FAMILIES OF BATANG KALI MASSACRE’S VICTIMS ARE HOPEFUL OF LONG OVERDUE JUSTICE TO BE DONE BY UK SUPREME COURT AFTER 67 YEARS

London – The 24 victims’ families of the Batang Kali massacre continued their battle against Britain’s foreign and defence ministries at the British’s highest court here and the two-day hearing finally concluded on 23.04.2015. A decision is now reserved to a date to be fixed.

Victims’ families' team posts for photo after the UK Supreme Court hearing. From left:  1.Ng See Teong, lawyer 2. Chin Fo Sang, Chairman of the Action Committee Condemning the Batang Kali Massacre 3. Dato’ Firoz Hussein, lawyer 4. Wong Lee Ling, granddaughter to Lim Ah Yin 5. Lim Ah Yin, victim's family 6. Michael Fordham QC, lawyer 7. Danny Friedman QC, lawyer 8. John Halford, lawyer 9. Quek Ngee Meng, lawyer 10. Caroline Goh Seow Siang, lawyer)

Victims’ families’ team posts for photo after the UK Supreme Court hearing. From left:
1.Ng See Teong, lawyer
2. Chin Fo Sang, Chairman of the Action Committee Condemning the Batang Kali Massacre
3. Dato’ Firoz Hussein, lawyer
4. Wong Lee Ling, granddaughter to Lim Ah Yin
5. Lim Ah Yin, victim’s family
6. Michael Fordham QC, lawyer
7. Danny Friedman QC, lawyer
8. John Halford, lawyer
9. Quek Ngee Meng, lawyer
10. Caroline Goh Seow Siang, lawyer)

The appeal was presided by five Supreme Court judges, Lady Hale, Lord Mance, Lord Kerr, Lord Hughes together with their President, Lord Neuberger.

Madam Lim Ah Yin aged 78, is the elder daughter to Lim Sang, one of the workers being killed on 12.12.1948, attended the hearing in the Supreme Court accompanied by her granddaughter, Ms Wong Lee Ling, voluntary lawyers from the Action Committee condemning the Batang Kali massacre, Quek Ngee Meng and Datuk Firoz Hussein. The families are represented by Michael Fordham QC, Danny Friedman QC, Zachary Douglas QC and John Halford of Bindmans LLP.

The families have fought for years for a public inquiry but have been denied by British courts. Despite the Court of Appeal did not order an inquiry to be held last year, the court said it was “probable” the families’ case would succeed before the European Court of Human Right as the families have satisfied the court that the British Government were in breached of the fundamental human right – the right to life.

 

Families’ arguments

The families’ counsel Mr Fordham QC told the UK Supreme Court that failure and refusal of the British Government to take action to inquire further into the Batang Kali massacre are unlawful. He also pressed for the families that Britain must account for the killings under the European Convention on Human Rights even though the convention was ratified about 4 years later.

Michael Fordham QC, said: “at least three of the soldiers who were on patrol and at least four villagers who were at Batang Kali were still alive and their oral evidence would be available to an inquiry as well as the man who led the 1993-1997 Malaysian police investigation has indicated his readiness to assist an investigation.”

“Professor Sue Black, one of the UK’s leading archaeologists from Centre of Anatomy and Human Identification at the University of Dundee who explained that significant conclusion could be drawn from the examination of gunshot wounds from large groups of people, and that the task would not be onerous were the bodies exhumed.”

“The site of the graves is known, the families have confirmed their agreement to exhumation and the Malaysian Government has offered to facilitate it. Therefore, Professor Black’s contemplation is practical.”

The lawyer for the families submitted that Britain’s refusal to investigate cannot be justified to the proportionality standard of review. He stressed that some of the evidence presented before this highest court showed that the soldiers released the unarmed villagers onto the veranda was to wipe the villagers out, just as they were wiping out the village.

From left: Ng See Teong, Chin Fo Sang, Lim Ah Yin, Quek Ngee Meng, Wong Lee Ling

From left: Ng See Teong, Chin Fo Sang, Lim Ah Yin, Quek Ngee Meng, Wong Lee Ling

Another conclusion could be easily reached is to shoot and keep shooting until all men, with half of them over 50 in age, were lying dead on the ground was unnecessary and disproportionate use of force to effect the arrest. The “escape” hypothesis argued by the British Government just couldn’t meet the proportionate test. With this applicable standard of judicial review, only then the public interest considerations can be ventilated in the proper, independent forum: the supervising court.

