid 58. 50 ibid 11–12. 51 ibid 27. 52 Bennett, ‘Soldiers in the Court Room’ (n 40) 720. 53 Mutua v FCO, 2011 (n 37) [115].
15 either through the British Army or through the Colonial Office. 54 The legal concept of joint liability in the English common law requires ‘concerted action’; the res- pective shares in the commission of the tort have to be done in furtherance of a common design.55 Accordingly Mr. Hermer, one of the claimants’ lawyers, stated in his oral submission: ‘We say in fact there was a common design to commit torture’.56 The concept of joint liability enabled the claimants to acknowledge the formal constitutional structures in place and to emphasize the structural nature of the torture at the same time. It should be noted that the British Empire, which at its height occupied a quarter of the world’s continental surface, was indeed character- ized by ‘the looseness of its decentralized control’. 57 Local officers had always been given much freedom in managing the administration and decision-making in the colonies, which given the size of the Empire and the vast differences between colonial territories made sense.58 The concept of joint liability, however, pulled the focus away from the actual perpetrators of torture, and towards the system that led to the specific torts. This shift also turned the testimony of the claimants from stories of individual suffering into components of a greater narrative of systematic abuse. The FCO accepted in its written submissions that if such a system existed, then in certain circumstances liability on the part of the British government could follow. These circumstances however, the FCO argued, ‘required proof of far more than violence that was widespread and frequent’, a point which it illustrated by drawing ‘a useful historical parallel’ that referred to the policy directives of the Wannsee Conference of January 20th, 1942. Such historical insensitivity was not lost to the judge, who commented that he ‘must admit to personal surprise and regret, wherever legal liability may lie, that one reads about what happened in this British Colony so soon after the lessons of that historical parallel ought to have been well learnt.’59
54 The Colonial Office was the center of imperial governance in London, and responsible for the vast majority of British colonies. 55 Mutua v FCO, 2011 (n 37) [115]. 56 ibid 117 fn 17. 57 Elkins, Imperial Reckoning (n 26) 7. 58 ibid. 59 Mutua v FCO, 2011 (n 37) [117] fn 18.
16 For the Court, now, it came down to the assessment of a large bulk of historical documents submitted as evidence, an amount that, as we will see, increased substantially during the proceedings. Each party inferred from these documents different arguments that they said should govern the Court’s factual conclusions, and accordingly provided the Court with very different accounts of the involvement of the British Army and the Colonial Office in the detention system in Kenya.60 The presentation of these two rival historical accounts in court illustrates a complex encounter between law and history. To this I will now turn.
Paradigm of evidence: historians as experts about the past Apart from the claimants’ own accounts, their case was primarily structured on the expert testimony of three academic historians.61 In 2005, Professor Caroline Elkins (Harvard University) and Professor David Anderson (University of Oxford) had simultaneously published two ground-breaking studies on the Kenyan Emergency: Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire (Anderson), and Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Elkins). These two books were complemented in 2007 by a publication by Huw Bennett. Professor Anderson, Professor Elkins and Dr. Bennett each served as an advisor and expert witness for the claimants. They were three revisionist historians who had challenged the official narrative of British involvement during the Emergency in their academic works and who would continue to do so in court. The participation and role of historians in legal cases has been a topic of continuous debate. Amongst historians, a well-known critic is Henry Rousso, who refused a request to serve as an expert witness for the defence in the trial of Maurice Papon. In a letter to the court in which he asked to be exempted from testifying, he wrote: ‘In my soul and conscience, I believe that an historian cannot serve as a ‘witness’, and that his expertise is poorly suited to the rules and objectives of a judicial proceeding.’ 62 Amongst other things, Rousso is hesitant towards the
60 ibid 36; Mutua v Foreign and Commonwealth Office [2011], Summary of Judgment [7]. 61 Mutua v FCO, 2011 (n 37) [35]. 62 Letter by Henry Rousso to the President of the Bordeaux Assizes Court, as quoted in Wilson (n 6) 7.
17 participation of historians in trials because there their evidence is restricted by the rules of legal procedure, which limits their professional autonomy.63 In (inter- national) criminal proceedings, historians have frequently been invited to provide expert testimonies on the broader historical contexts, in order for the court to connect such contexts with the actions of individual perpetrators. 64 Legal proceedings, however, require definite statements, and thus, as Stiina Löytömäki observes, this implicates ‘that what is expected from historians in court is really that they deliver the ‘truth’ about the past’.65 Rousso on the other hand ‘maintained that the historian could not describe “what had happened”, but only attempt, on the basis of available traces and navigating “between islands of established truths in an ocean of uncertainty”, to reconstitute a plausible account of events.’66 How did such concerns play out in the Mau Mau case? On October 18th, 2010, Judge Tugendhat severely restricted the scope of the role that the claimants had proposed for Professor Elkins, and decided that she would not be allowed to provide ‘evidence which is opinion as to the merits of the case or any particular issue.’67 A few months later, Judge Langstaff elaborated on this:
Plainly she makes efficient the process of identifying documents and material. It is important that I should remind myself that that is essentially her role. Her evidence has no particular value in this case, other than to identify relevant documents or to identify relevant witnesses who may be able to give effective and important testimony. Her position is very different from that of a witness who has herself directly seen something happen. It is also very different from the traditional role of an expert witness.68
63 Henry Rousso, The Haunting Past: History, Memory, and Justice in Contemporary France (University of Pennsylvania Press 2002); as discussed in Löytömäki (n 2) 54 and ; Evans (n 4) 330. 64 Bilsky (n 4) 127. 65 Löytömäki (n 2) 55. 66 Nancy Wood, ‘Memory on Trial in Contemporary France: The Case of Maurice Papon’ (1999) 11 History & Memory 41, 54. 67 Mutua v FCO, 2011 (n 37) [35]. 68 ibid.
18 Although the definite status of the historians’ statements and evidence remained to be determined at full trial, the preliminary proceedings indicate that the proper role of historians in this legal action was no foregone conclusion. Regular expert witnesses in civil litigation in the UK are expected to provide the court with opinion evidence on matters within their expertise, but the historians in the Mau Mau case were expressly not permitted to provide opinions.69 The case, however, apparently meets some of the concerns addressed by Rousso, at least to a certain extent. First, the instructions for the historians in effect circumscribed their role in a manner that was in line with their own methodology regarding the identification of sources, and only deviated from it insofar as they were to provide no analysis or interpretation.70 Limited to matters of fact (without adding opinions), the historians principally referred the Court to relevant files and thus were prevented from presenting a specific interpretation of the past as ‘true’.71 Nonetheless, their resulting efforts do demonstrate a divergence between legal and academic historiographical reasoning. For example, Professor Elkins was instructed by the Court for her first statement to explain the documentary material, and in response delivered a witness statement that was ‘in effect, a trimmed-down version of Imperial Reckoning, devoid of indeterminacy, technical in its reference to archival documentation throughout, and such as it is possible, devoid of interpretation.’72 This transformation of a historiographical work into legal evidence is illustrative of the methodological dif- ficulties of the encounter between the two disciplines in the courtroom. Second, the standard of proof in civil law is more akin to the manner in which historians frame their conclusions. Evans notes that ‘criminal law tackles historical problems on a narrow front, focusing on the attempt to prove a case beyond reason- able doubt rather than dealing in the broader frame of probabilities, as historians habitually do.’73 Quite differently in the Mau Mau case, at full trial the Court would have to assess whether the claimants met the burden of proof, which in civil
69 Civil Procedure Rules 1998 PD 35 (Experts and Assessors) 2.2. 70 Elkins, ‘Alchemy of Evidence’ (n 2) 741. 71 See for instance Huw Bennett, ‘Witness Statement No. 1’ (18 February 2010) para 3. 72 Elkins, ‘Alchemy of Evidence’ (n 2) 740–741. 73 Evans (n 4) 330.
19 litigation is the balance of probabilities. Establishing a case on the balance of probabilities means that the claimants’ position is most probably true, i.e. more probable than the position advanced by the other party. This involves a lesser degree of certainty, with which historians are more comfortable. Certainly, however, the loss of professional independence lamented by Rousso was also a struggle for the historians in the Mau Mau case. In an article in which Professor Elkins reflects on her participation in the case, she notes that ‘[h]istorical experts […] must parse down facts and narrative complexity, and with it render the past understandable vis-à-vis the positivist legal scrutiny of intentions and actions.’74 By taking pains to carefully distinguish their own role from that of the historians, the judges did enable the legal process to conduct historical inquiry whilst safeguarding the position of the judge. They made clear that the final interpreter of the past would in this case be the court, and not the historian:
At any trial, perhaps assisted by historical expertise in identifying relevant materials and understanding their full context or perhaps not, it would be for the court (and not for the witnesses (expert or otherwise)) to read the documents presented, draw all necessary inferences from them and make the findings of primary fact, for example, as to the respective roles of the Colonial Government, the British Army and the UK Government.75
The archive that witnessed everything The Mau Mau case took an unexpected turn in January 2011, just a few months before the beginning of the first hearing. For building their case, Leigh Day’s lawyers had been looking for documentary evidence of systematic British involve- ment in torture during the Kenyan Emergency, evidence ‘that would corroborate and elaborate the statements made by the four claimants’.76 They had filed a Freedom Of
74 Elkins, ‘Alchemy of Evidence’ (n 2) 732. 75 Mutua v FCO, 2011 (n 37) [36]. 76 Anderson, ‘Mau Mau in the High Court’ (n 42) 706. One claimant died during the course of the proceedings, so they by now had become four.
