Seven reasons why Batang Kali (still) matters

ByJohn Halford, solicitor, UK legal team John Halford, Bindmans LLP [22 April 2016]

Introduction

1. On 11 December 1948, British troops entered and took control of the rubber tapping plantation village of Batang Kali, Selangor in what was then Malaya. They separated the women and men and, after shooting one man, began a series of interrogations to establish whether the remaining villagers were supporting Communist insurgents. Many villagers were subjected to mock executions. The following morning the women, children and one man were put on a truck. The troops then escorted 23 of the men out from the longhut where they had been held overnight and, within minutes, every one had been shot dead. This incident is known as the Batang Kali Massacre (or ‘the British My Lai’). No-one has ever been prosecuted for it. The British government has never apologised, acknowledged fault or made any form of reparations. When challenged, it denied legal responsibility for the killings, despite Malaya then being a British Protected State, all Malayan nationals being British subjects and the troops involved being British, deployed on the instructions of the British Cabinet to protect British interests in the rubber trade.

2. The killings were portrayed as a military victory at the time, but in 1970 six of the soldiers involved presented themselves, first to the press and then to the Metropolitan Police, to confess that they had murdered the male villagers. The resulting police investigation was terminated prematurely by the government against the wishes of the officers involved who described the reasons as “political”. The bodies were not exhumed and those in command at Batang Kali were never interviewed as that had been planned as the final stage of the investigation. In 1993, a Malaysian police investigation began, but was also blocked by the British government.

3. Then, in 2008, a campaign began in Malaysia to press for a British public inquiry into what had happened and its cover-up. The inquiry was refused by the government in 2010, a decision then challenged in judicial review proceedings brought by family members of those killed, R (Keyu and others) v Secretary of State for Foreign and Commonwealth Affairs and another. The claim was refused by the Divisional Court , the Court of Appeal and, on 25 November 2015, by the Supreme Court . Only a positive ruling by the European Court of Human Rights, to which the victims’ families now turn, could now secure a public inquiry.

4. So, subject to what happens in Strasbourg, is the Batang Kali case now simply to be consigned to legal history as an unsuccessful and “thoroughly stale” claim, which is how it was described by Treasury Counsel Jonathan Crow QC in the Supreme Court?

5. Or perhaps it should be remembered more charitably as an “honourable crusade” which could not succeed because, as Lord Kerr thought (see para 285 of his Supreme Court judgment):

“[t]his is an instance where the law has proved itself unable to respond positively to the demand that there be redress for the historical wrong that the appellants so passionately believe has been perpetrated on them and their relatives. That may reflect a deficiency in our system of law.”

6. This note suggests that neither should be the epitaph of the case, that it will be remembered for very much more and that the three courts’ orders are certainly no reflection of the true outcome.

First Reason – Law: temporal scope of Art 2 ECHR

7. First, Keyu raised important and far reaching questions about the retrospectivity of the UK’s international human rights obligations under the European Convention on Human Rights (‘ECHR‘) and, to the extent they are retrospective, their domestic enforceability through the Human Rights Act 1998 (‘HRA’). The answers did not help the families of those killed at Batang Kali, but they are likely to help others when new evidence comes to light of serious past wrongdoing.

8. The families’ Art 2 case was built on Šilih v Slovenia (2009) 49 EHRR 996, Janowiec v Russia (2013) 58 EHRR 792, Brecknell v United Kingdom (2007) 46 EHRR 957 and Harrison v United Kingdom (2014) 59 EHRR SE 1 as follows.

9. First, it was now settled law that Art 2 creates an autonomous and detachable duty to investigate deaths occurring in suspicious circumstances.

10. Secondly, the Convention demanded investigation of deaths occurring before the “critical date” when the relevant state’s Convention obligations first arose, where relevant acts or omissions had occurred after the critical date and there was a genuine connection between the death and the critical date, normally the passage of no more than ten years between those dates. If the critical date was 1953, when the United Kingdom had signed up to the Convention and extended it to Malaya, just five years after the killings, then the genuine connection criterion was met and so, given all investigations up until then had been defective (indeed cover ups) the Art 2 investigatory obligation was activated in 1969 when compelling new evidence that the killings were unlawful came to light through the soldiers’ confessions.