 

British Government’s arguments

Now it is a story of denying legal responsibility for the acts of the British soldiers. The lawyers for the Ministry Foreign Affairs and Defence argued that the families’ position must fail as a matter of constitutional principle. Their counsel, Jonathan Crow QC, tried goad to convince the Judges that Sultan of Selangor or the Malaysian High Commission remain responsible for the unlawful killings upon independence of Malaya in 1957.

The counsel argued that both 6 months rule under the ECHR and one year rule under the UK Human Rights Act have set in where the time limit for human rights relief available to the families had expired several decades ago.

Crow QC also argued that there is a territorial limit for British Government to conduct an inquiry because some investigations will have to be conducted in Malaysia and there is not power of compulsions in this sovereignty state.

Human Rights groups in Northern Ireland

 

Lim Ah Yin (left) appreciates voluntary lawyer, Quek Ngee Meng’s effort.

Lim Ah Yin (left) appreciates voluntary lawyer, Quek Ngee Meng’s effort.

The importance of the action to Northern Ireland is marked by the fact that its Attorney General John Larkin QC has attempted to limit the state’s human rights obligations. He argues that “As for the recovery of historical truth – a matter of great importance – this may be a matter better addressed through the library and the archive rather than the courtroom.” The Judges also heard submissions from Ben Emmerson QC for the Northern Irish human rights group, which represent victims of the Northern Ireland Conflict during the hearing, that even historical cases deserve justice.

Victim’s family Lim Ah Yin’s heartbreaking journey to the UK’s highest court began more than 60 years ago. She was 11 year old at the time of killings and it was her birthday. Lim said: My beloved mother was depressed over these years before she died in 2006. I want to let the Judges know the struggle and hardship that she had been through after the death of my dad during the massacre.

峇冬加里屠杀惨案罹难者家属盼英最高法院为67载控诉伸张正义

(伦敦)– 24名峇冬加里屠杀惨案罹难者家属就英外交和国防部长拒绝彻查屠杀案的决定向英最高法院提出上诉。英最高法院已于2015年4月23日聆审完毕,并再择日下判。

英最高法院五司大法官听审这起上诉,他们分别是最高法院院长纽伯格(Lord Neuberger)、黑尔副院长(Lord Hale)、曼斯(Lord Mance)、克尔(Lord Kerr)和休斯(Lord Hughes)。

罹难者家属与律师团成员于英最高法院审讯完毕后合影,左起:黄诗忠律师、陈观添,追讨英军屠杀罪行工委会主席、拿督费洛斯律师、黄丽玲(林亚英孙女)、林亚英,罹难者家属、麦克。福尔罕女皇律师、丹尼。费鲁曼女皇律、约翰。哈尔福律师、郭义民律师、吴晓湘律师.

罹难者家属与律师团成员于英最高法院审讯完毕后合影,左起:黄诗忠律师、陈观添,追讨英军屠杀罪行工委会主席、拿督费洛斯律师、黄丽玲(林亚英孙女)、林亚英,罹难者家属、麦克。福尔罕女皇律师、丹尼。费鲁曼女皇律、约翰。哈尔福律师、郭义民律师、吴晓湘律师.

其中一位被英军于1948年12月12日屠杀的罹难者,林生的长女林亚英(78岁)在孙女黄丽玲,追讨英军屠杀罪行工委会义务律师团成员郭义民律师和拿督费洛斯律师的陪同下,远赴英最高法院出席聆审。代表罹难者家属提出控诉的英律师团成员分别是福尔罕女皇律师、费鲁曼女皇律师、道格拉斯博士女皇律师和哈尔福律师。

较早前,家属要求英政府彻查屠杀惨案的诉求被英高庭和上诉庭拒绝。虽然去年英上诉庭没有谕令英政府展开调查行动,但该庭认为罹难者家属已证明他们亲属最重要的人权即生命权利已遭到英政府侵犯,因此家属很可能在欧洲人权法院胜诉。