20 Information-request as early as 2006, upon which the FCO replied that all existing files had already been transferred to the National Archives ‘and so is in the public domain’.77 At a preliminary hearing in 2009, Leigh Day’s lawyers pushed for a full disclosure of documents relating to the Emergency period, upon which the Court ruled ‘that the FCO should make a full disclosure of all documents in their possession relating to the case’.78 Such an order should be understood in the context of the common law system, where the gathering of evidence in the pre-trial phase of civil litigation is established through the process of “disclosure”. The procedure of ‘standard disclosure’ compels a party to disclose all documents in its possession and to allow the other party to inspect those documents, regardless whether those documents adversely affect its own case. The procedure furthermore requires the party to make a reasonable search for documents within its control.79 This is quite distinct from civil law legal systems, in which pre-trial disclosure obligations are generally absent.80 The FCO’s Desk Officer for Kenya, Edward Inglett, sought to comply with the disclosure obligations by inquiring with the FCO’s records management staff in various offices, but got no positive response. Thus, the FCO communicated to the Court that it no longer held any files that were relevant to the case.81 In response, the claimants submitted a witness statement of Professor Anderson, in which he drew the Court’s attention to certain gaps in the official records. Such gaps had been long known to historians, yet it had generally been assumed that the missing documents had been destroyed upon British withdrawal from Kenya.82 According to Anderson, however, there were indications of remaining documentary material on the ad- ministration of detention camps, a ‘category of record’, he added, that ‘has been
77 Anthony Cary, ‘The Migrated Archives: What Went Wrong and What Lessons Should We Draw?’ (FCO 2011) para 32
21 systematically withheld from the archive.’83 Anderson referred to a minute that allegedly gave information about a ‘cache of documents ‘retained’ from Kenya. It is said to comprise over 1500 files, in three hundred boxes taking up some 100 linear feet of shelving.’84 These 1500 files will hereafter be referred to as the ‘Kenya papers’. Under the pressure of the pending legal proceedings, Desk Officer Inglett again pressed the FCO records management staff to search for the files. This time he ‘expressly pointed out … that failure to disclose documents might be viewed as obstructionist and therefore construed to imply culpability.’85 Somewhat later, the staff finally announced that they had found the Kenya papers, in a high-security complex at an old estate in Buckinghamshire, named Hanslope Park. Before long, the Kenya papers proved to be part of a batch of more than 8,800 files that were shipped to Britain over 30 years of withdrawal from the Empire, and that contained information and reports covering 37 former colonies, including Cyprus, Palestine, Rhodesia, Malaya, Uganda and Hong Kong. These files became known as the “migrated archives”. Anthony Cary, who was appointed by the FCO to look into the circumstances surrounding the migrated archives, explains in his report that when British territories became independent, as a general rule the successor governments were not to be given papers which, among other things, might embarrass Her Majesty’s government or members of police, military forces or public servants. Such documents were either destroyed or shipped back to the UK.86 Altogether, Hanslope Park revealed to contain an estimated 1.2 million non-public files, not only including the migrated archives but also subjects ranging from the 1850s Crimean war to slave trade correspondence, Soviet KGB spy reports and Cold War propaganda.87 It is hard to overestimate the importance of the discovery of the files at Hanslope Park (hereafter: ‘Hanslope Disclosure’) for both the pending court case and
83 David Anderson, ‘Witness Statement No.1’ (21 December 2010) para 18. 84 ibid 13. 85 Anderson, ‘Mau Mau in the High Court’ (n 42) 708. 86 Cary (n 77) paras 3–4. 87 Katie Engelhart, ‘Will the UK Government Ever Release These Secret Files to the Public?’ Vice (14 May 2014)
22 the historiography of the Empire. Hanslope Park contained much material that ‘ran counter to the official narrative in the United Kingdom that the Empire was about the spread of “British values,” that is, of the rule of law, “civilization,” and demo- cracy.’88 According to Professor Anderson, the Hanslope Disclosure – a direct consequence of the legal proceedings - generated files that could significantly revise the history of British decolonisation.89 Above all, the Hanslope Disclosure once more confirms that history is always written by the winners, and also demonstrates that archives, just like witnesses, are capable of selective memory. Of course, the FCO was strongly criticized for withholding these documents from the public domain for more than half a century, and, as one writer noted, it is ‘difficult to overestimate the legacy of suspicion among historians, lawyers and journalists about the … archive.’90 Yet, in the context of the pending case, the weight of the unfolding events was to be determined by legal procedure, and Judge McCombe emphasized that such condemnation did not have any legal significance:
Criticism of late disclosure of papers by the UK Government is and would be misplaced in so far as it is based on a misunderstanding of the court rules and procedures. If criticism is based on the failure to make documents available in the public archive earlier than was achieved, this is not a matter for the court.91
Historians versus lawyers: historical narrative in legal argument As stated above, the two parties in the case had submitted two very different accounts of British involvement during the Emergency, both building on the historical record. Therefore, for their second witness statement the historians had been asked by Leigh Day to review and rebut the factual part of the FCO’s argument with archival evidence.92 Besides pointing out historical inaccuracies in the FCO’s
88 Balint (n 34) 263. 89 Anderson, ‘Mau Mau in the High Court’ (n 42) 714. 90 Badger (n 81) 799. 91 Mutua v FCO, Summary of Judgment (n 60) [6]. 92 Elkins, ‘Alchemy of Evidence’ (n 56) 743.
23 story, the historians attacked the FCO’s limited understanding of historical methodology in order to refute the narrative presented by the FCO. For instance, Professor Elkins discredited the defendant’s factual account as ‘a reflection of a piece of historical writing that results from a cursory and partial reading’ of the available documentation.93 She criticized the FCO for presenting ‘hand-selected documents’94, and described its argument as ‘highly selective in its use of publically available information, and … reflective of a narrative that was potentially plausible some five years ago, but which … is no longer tenable in the scholarly arena.’95 ‘In effect’, she wrote in her witness statement, ‘the argument, as deployed here by the Defendant is one that follows a narrative deployed by the British colonial government at the time of the Emergency.’96 A similar view was expressed by Dr. Bennett, who rejected the FCO’s historical analysis as ‘one sided and incomplete’, with events being reconstructed on the basis of a ‘selective and incompetent reading of the available documentation and little knowledge of the historical context and without full appreciation of the range of sources and evidence which are available’.97 Professor Anderson furthermore considered it necessary to comment on ‘the flagrant misrepresentation’ of his own published work in the FCO’s statement.98 Thus, the legal proceedings provided a space in which revisionist historians could directly challenge the official narrative of the decolonization. By criticizing the FCO’s argument as lacking any serious historiographical foundation, they managed to cast sufficient doubt upon the governments’ narrative of the Kenyan Emergency for the purposes of the preliminary proceedings. Judge McCombe noted that, al- though at this stage of the proceedings he was not able to conclude whether these criticisms were correct or not, they could not be dismissed out of hand and ‘the possibility must be recognized that the evidence in the end may justify the court in
93 Caroline Elkins, ‘Witness Statment No. 2’ (1 April 2011) para 16. 94 ibid 17. 95 ibid 9. 96 ibid. 97 Huw Bennett, ‘Witness Statement No. 2’ (1 April 2011) para 4. 98 Anderson, ‘Statement No. 2’ (n 25) para 36.
24 drawing inferences similar to those drawn by the historians.’99 Although it can only be speculation how this would have turned out at full trial, the deployment of historiographical expertise to discredit the FCO’s story did result in a victory for the claimants’ in the pre-trial phase, convincing the judge to take ‘the claimant’s factual case at its highest.’100 The historians furthermore directly questioned the ability of the FCO’s lawyers to conduct historical inquiry with regard to the release process of the Hanslope files. They expressed concerns about the fact that the process of identifying and reviewing relevant files among the disclosed Kenya papers was controlled by the FCO and its legal team, or, as Dr. Bennett expressed it, ‘by those who have little understanding of the historical context’.101 According to Professor Anderson, the release process was not only conducted slowly, but also in a manner that was ‘not how a professional historian would approach such materials’. 102 Rather than organising the documents systematically around specific issues or themes - as an historian would do in order to construct a narrative of events and to explain causal relationships - the FCO reviewed the files in an a apparently random manner that was far astray from historical methodology.103 Accordingly, Professor Anderson des- cribed his study of the incoming documents ‘like reading a novel with the pages all in the wrong sequence.’104
The colonial power may go to trial Based on his preliminary assessment of the available evidence, Judge McCombe concluded that, although a stark evidential dispute existed about role of the British government in the alleged abusive system, there was ample evidence suggesting possible systematic torture of detainees and that it was impossible to rule out that such torture had been committed ‘pursuant to a “common design”’.105 He accepted
99 Mutua v FCO, 2011 (n 37) [38]. 100 ibid. 101 Bennett, ‘Statement No. 2’ (n 97) para 3. 102 Mutua v FCO, 2011 (n 37) [7]. 103 Anderson, ‘Statement No. 2’ (n 25) para 7. 104 ibid. 105 Mutua v FCO, 2011 (n 37) [125].
25 that the British government was, as a separate entity, ‘capable of pursuing its own ends in the Emergency in Kenya and capable of participating in its own right in the instigation of a system such as that alleged.’106 According to the judge, the evidence suggested that the UK, as the colonial power, played a ‘hands on’ role in managing the Emergency, rather than ‘standing aloof’.107 He accordingly allowed the claim to proceed to trial.
Documents versus witnesses: a fair trial on history After its legal defeat in the first round of hearings, the FCO argued that the claims were time-barred - a well-expected argument, since the time limit in the UK for bringing a civil action for personal injuries is three to six years.108 Besides protecting people from being continuously at risk of having to defend themselves against old claims, limitation periods also apply because the passage of time reduces chances for the court to penetrate into the factual core of a dispute.109 Evidence may no longer be available; memories of witnesses will fade or become confused. 110 Indeed, Martin Day, one of the lawyers for the claimants in the Mau Mau case, recalls in an interview that when he started working on this case, he was not at all optimistic about their chances:
We just didn’t have the documents. It was a nightmare. Old Kenyans in their late seventies and eighties. … We were really worried that the judge would say that there can’t be a fair trial, because actually these witnesses are so old, so up and down just in terms of their memories, that really the evidence isn’t worth a great deal.111
106 ibid 131. 107 ibid 132. 108 Limitation Act 1980 c.58 1981 s 11(4). 109 Neil Andrews, English Civil Procedure: Fundamentals of the New Civil Justice System (Oxford University Press 2003) 302. 110 Sime (n 92) 52. 111 Radiolab (n 32).