11. The framework was accepted to be legally correct by the majority of the Supreme Court. They also accepted there was new, weighty and compelling that came to light in 1969. However, with the exception of Baroness Hale they did not accept the critical date was 1953, and held it was 1966, when the United Kingdom had first recognised the right of individual petition to the ECtHR. It followed that the deaths had occurred more than ten years before the critical date and so the connection was insufficient.

12. It is difficult to reconcile the Court’s majority decision with the international law principle that a treaty becomes binding as soon as it is ratified. But the effect of the decision is that suspicious deaths that occurred between 1966 and 1976 will meet the genuine connection criterion and so if sufficiently weighty and compelling new evidence now comes to light about them the Art 2 investigative duty will be activated. This potentially could embrace many killings in Northern Ireland, especially those falsely presented as sectarian killings.

13. It is important to sound two cautionary notes, however. First, the majority in the Supreme Court went on to hold that, even if the genuine connection test had been met, the Batang Kali families may have waited too long to enforce the investigatory duty. Lord Neuberger’s view was that the legal challenge ought to have been brought in response to the abandonment of the 1970 investigation, presumably by way of a petition to Strasbourg within a year of that date.

14. Secondly, the majority decided not to determine whether In re McKerr [2004] 1 WLR 807 remained good law on the question of the retrospective application of the HRA. In that case the House of Lords had held that there was no “ancillary right to an investigation of [a] death [of] a person who died before the Act came into force” except where an investigation had already begun but had yet to be concluded at that date. This was questioned in In re McCaughey (Northern Ireland Human Rights Commission intervening) [2012] 1 AC 725 and sits uncomfortably with the statutory purpose of the HRA which is to ensure that ECHR obligations are mirrored in domestic law. This question will need to be resolved in a future case.

Second Reason – Law: the door remains ajar on proportionality

15. In the event their international law arguments failed, the Batang Kali families had an alternative position which was that, tested to the exacting standards of proportionality, exercise of discretion to refuse an inquiry was unjustifiable. For this argument to succeed, they had to establish that proportionality replaced Wednesbury as the standard for justification for discretionary decisions in cases involving fundamental interests including the common law’s demand for an adequate explanation of deaths of detained persons which could be traced back to Coke’s, Second Part of the Institutes of the Laws of England (1642) p.52 and The Mirror of Justices, attributed to Andrew Horn (1305-1328), pp.30-31..

16. The Supreme Court declined to reach a decision on whether proportionality was now the proper standard of review, with the majority adding that this would be inappropriate for a five-Justice court. In the majority’s view, the result of the case would be the same regardless of whether the Respondents’ decisions were assessed to a proportionality or Wednesbury standard. Notwithstanding that, each edged a little closer to accepting proportionality was the way forward for the common law. Like Kennedy v Information Commissioner [2015] AC and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, Keyu will be an important paving stone in that path.

Third Reason – Law: Lady Hale’s dissent on rationality and the Divisional Court’s public interest factors

17. There are only two cases in which refusal to establish a public inquiry has been successfully challenged on conventional public law grounds (as opposed to HRA-based ones): Kennedy and Black v Lord Advocate 2008 SLT 195 and R (Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin).

18. For Lady Hale, Keyu should have been the third. Her powerful dissent sets out why, in her view, public and family interests were insufficiently weighed in the balance when discretion was exercised to refuse the inquiry the families sought. It merits very careful consideration for those drafting representations to decision-makers arguing for positive exercises of the same discretion more recent deaths as does the Divisional Court’s discussion of the public interest factors to be taken into account when such a decision is made (see paragraphs 157-175 of their judgment).

Fourth Reason – Law: responsibility reflects military reality

19. As mentioned above, one of the most extraordinary features of the Keyu litigation was the persistent denial of legal responsibility for the killings by the Respondents. They argued that in 1948 British troops in Malaya were legally the responsibility of either the Sultan of Selangor, or the Federal Administration, which was appointed by the Crown but semiautonomous. Either way, they argued, legal responsibility passed to the state of Malaysia upon independence.

20. Like the Divisional Court and Court of Appeal before it, the Supreme Court was having none of this sophistry and on this issue the Justices were unanimous. Under the pre- independence constitutional arrangements, the UK had been in complete control of the defence and external affairs of the State of Selangor and the Federation of Malaya. The British Army, while on active service there, had remained His Majesty’s forces under the command of the Crown exercised through the Army Council in accordance with the King’s Regulations. The Army had been deployed to further UK interests, pursuant to a command structure and orders that could be traced up to the Cabinet. Those killed at Batang Kali had been in the control of the British Army and so within UK’s jurisdiction. The grant of independence in 1957 did not transfer liabilities and obligations in respect of the deaths.