家属的上诉案

家属英律师代表福尔罕女皇律师向英最高法院陈述,英政府拒绝彻查峇冬加里屠杀惨案的决定是不合法的。虽然英政府在屠杀惨案发生约4年后才签署欧洲人权公约,但依据现有的欧洲人权标准, 他强调英政府还须为屠杀惨案负责。

左起:黄诗忠律师、陈观添、林亚英、郭义民律师、黄丽玲

左起:黄诗忠律师、陈观添、林亚英、郭义民律师、黄丽玲

福尔罕女皇律师表示:“若听证会能设立,至少还有三名英军和生还的四名峇冬加里村民,以及在1993年至1997年期间负责马来西亚警方调查行动的前警官可以向听证会提供供词。”

“来自英国邓迪大学解剖与人类鉴定中心的知名法医考古学家布莱克博士表示,通过检验罹难者的枪伤伤口将能获得死因的结论,而且解剖遗体的工作也不会因时间间隔久远而碰到困难。”

“罹难者的安葬地点已知悉,家属同意进行解剖工作, 马来西亚政府也同意提供协助。因此,布莱克博士的提议是可行的。”

家属代表律师表示英政府拒绝彻查屠杀案的决定没有在令人信服与符合“与证据相称”的情况作出。他强调证据显示当时英军在胶园宿舍走廊释放没持械的男村民的目的是为了歼灭他们,就好像英军烧毁整个村庄般。

另外的证据显示英军持续开枪射杀半数已超过50岁的年长男村民直至每个人倒地死亡为止。这过度使用暴力的射杀行为是不必要的,而且也与在逮捕行动中可使用的武力不相称。英政府提出“村民逃跑”的假设性说法不能令人信服,也与证据不相称。在司法审核案中,家属律师认为只有依据”与证据相称”的标准审核,正义才可获得伸张。

英政府的抗辩

英政府代表律师们全盘否认英政府必须为英军的行为负上法律责任。他们抗辩依据当时的马来亚宪法,家属的立场不能被认同。英政府律师,克洛尔女皇律师尝试说服大法官, 英政府的法律责任由雪州苏丹负责或在马来亚年独立时已转移给马来亚政府。

英政府律师们也提出家属的控诉已超出欧洲人权公约的六个月和英人权法令内的一年内起诉的时效约束, 因此家属控诉应不受法庭理会。

克洛尔女皇律师也抗辩基于地理因素的限制,英政府不须展开任何调查行动, 因为部分调查工作须在马来西亚进行,而英政府没法对马国相关机构采取任何指示。

左起:林亚英感谢义务律师,郭义民提供的协助和努力

左起:林亚英感谢义务律师,郭义民提供的协助和努力

北爱尔兰人权组织

北爱尔兰总检察长拉津女皇律师尝试限制该政府应负上的人权责任。他表示:“虽然还原历史真相很重要,但这事项应该通过图书馆和历史档案正视而非通过法庭。” 英最高法院也聆听了北爱尔兰人权组织代表律师,艾默尔生女皇律师的陈述。他代表70年代北爱尔兰冲突中的受害者出席聆审时向英最高法院表示,即使是历史案件也有寻求正义的权力。

罹难者家属林亚英前往英最高法院寻求正义的艰辛路程于67年前, 由母亲郑凤开始,而屠杀案发生当天正值她11岁生日。从母亲在尸体杀害的约6天后到现场收尸, 到今天林亚英远赴英国, 她表示:“母亲在父亲死后来感到非常难过,她在2006年离开了我。我要让英国大法官知道母亲在父亲被惨杀后所遭受到的困境和痛苦。我要为父亲与无辜杀被害的村民讨回公道。”

Watch Live Hearing

Please be informed that hearing in London, Michael Fordham QC, Danny Friedman QC and Professor Zachary Douglas QC will make their submission before 5 panel members in the UK Supreme Court for the 1948 Batang Kali Massacre today, at 5.30pm later. The panel of judges including the President and Deputy President of the Supreme Court.
You may watch the hearing in the Supreme Court [LIVE] at the links below:

Malaya inquiry to hear from survivors of Batang Kali shootings by British troops

From: The Guardian

Supreme court to hear case over deaths of 24 unarmed villagers at hands of Scots Guards in 1948, during communist uprising in UK protectorate

Lim Ah Yin, relative of a massacre victim, in 2012 (AFP/Getty)

Lim Ah Yin, relative of a massacre victim, in 2012 (AFP/Getty)

Lim Ah Yin last saw her father alive on her 11th birthday. A British soldier, pointing a rifle, was telling him to shut up. A week later, she followed her heavily pregnant mother back to the Malayan rubber plantation and discovered his bloated body amid a swarm of flies. There was a bullet hole in his chest.