26 In the second round of legal action, the FCO argued that due to the passage of time it faced ‘irredeemable difficulty’ to defend the claim, and that a fair trial was thus no longer possible.112 It emphasized that the issues identified by the claimants went ‘to the heart of policy making at the highest level’113, and argued that the system that the claimants alleged would have to be established from the bottom to the very top of the United Kingdom.114 According to the FCO, a fair trial would require the directing minds of the British and colonial administration to respond with oral testimony to the inferences that the claimants had drawn from the documents. The majority, however, of those on its side who might have given material oral evidence were now dead.115 The claimants, on the other hand, admitted that many, but by no means all of the principal actors were now dead or unlikely to provide evidence at trial.116 They contended that many key witnesses were still alive and moreover that the central issues likely to be in dispute were of such a nature that they could be determined by primary reliance upon documentary rather than oral evidence. Irrespective the passage of time, they argued, a fair trial remained possible and the judge should therefore exercise his discretionary power under the Limitation act to allow the case to proceed to trial.117 Crucially, at a certain moment during the second hearing, the FCO acknowledged the fact of the mistreatment of each of the surviving individual claimants. At the outset of their cross-examination by the defence, Mr Mansfield for the FCO ‘stated expressly that the defendant did not dispute that he or she had suffered torture and other mistreatment at the hands of the Colonial Administration … There remains, therefore, no outstanding issue as to the fact of those claimants’ injuries and the manner of their infliction, although legal responsibility on the part of Her Majesty’s Government in the United Kingdom remains hotly contested.’118 It is
112 Ian Cobain, ‘Mau Mau Veterans Launch Second Round of Legal Action’ The Guardian (16 July 2012)
27 worth elaborating here for a moment. The acceptance in court by the FCO’s lawyers that colonial officers had in fact tortured these claimants was as such a significant revision in the official account of the decolonization period, as it was the first time that the British government publically accepted that the colonial regime was respon- sible for torturing Kenyan individuals during the Emergency. Rightly so, Leigh Day spoke of an ‘historic turn of events’.119 In legal terms, this meant that the substance of what happened to the individual claimants was no longer in dispute, and thus they were no longer compelled to provide the Court with evidence regarding their injuries.120 Since the government continued, however, to deny legal liability for the mistreatment, the acceptance did not alter the question of the roles of the Colonial Office and the British Army, and it was with regards to these latter questions that the High Court now had to determine whether a fair trial on the facts, more than 50 years later, remained possible. Here, the claimants argued, the documents in Hanslope Park demonstrated clear complicity of London in the abuse of detainees, but the FCO firmly maintained that ‘the documents demonstrate more than one side to the story’ and that this story could only be completed at trial with witnesses from the highest governmental and military ranks ‘who could explain the background to what had been written at the time’.121 The question whether a fair trial on these facts remained possible despite the passage of over 50 years since the actual abuses directly bears on the limits of judi- cial processes in conducting historical inquiry. The effect of the passage of time on law differs from that on historiography, which is reflected in the procedural norm of statutory limitations. The FCO’s argument regarding the limitation period hence illustrates Evans’ remark that ‘what the law regards as evidence, and what historians treat as such, are in some respects two very different things.’122 One such respect is that historians are generally unable to cross-examine the author of a document to test its accuracy.123 As Rescher notes, law and history take very different approaches to a
119 Leigh Day (n 39) 6. 120 Mutua v FCO, 2012 (n 113) [27]. 121 ibid 59–62. 122 Evans (n 4) 333. 123 Wilson (n 6) 6.
28 witness’ testimony, as ‘law very deliberately tries to get almost wholly down to first- hand sense impressions’ whereas ‘the historian … has no hesitancy about utilizing reports that fall far short of the ideal of first-hand accounts’.124 The FCO’s argument on the unfeasibility of a fair trial without oral testimony should, however, also be understood in the specific context of the common law system, in which oral evidence plays a major role. In English civil procedure, emphasis is placed traditionally on evidence provided by witnesses - testifying under oath and subject to cross- examination - whereas documentary evidence may be subject to various restric- tions.125 Quite different from the practice in civil law systems, where written evidence prevails over oral evidence, common lawyers will often expect documents to be authenticated and explained by the testimony of a witness.126 On the 5th of October 2012, however, the judge for a second time dismissed the FCO’s arguments, stressing that in his opinion, ‘the difficulties advanced by the defendant … are more illusory than real’127. The judge noted that the governments and military commanders seemed to have been ‘meticulous record keepers’, and moreover held that the FCO had not adequately taken into account potential wit- nesses of lower ranks of authority who could supplement its case.128 The large amount of available documentary material would enable the trial court to assess whether the alleged “system” had existed and if the United Kingdom had been a party to that system, and in case documentary evidence would be unclear and oral evidence lacking the claimants would lose anyway on the burden of proof. Accordingly, he held a fair trial on the question of joint liability to be fully practicable.129 After years of legal struggle, the Mau Mau claimants thus won the right to take the British government to a full trial – a significant victory. Thereafter, over the summer of 2012, Leigh Day, the KHRC and the MMWVA together identified 5,228
124 Nicholas Rescher, Essays in Philosophical Analysis (University of Pittsburgh Press 1969) 219, 221. 125 Pejovic (n 20) 832. 126 SH Elsing and JM Townsend, ‘Bridging the Common Law-Civil Law Divide in Arbitration’ (2002) 18 Arbitration International 59, 61. 127 Mutua v FCO, 2012 (n 113) [76]. 128 ibid 94–95. 129 ibid 97–100.
29 Kenyans with strong evidence of having suffered torture during detention, who could bring similar cases against the British government. Although the FCO initially announced it would appeal the verdict, on the 6th of June 2013 it announced that the government had reached a settlement agreement with Leigh Day for the firm’s 5,228 clients. The settlement included the payment of compensation to the 5,228 Kenyans with a total value of £19.9 million, the construction of a memorial in Nairobi to the victims of colonial-era torture and ill treatment, and an official statement of regret from Foreign Secretary of State William Hague, both in Nairobi to the victims in person and in Parliament in London.130 In his latter statement, Hague informed the public that ‘for the first time … the British Government recognises that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British Government sincerely regrets that these abuses took place …’131 Yet, Hague also explicitly emphasized that the government would continue to deny legal liability.
Epilogue The successful preliminary proceedings in the Mau Mau case opened the door for a “second Mau Mau case” in the UK courts. This second case involves a far larger class action, encompassing claims of over 40000 Kenyans who claim they were un- rightfully left out of the compensation scheme. Over 1500 claimants have passed away since the start of the proceedings. At the time of writing, the presiding judge is examining 27 test cases, which encompass a wider range of allegations including forced labour and wrongful detention. The second Mau Mau case has been described as a “marathon trial” that is expected to run far into 2018.132 During the proceedings, the FCO’s leading lawyer has stressed that ‘litigation on such a scale should not be “a historical inquiry into the events that occurred in Kenya at the end of the colonial era” … but required “each of the claimants [to] prove their claims to the satisfaction
130 Leigh Day (n 39) 8. 131 Foreign & Commonwealth Office, ‘Statement to Parliament on Settlement of Mau Mau Claims’ (6 June 2013)
30 of the court.”’133 This case will probably illustrate the many difficulties involved with reconstructing a distant history in the setting of a civil trial. The FCO’s cross- examination of the first witness, the 81-year-old Mugo Kibande, illustrates this: ‘If you didn't personally see your father shot, how do you know he was shot? Are you sure that the shooter was a white soldier? Couldn't it have been a black man?’134 The legal and historical prospects of success for this case thus remain to be awaited.
133 Owen Bowcott, ‘Claims of Maltreatment in Mau Mau Rebellion “Cannot Be Fairly Tried”’ The Guardian (25 May 2016)
31 32
PART II: THE INDONESIA CASES
‘The discussion constantly gets jammed up on the use of the words “excesses” and “war crimes”. 135 Once these words have fallen, afterwards it only is about definitions.’ - Maarten Hidskes
Dutch colonialism in Indonesia and the decolonization war Dutch occupation of what is now Indonesia started when the Dutch East India Company took control of the coast of Java in the 17th century. In 1800, when the company went bankrupt, it was nationalised and the areas it controlled were passed onto the Dutch state and named the Dutch East Indies. In the late 19th century, outlying islands were also subjected to Dutch authority. Over 300 years of Dutch colonial rule only came to an end with the invasion by the Japanese in 1942. Two days after the capitulation of Japan on August 15, 1945, the Indonesian nationalist leaders Soekarno and Hatta proclaimed the Indonesian Republic, which the Dutch government did not recognise. Although the Dutch authorities initially expected a quick return to restore power in ‘their’ colony, they had underestimated the societal changes resulting from the years under Japanese rule. Not only had the Dutch lost esteem after its army was rapidly defeated and its ruling elite was locked up in detention camps, the Japanese had eliminated all Dutch elements, such as language and statutes, from society, and militarised a great number of Indonesians through training camps and political organisations with an anti-colonial, anti-Dutch spirit. 136 The Indonesian independence movement hence underwent a major transformation, and growth, in those 3,5 years. The power vacuum caused by the Japanese capitulation resulted in a chaotic and violent revolutionary phase, referred to as the ‘Bersiap’137, in which pro-Dutch civilians and groups were aggressively targeted. This strengthened forces in the Netherlands that called for a strong, military solution.138 When negotiations became
135 Maarten Hidskes, Thuis Gelooft Niemand Mij: Zuid-Celebes 1946-1947 (Atlas Contact 2016) 158 [translation by the author]. 136 Rémy Limpach, De brandende kampongs van Generaal Spoor (Boom 2016) 50–51. 137 Bersiap means ‘be prepared’ in Malay. 138 Limpach (n 136) 52–53.
