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.