On Wednesday, Lim, now 78, will take a seat in the supreme court in London, to witness a legal battle over the government’s responsibility to hold inquiries into allegations of historical atrocities.

The judicial review challenge, brought by the relatives of 24 unarmed men killed by Scots Guards at Batang Kali on 12 December 1948, has broadened out into a dispute over the vanishing point of when unresolved claims of injustice are allowed to disappear into the past.

Northern Ireland’s attorney general, John Larkin QC, and several Northern Irish human rights groups have intervened on different sides in the case because of the precedent it will set for the official duty to investigate legacy cases from the Troubles. Larkin is expected to argue that the obligation to investigate is limited; the human rights groups will say that even historical cases deserve justice.

Lim’s heartbreaking journey to the UK’s highest court began more than 60 years ago. She was living with her parents near Batang Kali, a rubber estate in Selangor, then part of the British-protected Federation of Malaya. It was the height of the communist insurgency. On the morning of 11 December 1948, she followed her parents out to the paddy fields to harvest rice. On their way back they met British troops and saw the body of Loh Kit Lin, the first of the villagers to die.
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“A soldier pointed at my father,” Lim told the Guardian. “They checked the rice and pushed him into a hut. Then one of the soldiers pulled my mother’s arms. She was eight months’ pregnant. I and my sister tried to stop them taking her away but she was pushed down to the river. We heard gun shots and thought my mother had been killed.”

There were mock executions to persuade villagers to hand over information about “bandits”. Later that evening her mother was brought back to the hut. “I realised she had survived. Women and children were ordered to go upstairs. In the morning, we came downstairs and I heard my father’s voice. We had been ordered to go out to a lorry that was waiting.

“He [Lim’s father] said I should follow the adults. I told him mother was alive but a British soldier with a gun opened the door and told him to shut up. We climbed into the lorry and as it moved away we heard gunshots, sounding like firecrackers. As we looked back, we saw smoke come up from the [burning] houses.”

A week later Lim and her mother returned to Batang Kali on a truck carrying plywood coffins. “It was very smelly,” she recalled. “The bodies were covered in flies. They were bloated and swollen, lying in groups of three or four. Finally I found my father. He had been shot in the chest. That day, December 12th, had been my birthday.
New documents reveal cover-up of 1948 British ‘massacre’ of villagers in Malaya
Read more

“My mother cried almost every day. She brought me and my sister up. When the baby was born she gave it away for adoption. She only stopped crying when I married and her granddaughter was born. She was 92 when she died.”

Lim is one of seven living survivors who can recall what happened in Batang Kali. The official British account was that victims were attempting to escape when they were shot. In the years that followed there were two abortive criminal investigations by Malaysian and British police. Both were prevented from reaching a conclusion because of official opposition to interviewing witnesses.

In 1969, several of the Scots Guards on the patrol that day gave interviews to The People newspaper, alleging that they had been ordered to massacre villagers in Batang Kali. Two sergeants, however, insisted that the men had been shot because they tried to escape.

John Halford, a solicitor at the law firm Bindmans who represents the Malaysian survivors, said: “The bullets that killed half the inhabitants of Batang Kali can never return to their barrels and the time has long since passed when any soldiers who fired them might be prosecuted.

Police with locals under suspicion of collaborating with communist bandits during the Malayan emergency. Photograph: Bert Hardy/Getty Images

Police with locals under suspicion of collaborating with communist bandits during the Malayan emergency. Photograph: Bert Hardy/Getty Images

“But when six of them have confessed to murder, eyewitnesses remain alive and forensic tests can confirm the killings were close-range executions, the law should demand an answer from the state. After all, those killed were British subjects living in a British protected state. They and their families have a right to meaningful justice.”

Prof Sue Black, a forensic anthropologist who has carried out excavations on mass graves in Kosovo and Rwanda, has advised Halford’s legal team that evidence could still be obtained from the victims’ bodies.