33 deadlocked in the spring of 1947, a colonial war was already being prepared. The Dutch armed forces, weakened by World War II, were reinforced both by repatriating soldiers of the Royal East Indies Army (the colonial army, hereafter: the ‘KNIL’), who had been send to other places in Asia as Japanese prisoners of war, and by sending approximately 20.000 war volunteers and 120.000 conscripted soldiers for the Royal Dutch Army (the regular army) to the archipelago.139 On July 21, 1947, Dutch troops started off with a large-scale military inter- vention, euphemistically referred to as the ‘First Police Action’. During the interven- tion, which formally served to ‘pacify’ the conquered areas, the Dutch occupied large areas of strategic and economic importance on Java and Sumatra, but lacked both the military and administrative personnel to effectively control these areas. As repub- lican troops resisted with a fierce guerrilla war, the conflict escalated. A second large military campaign (the ‘Second Police Action’), took place between December 19, 1948 and January 5, 1949, during which Dutch troops conquered even larger areas, including the whole island of Java.140 Between and after these two large-scale military interventions on Java and Sumatra, numerous military actions took place during so-called ‘pacifying phases’. Tactics used by Dutch soldiers during these actions inter alia involved large-scale sweeps in which villages were ‘cleansed’ of revolutionary elements. In practice, this often implied mass shootings with high numbers of civilian casualties, particularly since the sweeps were regularly combined with the burning down of entire villages as collective deterrent and sanction measures.141 Especially notorious was Dutch military behaviour in the South-Celebes region, where the colonial administration answered heavy nationalist resistance with the imposition of martial law in December 1946. In the following months, a special unit of the KNIL, the ‘DST’, sent to restore law and order and to cleanse the island of nationalistic elements, embarked on a rigorous campaign of sweeps and mass summary executions.142
139 ibid 63–98. 140 ibid 55–58. 141 ibid 430–459. 142 ibid 247–323.
34 Eventually, mounting international pressure combined with increasing Indo- nesian attacks and resulting Dutch losses forced the authorities to acknowledge that the Dutch troops were fighting a lost cause, which led to an armistice on August 3, 1949, and finally to formal recognition of Indonesian independence in Amsterdam on December 27 of that same year.143
Rawagedeh and beyond: a brief outline of the Indonesia cases The saga of the ‘Indonesia cases’, as they have come to be referred to, started in 2008, when eight widows and one survivor of the massacre at Rawagedeh (now Balongsari) filed a civil claim for damages against the State of the Netherlands (hereafter ‘the State’) at the District Court of The Hague (hereafter ‘the District Court’ or ‘the Court’).144 They held the State liable for the damages they incurred as result of the unlawful execution of their spouses (and, in the case of the survivor, for sustained injuries) by Dutch soldiers in Rawagedeh.145 The village Rawagedeh, located in the Krawang (now Karawang) regency on West Java, was attacked by the Dutch military on 9 December 1947.146 Dutch soldiers executed a large part of the male population without any form of judicial process. Shortly after, the Rawagedeh massacre was investigated by the Committee of Good Offices on the Indonesian Question of the UN Security Council,147 which found that the Dutch military had not met with any resistance and that ‘not one weapon (firearm) was found on Indonesian prisoners or casualties (either dead or wounded)’, and hence concluded that the acts
143 ibid 56–59. 144 Below, I will use the old spelling when referring to specific places if an event took place before Indonesian independence was formally recognised by the Dutch government on December 27, 1949. Although in current academic writing the preferred geographical indication for the archipelago in the period between August 17, 1945 and December 27, 1949 often seems to be ‘Indonesia’, I will use the term ‘(former) Dutch East Indies’ for the reason that this is most in line with the wording in the judgments. 145 I will hereafter refer to the executions of the spouses and the shooting down of the survivor together as “the executions”. A second claim alleged that the State had acted unlawfully by failing to launch a proper judicial investigation and failure to prosecute the responsible Dutch soldiers. This chapter will deal with the part of the claim dealing with executions only. 146 A large part of the Krawang regency (a region of strategic economic importance, referred to in Dutch reports of the time as ‘our rice granary’) was occupied by the Dutch military during the ‘First Police Action’ in July 1947. Afterwards, peace did not return but the area became prone to a guerrilla war against the Dutch troops involving many small militias. See Limpach (n 136) 324. 147 The Committee had been involved as mediator between the parties in the conflict since mid-1947.
35 of the Dutch soldiers had been ‘deliberate and ruthless’.148 Army authorities at the time reported 150 deaths, a number later to be reproduced by the Dutch government. The surviving imam of Rawagedeh, however, had told the UN Commission that he had counted 433 bodies.149 In court, the State accepted the accuracy of the claimants’150 assertion that they were spouses of executed men and that the executions had been unlawful towards them as claimants, yet argued that they were too late to enforce their claims.151 Therewith, the dispute principally evolved around the issue of statutory limitations. In an historic judgment in 2011, the District Court ruled that the claims were in fact prescribed, but that invocation of the prescription period by the State was unacceptable according to standards of reasonableness and fairness, and accor- dingly held the State liable for the damages the claimants had incurred as the result of the execution of their husbands.152 The State did not appeal the judgment, and after negotiations the parties reached an out-of-court settlement, which included a sum of €20.000 in compensation for each widow and for the male survivor, and formal apologies. On July 13, 2012, another ten widows and five children summoned the State, claiming that their husbands and fathers had been unlawfully executed during Dutch military actions in the South-Celebes region (now South-Sulawesi) in 1946 and 1947. The State settled out-of-court with the widows in August 2013. Later that year, the government expressed that it was willing to ‘to treat similar cases similarly’, and announced a civil compensation scheme (hereafter: ‘the Scheme’) for widows of men who had been summarily executed and who found themself in a similar position as the widows of Rawagedeh. The State meanwhile maintained its position that the
148 United Nations Security Council, Committee of Good Offices on the Indonesian Question, ‘Report of the Rawahgedeh Observation Team’ (1948) UN Doc S/AC.1-/85 8. 149 ibid 6; See also Limpach (n 136) 333. 150 I will refer to those who filed the claims as ‘claimants’ rather than as ‘plaintiffs’, to ensure consistency with the previous chapter (in the judgments of the British High Court, the term ‘claimants’ is used). I thereby deviate from the unofficial translation of the Rawagedeh judgment by Guy Schuitemaker, which I have used for all quotations from the judgment in this chapter. The unofficial translation can be found here: http://www.liesbethzegveld.com/en/selection-of-cases/&c=14 151 Pels Rijcken & Droogleever Fortuijn, ‘Statement of Defense, Case List Nr. 2009/4171’ paras 1.3, 1.6. 152 ECLI:NL:RBSGR:2011:BS8793 [2011] District Court of the Hague 354119 / HA ZA 09–4171 [4.14,5].
36 claims were formally prescribed. The Scheme allows widows to claim damages out- of-court, although its practical implementation leaves much to be desired.153 Since 2013, hundreds of claimants have filed new cases, which currently are in various phases before the court. Broadly speaking, the claims can be divided into two groups. On the one hand, new claims have been brought to court by widows of executed men, who filed claims according to the Scheme but which were rejected by the State as ‘insufficiently probable’.154 On the other hand, claims have been filed by hundreds of children (‘child cases’) who were left out of the compensation scheme. While in 2011 the District Court ruled that the invocation of the prescription period was only unreasonable with respect to the widows, it reversed this ruling in 2015 in an interim judgment concerning South-Celebes, noting that it could not be sustained that the unlawful executions had affected the children of killed men less than it had their spouses.155 Two further cases were filed that do not fit within these categories, one concerning rape by Dutch military personnel, and another about torture during imprisonment.156 Apart from the legal defence regarding the prescription period, the State has put forward factual defences in each of the later cases, with complex evi- dentiary challenges for the claimants as a result. Below, I will first place the court case in the context of Dutch debate on the decolonization period. Thereafter, I will discuss the issue of statutory limitations in the Rawagedeh case, and assess how the debate in court on this issue relates to history. Subsequently, I will analyse the evidentiary issues in the cases that followed the Rawagedeh case, and thereby address the divergence between legal and historical
153 Bekendmaking van de Minister van Buitenlandse Zaken en de Minister van Defensie van 10 september 2013, nr. MinBuZa.2013-256644, van de contouren van een civielrechtelijke afwikkeling ter vergoeding van schade aan weduwen van slachtoffers van standrechtelijke executies in het voormalige Nederlands-Indië van vergelijkbare ernst en aard als Rawagedeh en Zuid Sulawesi 2013 (StCrt 2013, 25383-n1) [hereafter: ’Civil compensation scheme’]; See also van de Bunt, ‘Een Regeling Voor Weduwen van Slachtoffers van Nederlands Geweld in Indonesië’ (2014) 2014 Nederlandsch Juristenblad 3048; and Emilie van Outeren, ‘“Sympathieke” regeling levert stokoude weduwen nog niets op’ NRC
37 investigation. Finally, I will examine to what extent the legal proceedings have addressed the broader historical context in which the cases took place.
‘War crimes’ versus ‘excesses’: contesting the official narrative ‘Dutch State held liable for war crimes in Rawagedeh’ was the main message in Dutch newspapers after the judgment of the District Court in 2011.157 Technically, the State was held liable for damages resulting from unlawful executions, and the Court did not explicitly address whether these should be qualified as war crimes.158 The fact that the judgment was broadly interpreted as such, however, is significant in the Dutch context, where the term ‘war crimes’ has been scrupulously kept out of the official historical narrative. The authorities framed the decolonization war not as a war but as the suppression of an ‘armed uprising’, and Dutch warfare has been per- sistently referred to as ‘police actions’ instead of ‘military intervention’. Instead of ‘war crimes’, the government has always spoken about ‘excesses’. As historian Rémy Limpach has recently demonstrated, these euphemisms primarily served to downplay and disguise the mass violence committed by Dutch troops during the period.159
157 See for instance ‘Staat aansprakelijk voor bloedbad Rawagede’ De Volkskrant (14 September 2011)
38 The official position of the Dutch government regarding the behaviour of its military was formulated in the ‘Note on Excesses’ (Dutch: Excessennota, hereafter: ‘the Note’) in 1969. The Note was drawn up by the authorities in reaction to disclosures by former soldier Joop Hueting, who, in an interview on national tele- vision, proclaimed to have witnessed how Dutch soldiers committed widespread war crimes during the decolonization war, including mass violence against the civilian population and widespread torture during interrogations. According to Hueting, these were not incidents, but ‘the normal course of events’.160 Forced to react to these allegations, the government commissioned an inventory of violent ‘incidents’ found in the National Archives, formally intended to assess the nature and the scope of violence by Dutch troops. According to the Note, the deployment of Dutch troops had been necessary for the execution of their ‘pacifying task’, with which the Dutch intended to serve the interests of the local population. The final remarks to the Note, written by then Prime Minister Piet de Jong, concluded that the Dutch military overall had behaved correctly and that no systematic cruelty had taken place, however making a reservation regarding the conduct of the Special Forces and the military intelligence and security services. Although the government deplored that ‘excesses’ had taken place, such derailment should be understood in a context that was primarily defined by the guerrilla warfare of the enemy, which had incited sweeps and counter-terror by the Dutch troops. Moreover it attributed the respon- sibility for the ‘excesses’ to individual soldiers ‘who, due to various circumstances, had not been able to establish their attitude in a rightful manner’.161 As Rémy Limpach remarks, the term ‘excesses’ suggests that these had been stand-alone incidents, and thus that extreme violence by the Dutch military had not been
160 Interview with Joop Hueting, VARA (1969), NTR, ‘Nieuw onderzoek naar koloniale oorlog met Indonesië’ (Andere Tijden)
39 structural or systemic. Moreover, the choice for this term served to avoid sensitive comparisons with German and Japanese war crimes.162 The debate on excesses experienced a revival in 1987, when a leaked manu- script of renowned historian Loe de Jong’s 12-volume treatise The Kingdom of the Netherlands during the Second World War (commissioned by the government) entered the public domain. In its last volume, the epilogue, de Jong devoted a separate chapter to military violence during the decolonization war, which he had defined in the manuscript as ‘war crimes’. However, after public uproar and heavy criticism, especially from veteran circles, he changed the wording in the final version into ‘excesses’.163 Herewith, as Chris Lorenz remarks, any notion of ‘war crimes’ was deleted from the official Dutch history of the decolonization period.164 The official, euphemistic discourse has overshadowed both public debate and academic discussion. The military dimension of the decolonization conflict long remained underexposed in historical studies, with the issue of Dutch ‘war crimes’ described as ‘one of the greatest blind spots in the discipline’.165 In 2016, the dis- sertation of Swiss-Dutch historian Rémy Limpach was published, who empirically investigates in almost 800 pages the extreme violence during the decolonization war. He concludes that the official position of the government - which until today remains as expressed in the Note on Excesses - cannot be sustained, as his research demon- strates that Dutch troops committed mass violence on a structural basis and that certain units even did so systemically.166 Limpach explicitly denounces the term ‘ex- cesses’ and instead speaks of ‘mass violence’ or ‘extreme violence’. He explains that he refrains from using the term ‘war crimes’ in his study because this is a polarising,
162 Limpach (n 136) 29. 163 Loe de Jong, Het Koninkrijk der Nederlanden in de Tweede Wereldoorlog XII, Epiloog (Staatsuitgeverij 1988). 164 C Lorenz, ‘De Nederlandse Koloniale Herinnering En de Universele Mensenrechten: De Casus “Rawagede”’ (2015) 128 Tijdschrift voor Geschiedenis 109, 124. 165 Limpach (n 136) 20 [translation by the author]; See for an overview of historical studies that have investigated Dutch ‘excesses’ during the decolonization war: ibid 33–38. 166 Limpach explains that the difference between structural mass violence and systematic mass violence is that the latter is applied according to a fixed pattern and as a strategic weapon, although the line cannot always be drawn clearly. Limpach (n 136) 738.
40 legal term and ‘because it is often not possible for historians to step into the shoes of the judge.’167 The ‘war crimes’ issue gained renewed significance in the context of the Rawagedeh court case.168 The claimants told the Court that the executions were ‘part of the colonial policy of the State’, having returned to the Dutch East Indies after the capitulation of Japan with the sole purpose of restoring its authority in the colony in order to safeguard its economic interests, and that restoring this authority implied war.169 They argued that certain actions of Dutch soldiers in Rawagedeh should be qualified as war crimes, and that since international crimes are generally considered imprescriptible170 it followed that the civil claims founded on such crimes could not be prescribed.171 The State replied to this argument that ‘the fact that (in present-day understanding) crimes as committed in Rawagedeh do not become prescribed in criminal law’ did not entail any consequences for civil claims arising from those actions.172 With this statement, the State appeared to implicitly acknowledge that the actions of soldiers in Rawagedeh could in fact be qualified as war crimes, which is the first time it ever did so. The State continued, however, with the argument that the right to prosecute was time-barred anyhow, because the Dutch legislator had explicitly intended to exclude Dutch actions in the former colony from the scope of application of the act that eliminates statutory limitations for international crimes.173 The 1971 Act in principle only applies to future crimes, yet the legislature adopted specific provisions to include World War II crimes within its scope of application.
167 ibid 44–45 [translation by the author]. 168 It should be reminded that the first claims were filed with the court eight years before Limpach’s conclusions became public. 169 Böhler, ‘Memorandum of Oral Arguments (Claimants), Case List Nr. 2009/4171’ para 112. 170 International crimes are predominantly considered to be imprescriptible, which means that the possibility to prosecute those crimes does not expire (until the death of the perpetrator, of course). On the international level, this idea gained form with the adoption of the UN Convention on the Non- Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968), and later in the Rome Statute of the International Criminal Court (1998), which includes a provision on the non-applicability of statutory limitations. As extensively analysed by Ruth Kok in her dissertation, the majority of countries have adopted provisions in their domestic legislation that exclude statutory limitations for international crimes. See Ruth A Kok, Statutory Limitations in International Criminal Law (Universiteit van Amsterdam 2007). 171 Böhler Franken Koppen Wijngaarden, ‘Summons’ 27–28. 172 Pels Rijcken & Droogleever Fortuijn (n 151) para 3.3.19 [translation by the author]. 173 Wet nadere regels betreffende de verjaring van het recht tot strafvordering en uitvoering van de straf terzake van oorlogsmisdrijven en misdrijven tegen de menselijkheid 1971 (Stb 1971, 210).
41 As Ruth Kok explains, the same arguments used to justify the adoption of those provisions – the increasing availability of evidence, the on-going need for retribution, etcetera – were advanced in a reversed manner to refrain from adopting similar provisions providing for international crimes committed by Dutch soldiers in the former Dutch East Indies.174 The authorities’ desire to shelter Dutch actions from future prosecution in this way in effect provided a legal basis to the sentiment that these actions were morally distinctive from German and Japanese war crimes. The State’s argument in court indicates a hesitant change of perspective on Dutch military conduct during the decolonization war. According to historian Stef Scagliola, ‘the ultimately successful outcome of the civil case on behalf of the widows of Rawagedeh and the fact that the social pressure of the Indies-veterans had decreased (many had passed away in the meantime) created a public space in which using the term ‘war crime’ was now permissible.’175 This development was reinfor- ced by the publication of Limpach’s study, and on July 27, 2016, the Court explicitly denounced the euphemistic discourse that for long obscured debate on the de- colonization period:
‘In its previous verdicts on the liability of the State for the behaviour of Dutch military personnel in former Dutch-Indies in 1947-1949, the court has, following the terminology used in the Note on Excesses, spoken about ‘excesses’ of Dutch military personnel. The court has taken notice of the criticism expressed in the recent period by historians and the in present-day public debate on the use of this term. Therefore, the court will no longer use this term in this verdict, but speak of ‘misbehaviours’ of Dutch military personnel.’176
174 With regards to crimes committed in the former Dutch East Indies, members of Parliament pointed out that too much time had passed to collect reliable evidence and to meet the goals of punishment, such as retribution and rehabilitation. Kok (n 170) para 170. 175 Stef Scagliola, ‘Cleo’s “Unfinished Business”: Coming to Terms with Dutch War Crimes in Indonesia’s War of Independence’ (2012) 14 Journal of Genocide Research 419, 433. 176 ECLI:NL:RBDHA:2016:8635 [2016] District Court of the Hague C/09/472892 / HA ZA 14-1020 and C/09/472901 / HA ZA 14-1021 [4.4] [translation by the author] ; See also on that same day ECLI:NL:RBDHA:2016:701 (n 156); and ECLI:NL:RBDHA:2016:8642 [2016] District Court of the Hague C/09/483033 / HA ZA 15-201.
42 The challenge that the legal claims have posed to the official historical narrative has thereby been recognized, and legitimized, by the Court.