In the past the Foreign Office has resisted holding an inquiry, saying: “It is very unlikely that a public inquiry could come up with recommendations which would help to prevent any recurrence.” The government has also argued that any responsibility for an inquiry passed to Malaysia when the former colony became independent in 1957.

In a statement, the Ministry of Defence said: “This was a deeply regrettable incident. The case will be heard in the supreme court on 22 and 23 April. It would not be appropriate to comment further whilst legal proceedings are ongoing.”

Yasmine Ahmed, director of Rights Watch UK, one of the groups involved, said: “The outcome of this case will have considerable implications in Northern Ireland, where many of the deaths that occurred during the Troubles happened before the enactment of the Human Rights Act in 1998.”

Sara Duddy, a caseworker with the Pat Finucane Centre in Derry, said: “Dealing with the past, whether through inquests or investigations, continues to be a battleground where the UK government seeks to deny families the right to truth. The Batang Kali massacre is proof that the past will always come back to haunt us if it isn’t dealt with.”

After recounting her experiences, Lim said: “I hope the British government can give my family justice for all the suffering they have been through.”

UK Supreme Court to revisit 1948 Batang Kali massacre

From : Free Malaysia Today

[Supreme Court may revisit law in the light of European court ruling in Polish case.]

batang-kali-massacre

LONDON: Unlikely as it may first appear, a small town in Hulu Selangor will become the focal point of what may turn out to be a landmark human rights court case in the United Kingdom later this week when the UK Supreme Court revisits the circumstances surrounding the Batang Kali massacre in 1948, reports The Independent.

A quick dive into the annals of history will show that after World War II ended, the British returned to recover control of Malaya from Japanese forces only to find that guerrillas whom they had supported in the fight against the Japanese had turned to communism in a bid to oust the British themselves.

British-owned rubber plantations and tin mines were targeted, leading the authorities to declare a state of Emergency in June 1948 to curb the escalating violence.

In December 1948, a 14-member Scots Guards patrol entered a rubber plantation and rounded up all civilians. The men were separated from the women and children for interrogation about communist guerrilla activities operating locally.

The next morning, after the women and children had been driven away, 24 men were executed and the village was burnt down.

British authorities have previously accepted the army’s explanation that the men were insurgents who were attempting to escape detention.

Relatives, however, claim that they were civilians massacred in cold blood.

In 1970, an on-going investigation was suddenly halted when a new Conservative government took office.

Even an investigation into the incident by the Malaysian Police in 1993 had to be closed after the police received “virtually no assistance from the UK authorities.”

Families of the victims were reported to have petitioned the Queen twice prior to commencing the present legal action. On both occasions, no response was received.

In 2012, the families then took the challenge to the High Court but the case was dismissed. The Court of Appeal did likewise on March 19, 2014.

Despite this, relatives have some cause for optimism that the Supreme Court will decide differently.

According to The Guardian, this is due to a decision of the European Court of Human Rights in a case called Janowiec, which involved a massacre by the Russian army of Polish prisoners.

In that case, the court decided that Russia was under no obligation to investigate a massacre which took place some 58 years before Russia ratified the human rights convention.

The court, however, suggested that ratifying states may be required to investigate breaches of human rights which occurred a “reasonably short” time – not more than 10 years – before ratification.

The UK ratified the human rights convention less than five years after the killings at the Batang Kali massacre occurred.

In dismissing the appeal, the UK court of appeal held that it was bound by earlier decisions of the Supreme Court which held that UK’s Human Rights Act 1998 does not operate retrospectively.

The families were, however, invited to appeal to the Supreme Court to allow that Court to test its previous rulings in light of the Janowiec case.

The Court of Appeal even went as far as acknowledging that the Batang Kali case would probably succeed if it was taken up in Strasbourg, the seat of the European Court for Human Rights.

Lawyers for the British Government argue that the legal action has no merit because the incident occurred prior to ratification by the British Government of the Human Rights Convention. They also argue that the troops were under local Selangor command, and not UK command.

The case also has wide significance within the United Kingdom. If the Supreme Court rules in favour of the families, it would also mean that the British Government would likely have to open inquiries into contentious killings by British soldiers in Northern Ireland.