A ‘closed chapter in history’?177 The Rawagedeh case primarily evolved around the applicability of statutory limitations – in principle a rather technical legal issue – yet the issue touched upon important aspects of the State’s dealing with the decolonization period. After it was announced that the State Advocate would argue in court that the widows’ claims were time-barred, Dutch media reproached the State for adopting such a formal stance.178 ‘History simply does not become prescribed’, wrote, for instance, the newspaper NRC.179 As we will see, these words capture a fundamental difference between legal and historical attitudes towards the past, a difference that also infor- med the arguments advanced by the claimants and the State respectively. The core point of the State’s case was that there comes a moment that a line should be drawn under the past.180 For the State, that line had been drawn decades ago, and thus the events in Rawagedeh now belonged to the realm of history. 181 The claimant’s lawyer, however, stated that she did not at all consider the issue to be an historical problem, because on an individual level it was still of current interest.182 In the oral arguments, she maintained that time had not healed the wounds of the
177 Pels Rijcken & Droogleever Fortuijn (n 151) para 2.5.2. 178 See for instance Robert Bas, ‘Landsadvocaat: oorlogsmisdrijven in Indië zijn verjaard’ NOS (11 May 2010)
43 claimants, nor of society.183 This understanding thus situates the events in Rawa- gedeh in the legal ‘present’ rather than in the historical past. Such contradictory conceptions of what belongs to the past and what to the present have been analysed by Berber Bevernage, who argues that the way one conceives historical injustice is strongly dependent on the way one conceives historical time. 184 According to Bevernage, the temporal divergence between the ‘time of history’ [historical time] and the ‘time of jurisdiction’ [legal time] derives from their ‘respective emphasis on presence or absence and with the re- or irreversibility of the event at stake’.185 The discourse of jurisdiction assumes a rever- sible time in which the crime is ‘still wholly present and able to be reversed, annulled, or compensated’, whereas history ‘thinks of time as fundamentally irreversible’ and conceives the past as absent and inalterable. 186 Traditional historiography, as Bevernage shows us, therefore presumes a clear divide between past and present. 187 In law, the divide is perhaps drawn even more concretely, in the form of statutory limitations. It should be remarked that, in civil law, the prescription period is not automatically applied by the judge but needs to be invoked by the debtor.188 Through the invocation, the State thus knowingly placed Rawagedeh in a detached, inalterable past. According to the Court, however, ‘although these facts are old, these are still facts that refer to a period in the history of the Netherlands that has not yet been finalized.’189 The Court derived this remarkable argument from a discussion between the parties on the State’s extended restitution policy regarding financial claims of victims of World War II. The claimants had drawn the Court’s attention to the fact that the State refrained from invoking the prescription period in relation to such
183 Böhler (n 169) paras 49–50. 184 Berber Bevernage, History, Memory, and State-Sponsored Violence: Time and Justice (Routledge 2012) ix. 185 ibid 9. 186 ibid [emphasis in the original]. 187 Berber Bevernage, ‘Writing the Past Out of the Present: History and the Politics of Time in Transitional Justice’ [2010] History Workshop Journal 111, 116. 188 See also Liesbeth Zegveld, ‘Civielrechtelijke Verjaring van Internationale Misdrijven’ (Amsterdam, 13 November 2015) 9. 189 ECLI:NL:RBSGR:2011:BS8793 (n 152) 4.16.
44 claims, and moreover argued that the similarities between the facts and circumstances in both cases were remarkable.190 By not invoking the prescription period in relation to claims concerning restitution of stolen art, property, and finan- cial assets, the State had in effect demonstrated that it did not consider this period of history to belong to the distant past, but, to speak with Bevernage, rather to the ‘time of jurisdiction’, in which legal redress still remained possible. The State responded in court that the claims were not comparable, as its expanded World War II restitution policy was a goodwill gesture that had been the outcome of a political debate. The events in Rawagedeh on the other hand, the State continued, had also been subject to political debate, yet here the Dutch and Indone- sian governments had together ‘drawn a line under the shared and painful history.’191 Comparisons as made by the claimants between the behaviour of the Germans in the occupied Netherlands and the Dutch troops in the former Dutch East Indies have, moreover, historically been a particularly sensitive issue, described by Limpach as the ‘forbidden metaphor’.192 Such comparisons have not only always provoked sharp opprobrium from veteran circles, but are also generally a sensitive matter because the official narrative of the period is build on the nations’ role as victim, and not as perpetrator.193 The District Court broke with that tradition. According to the Court, from the expanded World War II restitution policy ‘it becomes apparent that the State in itself does not want to finalize that part of history of which both the executions in Rawagedeh as well as the injustice of the victims mentioned last, are part of. More- over, this concerns a period of history from which there are people alive still, who have been through this period and the facts in question.’194 The Court thus, as noted by Wouter Veraart, departs here from the official discourse in which (post-) colonial
190 Böhler Franken Koppen Wijngaarden (n 171) 30. 191 Pels Rijcken & Droogleever Fortuijn (n 151) paras 3.3.29-3.3.42 [translation by the author]; See also ECLI:NL:RBSGR:2011:BS8793 (n 152) [4.12]. 192 Limpach (n 136) 27. 193 ibid; See also Chris Lorenz, ‘Can a Criminal Event in the Past Disappear in a Garbage Bin in the Present? Dutch Colonial Memory and Human Rights: The Case of Rawagede’ in Marek Tamm (ed), Afterlife of Events (Palgrave Macmillan, London 2015) 234. 194 ECLI:NL:RBSGR:2011:BS8793 (n 152) [4.16].
45 injustice and injustice relating to World War II have been kept strictly separated.195 The Court’s considerations also indicate when, perhaps, the past truly belongs to the realm of historians. This question is especially relevant because - different from criminal prosecution, which naturally ends with the death of the perpetrator - civil claims can pass by way of hereditary succession.196 Perhaps when there are no more people who have been through the facts in question, the point is reached when, in the words of Schabas, ‘law recedes deeply into the background, when we assess the wrongs of the past without much reference to legal entitlements.’197
Civil claims, international crimes: a similar rationale The Court held that the prescription was concluded in 1952, yet that in the specific circumstances of the case invoking the prescription period would be unacceptable according to standards of reasonableness and fairness.198 Although the District Court dealt with the issue of statutory limitation exclusively on the basis of Dutch law, its reasoning in explaining this decision in fact bears much similarity to arguments that have internationally led to the elimination of statutory limitations for international crimes. 199 In the context of international crimes, Liesbeth Zegveld writes, several arguments have prevailed over the arguments that speak in favour of prescription. First, the seriousness of the crimes: the events are considered too serious to leave untried. Second, the principle of forgive and forget cannot be considered applicable to these grave crimes.200 As Schabas phrases the latter idea, ‘[l]aw acknowledges that with the passage of time, the issues grow cold, or perhaps we simply need to move
195 WJ Veraart, ‘Uitzondering of Precedent?: De Historische Dubbelzinnigheid van de Rawagede- Uitspraak’ (2012) 2012 Ars aequi 251, 255. 196 Zegveld (n 188) 16–17. 197 William Schabas, Foreword, in: Marrus (n 3) xiv. 198 Reasonableness and fairness is a general principle in Dutch civil law which’ standards may have, in exceptional circumstances, a derogatory effect, meaning that a binding contractual or statutory provision does not apply to the extent that this would create an unacceptable outcome. The old laws (applicable in this case) speak of the derogatory effect of the principle of good faith. Civil Code 1992 s 6:2; See also ‘Dutch Civil Law Legal System’
46 on. … However, we largely reject the idea when atrocities are concerned.’201 Furthermore, the most important procedural argument in favour of a prescription period, the disappearance of evidence and therewith the possibility of a fair trial, has also not been considered decisive in the context of international crimes. Amongst other things, Zegveld notes, in the case of widespread crimes the passage of time often generates more, rather than less evidence.202 She therefore questions whether there are good reasons that civil claims of victims of international crimes should remain subject to strict prescription periods. In the Rawagedeh case, the Court emphasized the extreme gravity of the facts, as well as the circumstance that the State had been familiar with these facts and its culpability for them from the very beginning. In strong terms, the Court condemned the State for nevertheless having assumed ‘a wait-and-see attitude’, with which it had ‘maneuvered itself into the position that leaves the matter unsettled.’203 Like international crimes, the seriousness of the wrongs committed thus weighted heavier than the arguments in favour of strict application of the prescription period. Limitation periods in civil law primarily serve to protect debtors from having to defend themselves against old claims whilst the passage of time has diminished the available evidence, but the Court noted that the State would not be affected in this manner since it had recognised both the executions and their unlawfulness.204 As we have seen above, the Court also held that the principle of forgive and forget could not be considered applicable in the case, and that this primarily became clear from the State’s own ambivalent attitude towards this period of the past.
Historical inquiry through civil litigation As noted in the beginning of this chapter, the struggle in court has not remained limited to the issue of statutory limitations, since in later cases of both women and children the State has also raised factual defences.205 In this section, I will address
201 William Schabas, Foreword, in: Marrus (n 3) xiv. 202 Zegveld (n 188) 7–8; See also Kok (n 170) paras 302–357. 203 ECLI:NL:RBSGR:2011:BS8793 (n 152) [4.15]. 204 ibid 4.18. 205 I limit myself here to examining the evidentiary problems that have arisen in the cases of the widows, although similar problems are found in the other cases as well. Because the passage of time
47 the cumbersome reconstruction of history in civil litigation when the facts are disputed. The women in question claimed to be widows of men that had been unlaw- fully executed by soldiers of the DST or other units of the KNIL in the period between December 1946 and April 1947 in the South-Celebes region. Although the State acknowledged that sweeps had taken place in South-Celebes during those months, and that the summary executions carried out during these sweeps had been unlawful, it called into question whether these particular women were in fact widows of unlawfully executed men.206 In short, the State called into question their capacity as a widow (thus the family relationship), and whether their husband had been summarily executed (thus the cause of death). The latter issue in particular has provided serious evidentiary problems for the claimants, and is worth a closer exam- ination since it illustrates the discrepancy between legal and historical methods of inquiry. The Court accepted as an established fact that mass executions took place during sweeps in South-Celebes, and then proceeded to list those executions that were relevant for the proceedings. 14th of January 1947, in the village Paré-Paré: 22 men executed, 1st of February 1947, in the village Galung Lombok: 364 men executed, etcetera.207 Yet, to legally establish that the claimants’ husbands had in fact been among these men proved, however, highly complex. According to the State, on the basis of the evidence provided by the claimants it could not be excluded with sufficient certainty that their spouses had not died because of other causes for which the State could not be held liable, emphasising that it often remained uncertain whether someone had died in the course of legitimate battle or through summary execution.208 Where historians draw causal inferences from the wider context, the legal framework is designed for precision. Fact-finding in the case had to take place on a microscopic level that appeared at odds with the broader historical context defined
also negatively impacted the case of the claimants - who bore the burden of proof - the court nevertheless reaffirmed its decision that the State could not invoke the prescription period. ECLI:NL:RBDHA:2015:2442 (n 155) [4.16-4.17]. 206 ibid 3.7, 4.31. 207 ibid 2.6. 208 District Court of The Hague, Hearing 8 October 2015.
48 by extreme state violence. Limpach, as an historian, was able to conclude that Dutch troops applied violence in South-Celebes ‘according to a fixed pattern as a strategic weapon’ and that the colonial authorities had ‘masked mass murder as military action’.209 Yet, those who claimed to be relatives of victims of this policy struggled to legally establish that their husbands had not died in another way.
The historian as an independent expert As the claimants attempted to provide supportive evidence of the cause of death of their husbands, evidentiary discussion between the parties centred primarily on two issues. First, some of the men were (re)buried on fields of honour. Whereas the claimants argued that the mere fact of such a grave demonstrated that a man had been summarily executed, the State responded that such fields might also include graves of men who died in regular combat.210 A similar dispute existed with regards to the value of the listing of a man’s name on the so-called ‘list of 214 victims of Bulukumba’. According to the claimants, this list only contained names of victims of unlawful executions, yet the State called that statement into question. 211 The claimants thereafter submitted additional evidence, consisting of four lists produced by local social services that allegedly contained names of men buried on the fields of honour. These lists served to verify that a man is indeed buried where the claimants had alleged, especially for those fields that not contain named gravestones. As a general rule, a Dutch civil judge only obtains fact-finding powers when the facts in the case are disputed. Since the District Court was unable to assess the evidentiary value of both the fields of honour and the lists, it decided to appoint an independent expert to investigate the issues.212 It gave the assignment to historian Robert Cribb, who was asked to investigate, on the basis of historical and verifiable
209 Limpach (n 136) 738, 739 [translation by the author]. 210 ECLI:NL:RBDHA:2015:2442 (n 155) [4.37-4.43]; ECLI:NL:RBDHA:2018:813 [2018] District Court of the Hague C-09-428182-HA ZA 12-1165 [2.27]. 211 ECLI:NL:RBDHA:2015:2442 (n 155) [4.44]; ECLI:NL:RBDHA:2018:813 (n 210) [2.31]. 212 The court can do so on request of a party or on its own initiative, but it remains entirely at the court’s discretion whether or not an expert opinion is commissioned. The expert opinion is a fact- finding mission, and serves to enable the court to come to a well-balanced decision. The court also formulates the questions that are presented to the expert, although the parties will usually be enabled to provide the court with suggestions. See HWB thoe Schwartzenberg, Civiel bewijsrecht voor de rechtspraktijk (3rd edn, Maklu 2011) 178–186.
49 sources, the background and realization of both the fields of honour and the lists.213At a hearing on the 27th of October 2017, Cribb was examined by the Court on how he had proceeded with his investigation.214 He had been in Indonesia twice to conduct field research on the issues, and then submitted a first draft report with which the claimants in particular were highly unsatisfied. It was incomplete, lacked footnotes, and had been submitted far too late, long after the agreed date. The examination, in which the Court questioned Cribb about the methodo- logy he had applied, about his field research, and especially about which sources he had used and why, illustrates a difficult encounter between legal and historical investigation. The draft report had left many questions unanswered. For instance, Cribb had visited the fields of honour, but did not investigate how they had been established and he had not inquired with any parties involved.215 When asked why he had not spoken with more people during his field trip, Cribb answered that as an historian, he preferred written documentation since the human memory is unreliable so long after the events took place. He had assumed that the questions posed by the Court had to be answered on the basis of written evidence, and not on the basis of testimonies. Although the Court had indeed left it to the expert to determine how he would conduct the investigation, the claimants were experiencing difficulties proving their statements precisely because there was little written evidence available. Needless to say, they were disappointed that Cribb had hardly included oral testimony in his investigation. On one occasion, while searching for fields of honour, Cribb had come into contact with someone who, as became clear during the examination, carried the same name as one of the parties in the procedure. Cribb himself had also recognised the name from the case files. Had Cribb based findings on conversations with this person, these outcomes would have had less evidentiary value because the person in
213 ECLI:NL:RBDHA:2016:700 [2016] District Court of the Hague C/09/428182 / HA ZA 12-1165, C/09/458254 / HA ZA 14-96,C/09/467029 / HA ZA 14-653 [2.47]; ECLI:NL:RBDHA:2018:813 (n 210) [2.27, 2.31]. 214 This is different from common law countries, where the parties instead of the court examine witnesses. 215 ‘Onvrede over lopend onderzoek naar geweld in Nederlands-Indië’ Trouw (8 May 2017)
50 question would have been testifying on his own behalf.216 Cribb, as an historian, did not appear to be too aware of such possibly serious implications. He told the Court that he went on an excursion with this person but had hardly talked with him.217 Cribb himself obviously struggled with his role in the proceedings. When questioned about his findings regarding one of the lists of the social services, he hesitated with answering but finally conceded that, as an historian, he would consider the list to contain reliable information, but that he did not know how this assessment would be made by a judge, and that he did not want to take over the role of the Court. Cribb told the Court that he had struggled with the differences between his- torical and legal research, as he noticed that historical research makes more use of the broader context whereas legal research is focused on specific events, facts, and persons. He concluded with the statement that he had felt uncertain about how he could make use of his historical knowledge in a manner that was useful for the Court, adding that he was very impressed by the degree of precision in the case files.218
Individual cases within a broader context In the light of the above, it seems stating the obvious that inquiry through civil litigation leads to a fragmented representation of history. The legal approach requires proof on a microscopic level, which becomes more difficult to obtain with the passage of time, and therewith appears at odds with a broader historical context. ‘When it is known that violence is structural and no incident’, says Canadian his- torian Geoffrey Robinson, ‘it is strange to treat the claims as such in a court of law.’ 219 He contends that the Dutch State rather should look for a structural solution.220 Has the historical context, then, been fully neglected by the legal pro- ceedings? According to historian Bart Luttikhuis, the lawsuits have confined public
216 Code of Civil Procedure 1986 s 164. 217 District Court of The Hague, Hearing 27 October 2017. 218 ibid. 219 Anne-Lot Hoek, ‘Waarheidscommissie over verleden in Indonesië is nodig’ NRC (10 October 2015)
51 debate to a small number of very specific ‘excesses’ that fall within the parameters of legal responsibility and evidence. Luttikhuis writes that this gave rise to the impression that these violent ‘excesses’ were exception rather than rule, and thus the extent to which extreme violence was part of the overall nature of the conflict remained underexposed. Moreover, Luttikhuis argues that the legal approach generates public sensitivity for a particular type of event, namely direct violence with clear individual victims and perpetrators. Yet, it offers little space for other, indirect forms of violence, such as the burning or bombing of villages, which historical research has shown to have been an important part of decolonization conflicts. 221 Luttikhuis’ remarks, however, overlook the fact that the image of ‘excesses’ was in the first place carefully drafted and upheld by the State itself. Although this image has certainly not been created by the legal proceedings, it is a valid question whether it has been reinforced or whether the litigation also attended the broader context in which the individual cases took place. The answer is probably a bit of both. As Veraart points out, to limit the power of its judgment on Rawagedeh in terms of precedence, the District Court emphasized that the case constituted a ‘very exceptional situation’.222 ‘By disconnecting the case from its direct context of a war with remarkably much injustice and violence,’ Veraart writes, ‘the court can present the case – in a context of peace – as highly exceptional.’223 In a similar vein, Chris Lorenz concludes that the Court’s legal reasoning regarding the exceptionality of Rawagedeh was based on a clearly incor- rect historical argument.224 Yet, their arguments have lost some of their force since the developments after the Rawagedeh case have certainly increased the impression of a regular pattern. The current cases encompass multiple executions on the islands of Java, Sumatra, and South-Sulawesi.225 Moreover, the scope of the cases has expanded, as besides summary executions they now also include other forms of violence such as torture of a prisoner by Dutch military personnel, and a gang rape
221 Luttikhuis (n 2) 103–104. 222 ECLI:NL:RBSGR:2011:BS8793 (n 152) [4.14]; Veraart (n 195) 258. 223 Veraart (n 195) 258 [translation by the author]. 224 Lorenz (n 164) 124. 225 See also Margaret Leidelmeijer, ‘De Rechtbank Herschrijft Gewoon de Geschiedenis! Interview Met Advocaat Liesbeth Zegveld’ (2016) 5 Onderzoek uitgelicht 34, 35.
52 by Dutch soldiers during a sweep in Peniwen, Malang, in 1949. The latter case is particularly important as thus far still little is known about wartime sexual violence by the Dutch military, and moreover because the Court emphasized that it was in the execution of their task to ‘clean up’ Peniwen that the soldiers, dressed in uniform and armed with weapons, had entered the house of the claimant and raped her.226 The Court thus recognised that even though the soldiers had acted contrary to their in- structions, the circumstances in which the rape took place had nonetheless been created through the power of the state. When studied together, the cases offer a broader picture of the scope and nature of Dutch military violence during the decolonization war. The Court also indicated on several occasions that, although it is bound to judge individual claims, it has an eye for the broader context in which those cases took place. For instance, in the case regarding the rape in Peniwen, the Court notes that although it could not be said that the State was, from the outset, familiar with the concrete facts underlying this particular claim, it had been aware, in a broader sense, of rape by Dutch military in the former Dutch East Indies between 1946 and 1949.227 In a similar vein, in the case of the torture victim the Court held that even though it had not become apparent that the State could have had knowledge about this particular case of torture during imprisonment, it must have been aware that Dutch solders were involved in severe misbehaviour towards detainees and prisoners.228 Moreover, in court the executions were for the first time accepted as a wrongful act of the State of the Netherlands, the then colonial power. 229 The term ‘excesses’ is not only misleading because it denies the structural nature of Dutch military violence, it also obfuscates the involvement and responsibility of the highest authorities by suggesting that these actions were deviating from, rather than re- presentative of, official policy. By shifting the focus to the responsibility of the State
226 Agnes Cremers, ‘“De Zware Last van Het Koloniale Verleden Wordt Door Rechters Niet Meer Gedragen”. Een Interview Met Liesbeth Zegveld’ (2015) 18 Tijdschrift voor Genderstudies 329; ECLI:NL:RBDHA:2016:701 (n 156) [4.47, 4.55]. 227 ibid 4.11-4.12 228 ibid 4.11. 229 Whether it is reasonable or just that the collective of present-day Dutch society is liable for the actions of the political leadership of 60 years ago is a different, complex question that cannot be discussed within the scope of this thesis.