峇冬加里屠杀案罹难者家属上诉至英最高法院

吉隆坡 – 峇冬加里屠杀案罹难者家属及工委会成员已准备就绪,于2015年4月22日和23日前往伦敦向英最高法院大法官提出提出已过67载的控诉。
2014年3月20日,英上诉庭裁定英政府必须为发生在1948年雪兰莪州,峇冬加里境内的屠杀案负责。但英上诉庭还是基于被英最高法院的案例束缚而驳回家属要求英政府成立听证会的申请。家属不言弃,再将控诉带至英最高法院。

英最高法院将对三项复杂的法律议题进行聆审:

第一,谁必须为屠杀案负上法律责任?罹难者家属表示英政府必须为屠杀案负责因为英军是在英政府内阁的指示下在我国执行任务。然而英政府抗辩其法律责任应由雪兰莪苏丹负责或早已在马来亚独立时转移给现在的马来西亚政府。英政府企图为在英殖民时期所犯下的过错赤裸裸的逃避责任。英政府的狡辩在较早前已被英高庭和上诉庭共五位法官否决。

第二,罹难者家属也表示基于这起惨案发生在60多年前,不断有新证据涌现,英政府须遵循欧洲人权公约第二条文负起彻查可疑死亡案的责任。马来亚当时属英殖民地与保护区,因此欧洲人权公约于1953年10月23日延伸成为马来亚联邦当时的法律。

峇冬加里屠杀案有数项特殊的案情:其中包括1948和1949年严重不足的调查行动、数名英军在1970年代承认冷血屠杀村民,但英政府违背查案警官的意愿仓促的终止调查、马来西亚警方在1990年代的调查虽半途搁置,但更多证人和证据出现、以及家属自2008年准备通过司法途径提出控诉时发现更多的新证据。 由于此案将对英政府是否应须为60至70年代英本土的北爱尔兰冲突负上责任有着切实的影响,因此北爱尔兰著名人权组织已申请介入并支持家属的申诉。北爱尔兰总检察长毫无意外的支持英中央政府的抗辩。

第三,如果英政府没有义务彻查此案,家属也要求英最高法院检讨英政府拒绝彻查的决定标准。家属律师认为自17世纪起,普通法已认可彻查在扣留间的可疑死亡案的重要性,任何拒绝彻查屠杀案的决定必须在令人信服与符合“与证据相称”(proportionate)的情况作出。英高庭和上诉庭的法官认为司法审核政府的决定是以“合理”为标准,即只要政府能合理的拒绝设立听证会,法律并不会干预政府的决定。惟罹难者家属表示这已不再是一项正确的法律标准。因此,这项法律议题预料将成为司法审核案的新标准,尤其是涉及基本人权的案例。以英最高法院院长纽伯格大法官(Lord Neuberger)为首的五司将听审这起上诉。其他4名法官分别是最高法院副院长黑尔(Lady Hale),曼斯(Lord Mance),克尔(Lord Kerr)和休斯(Lord Hughes)。

罹难者家属代表林亚英表示:“我将前往英国并站在英国最资深的法官们面前。我要让他们知道我母亲在父亲被惨杀后所遭受到的困境和痛苦。母亲曾告诉我她不会在有生之年看见任何正义的曙光,她也已离开我快十年了。我今年已78岁,但我坚持在我有生之年为父亲、为峇冬加里惨案的罹难者讨回公道。”

24名在1948年英殖民时期被英军屠杀的罹难者家属于2012年5月入禀英高庭进行越洋控诉。2012年9月4日,英高庭裁决英政府不需设立听证会但认为英政府必须为屠杀案负上责任。英高庭在判词中指出:“确实有证据显示24名峇冬加里平民是被处决。”英上诉庭随后也认同起诉人在英高庭提出的10项不可争辩的事实。罹难者家属自1948年12月19日起,即屠杀案的一星期后,就锲而不懈地为至亲讨回公道。她们当时乘搭德士从峇冬加里前往吉隆坡提出控诉,而她们的儿女今天更踏上司法征途远赴英伦向英国大法官申诉。

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Batang Kali killings: Britain in the dock over 1948 massacre in Malaysia

[Sunday 19 April 2015]

from : The Independent

Victims' relatives take patrol's killing of 24 civilians to Supreme Court

Victims’ relatives take patrol’s killing of 24 civilians to Supreme Court

Britain’s failure to investigate the role of the Army in a massacre of 24 unarmed civilians in Malaysia will be challenged in a landmark Supreme Court case this week.