53 for its own policy, the legal cases contribute to an understanding of the historical context in which the state apparatus was indispensible for the manner in which extreme violence could and did take place. This is important, because the govern- ment has for decades purported to shift responsibility onto individual, ‘derailed’ soldiers. The Court especially underscores the latter aspect with regards to the sweeps in South-Celebes, as it writes that the assignment for the sweeps in fact constituted a carte blanche for the units to act as they saw fit, which not only pro- vided room for excesses, but also for arbitrariness.230 Therewith, the executions can no longer be portrayed as a mere failure of single individuals.231
Epilogue On December 2, 2016, the government announced that developments such as the pending court cases, new research into violence during the decolonization war (most importantly Limpach’s study) and the court-ordered investigation of Professor Cribb asked for a reconsideration of the government’s role between 1945 and 1949, and that it hence would fund a four-year joint research programme of three research institutes into the events during the period.232 Various criticisms have been directed at the program, for instance regarding the role of one of the participating institutes, the Netherlands Institute of Military History (NIMH), which is part of the Ministry of Defence and as such responsible for the historical verification of Indonesian claims under the civil settlement scheme.233 Such criticism notwithstanding, it is worth mentioning that the lawsuits and the debate they instigated contributed to the institution of a broad historical study into the period. When it comes to the continued legal investigation of the decolonization period, at the time of writing the District Court has recently started with the examination of a substantial number of witnesses, which is scheduled to last several months. These witness examinations will further
230 ECLI:NL:RBDHA:2015:2442 (n 155) [4.7]; See also Leidelmeijer (n 225) 35. 231 See also Leidelmeijer (n 225) 35. 232 ‘Parliamentary papers 2016/17, 26049, 82 (Letter to Parliament)’ (2016)
54 illustrate the complexities of historical reconstruction through civil litigation, and accordingly may advance our understanding of the dynamics between law and history.
55
56 CONCLUSION
‘History and law’, writes Schabas, ‘are a tangled web.’234 This essay has aimed to disentangle that web in the context of two case studies of state violence and abuse during a colonial war being scrutinized by a civil court. It should be recognised that, in addition to the two distinct legal systems in which they were situated, significant dissimilarities turned out to exist between both case studies. The Mau Mau case did not proceed after the pre-trial phase, whereas most of the Indonesia cases are currently at a stage of extensive fact-finding. The large amount of documentary evidence in the Mau Mau case, moreover, stands in sharp contrast to the lack of written evidence in the Indonesia cases. The focus of both cases has also differed considerably. Unfortunately, these circumstances rule out drawing firm comparative conclusions about the consequences of the differences between both legal systems in establishing historic truth with regard to the colonial past and decolonization. It should furthermore be acknowledged that much of the outcomes depended on the particularities of the respective cases. Nevertheless, several broader observations may be made. In the Mau Mau case, the concept of joint liability for torts provided an effective legal tool to address the profound involvement of the British government in the violent suppression of demands for land and freedom. During the proceedings, the claimants sketched a detailed portrait of the planning, organisation and execution of large-scale abuse during the Kenyan Emergency, and thereby were able to situate the individual claims within a broader context. On trial, so to say, were not the individuals that designed or executed a state policy, but the apparatus and policy of the colonial state itself. Indeed, as one journalist remarked, ‘this legal approach can mean that individual acts or agents are glossed over – in an effort to expose the “system” behind them.’235 In the Rawagedeh case, on the other hand, the Dutch State accepted that the summary executions had been committed in the scope of an official operation for which it was ultimately responsible, and thus it was not necessary to
234 William Schabas, Foreword, in: Marrus (n 3) ix. 235 Engelhart, ‘Britain Goes to Trial’ (n 34).
57 build a legal link between the physical perpetrators and the government.236 This difference may primarily be explained by reference to the different organisation of the Dutch and British colonial state and military in the Dutch East Indies and Kenya.237 Both proceedings contributed to a change in historical understanding by characterizing colonial crimes as resulting from a wrongful policy of the state, which constitutes a move away from narratives in which responsibility for specific wrongs was passed on to so-called ‘bad apples’: individual, local, derailed soldiers and offi- cers. In the Dutch context, the position of the State as perpetrator in court moreover confronted the prevailing national narrative based on victimhood, and challenged the State’s ambiguous attitude towards this specific period in history. By presenting the wrongs committed by the Dutch and British states in the past as present injustices, litigation offered a new perspective on what happened at the end of colonial rule: not as a mere historical matter, but as an issue of present relevance. Notably, both courts set the strict temporal limitations on the filing of a civil claim aside, and therewith allowed the past to revive in the courtroom. Statutory limitations may be situated at the interface of law and history, as they not only capture diverging notions of legal and historical time, but also because the question whether historical inquiry is re- concilable with legal standards of a fair trial reflects the limits of legal processes in conducting historical investigation. The casuistic approach of civil actions relates uneasily to the context in which colonial crimes were committed. The cases of the widows from South-Celebes con- stitute, in this respect, a paradox: in a context defined by widespread, structural and at times even systemic state violence, under the rules of civil procedure it remains very difficult to prove someone’s cause of death. Even though civil evidentiary standards are lower than in (international) criminal law, reconstruction of old facts
236 ECLI:NL:RBSGR:2011:BS8793 [2011] District Court of the Hague 354119 / HA ZA 09-4171 [3.3] 237 Dutch troops who fought in the decolonization war primarily consisted of war volunteers and conscripted soldiers of the Royal Netherlands Army and soldiers of the KNIL, armies directly subject to the Dutch Ministry of War and the Ministry of Colonial Affairs respectively. In the Kenyan context, the relation between the various active formations and the British Army and/or Colonial Office (and thus with the British government in London) was less straightforward, and hence of critical importance for the issue of the latter’s liability.
58 through civil proceedings remains a laborious and difficult exercise.238 This reflects a contrast between the legal demand for precise and concrete evidence and the manner in which historians interpret and explain the past. The encounter between legal and historical methodology has been further illustrated by the participation of historians in the proceedings. In both case studies, historians were involved in the production of evidence, although the role they per- formed differed according to the positions of the expert witness in common and in civil law procedures. Their respective tasks – to refer the court to archival material, respectively to investigate clearly outlined factual issues – were quite different from the participation of historians in (international) criminal trials. Whereas in the latter setting historians have been mainly invited to provide historical context to individual actions, in these civil cases their task was limited to assisting the court in identifying and investigating potentially relevant evidence. Accordingly, they were not com- pelled to present a particular interpretation of the past with a greater degree of certainty than their own disciplinary conventions allow for. Nonetheless, in both cases, the historians struggled to adapt their knowledge and expertise to the demands of the legal process. Most manifestly, perhaps, we have seen that civil litigation can be a powerful instrument in contesting official accounts of the past. The legal proceedings analysed in this essay not so much altered historiography, but rather contributed to a shift in the perceptions of the decolonization histories at issue. This once more confirms that history is always a specific perception of the past. Moreover, the legal actions forced the governments to come up with a serious, detailed and unambiguous response, and therewith compelled both states to face the darker pages of their histories. When the past is addressed through civil actions instead of criminal prosecution, one con- sequence is that victims have more control over the historical narrative produced in the proceedings.239 The courtroom hence offers a forum where victims may, through their lawyers, engage with the former colonizers’ historical account, to claim
238 The Mau Mau case was settled out-of-court after the preliminary phase of the proceedings, but it seems likely that similar evidentiary challenges would have arisen had the case been litigated to final judgment. 239 See also Bilsky (n 4) 122.
59 recognition of their experiences within that narrative. The claimants in the case studies principally aimed for recognition on two fronts: recognition of what had happened, and recognition that what had happened was wrongful.240 Their claims not only confronted the former colonizer with its responsibility for their sufferings, but also with its narrative about, and attitude towards, this particular period of the past. The case studies concerned events that until recently were considered to be beyond the reach of law. They therefore not only say something about the past, but also about the present. May these cases also have implications for the future? The procedures’ successful outcomes have indeed inspired others to use litigation as a tool to address colonial violence and to set the historical record straight.241 It is pro- bable that such novel claims will face similar legal and historical challenges. With time, however, witnesses will increasingly pass away, and the events will slowly move from the legal realm into that of history. When this will be about to happen, new questions will arise about legal engagement with the colonial past, and about the relationship between law and history in general.
240 See Onno Sinke, ‘Het Belang van Erkenning’ [2016] Cogiscope 11, 11. 241 For instance, on 28th November 2017 a preliminary hearing took place in the British High Court in a civil lawsuit filed by of a group of Eoka veterans (a former Greek Cypriot guerrilla organization that fought for Cyprus’ self-determination) that has accused the British government of torture and other human rights abuses during the 1955-59 anti-colonial struggle. Other groups that have articulated claims concerning colonial violence in legal idiom and hinted at the idea of starting a legal case include the relatives of 33 unarmed protesters who were shot by British forces during the 1959 state of emergency in former Nyasaland (now Malawi).
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