In the case, the culmination of a 66-year battle for justice, relatives of victims of the Batang Kali killings during the “Malayan Emergency” in 1948 will demand the British government be held to account for its repeated refusal to investigate the shootings.

The outcome has important ramifications for the UK’s duty to investigate historical incidents where British security forces have shot civilians. It could also further establish the extent to which the military is subject to human rights laws. Earlier this month, seven former defence chiefs of staff argued that British forces should be exempt from “creeping legal expansion on to the battlefield”.

Lim Ah Yin, relative of a massacre victim, in 2012 (AFP/Getty)Lim Ah Yin, relative of a massacre victim, in 2012 (AFP/Getty)

In the incident, dubbed Britain’s My Lai – after the 1968 Vietnam War atrocity when US soldiers murdered hundreds of unarmed civilians – a 14-man Scots Guards patrol entered the Batang Kali rubber plantation in Selangor state, a British protectorate. The soldiers, with a guide and two colonial police officers, rounded up more than 50 villagers, separated men from women and children, detained them in huts overnight, and began interrogating both groups about communist guerrillas operating locally. Interrogations included simulated executions, witnesses claimed.

The next morning the women and children were driven a short distance away, by lorry. The men’s hut was then unlocked and within minutes all 23 of the men were shot dead after allegedly attempting a mass breakout. One man had been shot the previous evening. The village was then burnt to the ground.

British authorities rejected subsequent demands for an inquiry, labelling the victims “bandits” and accepting the escape explanation.

In 1969, a member of the patrol told a newspaper the troops deliberately executed the villagers on the platoon commander’s orders. A further three soldiers admitted on oath to a subsequent Scotland Yard investigation that they executed the villagers under orders. Two said the Army instructed them to give the false explanation that the men had tried to escape.

Detectives were poised to interview more Malaysian witnesses when the inquiry was closed in 1970. The investigating officer concluded: “At the outset this was politically flavoured.” The decision to terminate mid-investigation, he wrote, “was due to a political change in view when the new Conservative government came to office.” A 1993, a Malaysia Police investigation was closed after “virtually no assistance from UK authorities”. Relatives twice petitioned the Queen for an apology, without response, before launching their legal-inquiry battle.

Civilians lie dead in Batang Kali, in 1948

Civilians lie dead in Batang Kali, in 1948

Lawyers for the British government  argued that it was not liable for the deaths, which occurred before Britain signed the Human Rights Convention, and that the troops were under Selangor, not UK, command.

Surviving platoon members are not expected to face prosecution.

John Halford, of Bindmans solicitors, representing victims’ relatives, said: “The unarmed Chinese labourers slaughtered were British subjects living in what was then a British Protected State. Their killers were British soldiers, deployed by the British Cabinet to protect British interests. Despite all of this, the Government will argue the law demands no accountability whatsoever because the killings are somehow not Britain’s responsibility and happened a long time ago. We trust the Supreme Court to see through this sophistry… [and] not permit an atrocity committed by our troops to be condoned and covered up in our name.”

Last year the Appeal Court rejected the relatives’ legal arguments but, unusually, invited them to appeal to the Supreme Court to enable Britain’s highest court to bring UK law into line with more recent European Human Rights Court judgments. The relatives’ arguments would “probably succeed” in Strasbourg, the judges noted.

Tham Yong was an eyewitness to the massacre (AFP)

Tham Yong was an eyewitness to the massacre (AFP)

The case’s implications are such that Northern Ireland’s Attorney General, John Larkin QC, has intervened. If the Supreme Court rules the Government does have a duty to carry out fresh inquiries into such deaths, it is certain to spark calls for fresh investigations into a series of contentious killings in Northern Ireland. Yasmine Ahmed, of Rights Watch (UK), accused him of trying to close the door to public inquiries saying: “This case’s outcome will have considerable implications in Northern Ireland where many of the deaths that occurred during ‘The Troubles’ happened before the Human Rights Act in 1998. The UK has a legal obligation to investigate the unlawful killing of its nationals. It is vital there is a domestic law mechanism allowing for the enforcement of this and the accountability of actions of the state.”

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