21. Keyu is a ringing endorsement of the reality of military command structures and the fact that legal liability responsibility should mirror them.

Fifth Reason – Facts: innocence

22. In 1948 and early 1949 the official account of the killings was that ‘bandits’ (a euphemism for Communists insurgents) had been lawfully unnecessarily killed in the course of a pre-planned escape attempt and that “a large quantity of ammunition had been found under a mattress”. Internal army memoranda observed that such villages were often rubber tappers by day and ‘bandits’ by night. The official account was repeated in Parliament by ministers, and adopted in the official history of the Scots Guards regiment to which the British troops belonged (“[s]uffice to say that those killed were active bandit sympathizers”).

23. When the campaign first was launched, the government responded by asserting that there was no reason to question the outcome of the past investigations and so none was reopen or otherwise investigate. When the final refusal decision was litigated, the position was being taken that it was near-impossible to reach conclusions about what had happened.

24. The Divisional Court saw things differently. On the basis of the available documents, it felt itself able to state:

“…there is no evidence, 63 years later, on which any of the 10 key facts relating to what happened at Batang Kali can seriously be disputed. It is therefore both helpful and necessary to an understanding of what happened after the deaths to set the 10 facts out.”

25. Those indisputable facts included that:

“i) Batang Kali was a village on a rubber plantation, inhabited by families. They did not wear uniforms, had no weapons and were a range of ages….

v) Interrogation of the inhabitants took place. There were simulated executions to frighten them, causing trauma.

ix) The hut with 23 men was unlocked. Within minutes all of the 23 men were dead as a result of being shot by the patrol.

x) The inhabitants’ huts were then burned down and the patrol returned to its base.”

25. By the Supreme Court stage, these and many more important facts had been agreed, enabling the Justices to add their own gloss to them. Lord Kerr and Lady Hale, for example, felt able to note the apparent innocence of those killed. This was hugely important for their family members, given the significance in Chinese culture of ancestral honour. The stigmatising way their family members have been described was finally mitigated

Sixth Reason – Facts: guilt

26. The Supreme Court did not stop there, however. Lord Neuberger recognised at paragraph 137 of his speech:

“[i]t is not as if the appellants have got nowhere: in these proceedings, the Divisional Court, the Court of Appeal and now this court have all said in terms that the official UK Government case as to the circumstances of the Killings may well not be correct and that the Killings may well have been unlawful.”
and at paragraph 111 he observed that, by 1969 and 1970 there was “evidence available to support the notion that they were unlawful and may have amounted to a war crime”.

27. Lord Kerr felt able to go even further at paragraph 204:

“The shocking circumstances in which, according to the overwhelming preponderance of currently available evidence, wholly innocent men were mercilessly murdered and the failure of the authorities of this state to conduct an effective inquiry into their deaths have been comprehensively reviewed by Lord Neuberger of Abbotsbury PSC in his judgment and require no further emphasis or repetition. It is necessary to keep those circumstances and that history firmly in mind, however, in deciding how our system of law should react to the demand of the relatives of those killed that the injustice that has been perpetrated should be acknowledged and accepted.”

Seven Reason – Costs: when justice demands a special costs order

28. Very occasionally, the courts will recognise that it is not in the interests of justice to award costs against an unsuccessful litigant in a public interest case. Even more rarely still, such a litigant who has succeeded on certain issues, but not secured the remedy they seek, will recover some of their costs.

29. In Keyu, in each stage the Defendants/Respondents sought costs against the Claimants/Appellants and indicated they were minded to enforce any order made. The Courts were unimpressed. No order for costs was made at any level. The Divisional Court went further still unexplained why not in a supplementary judgement:

“…looking at the overall justice of the case, we do not think it would either be right or fair to make an order that the claimants pay the costs of the Secretaries of State. The amounts to which the claimants would in reality be exposed might be quite substantial and in the light of the history of this matter set out in our judgment visiting on them a consequence in costs would be unjust”

Conclusion: judicial review as a truth-revealing process

30. Most student textbooks, and not a few judgments, will tell the reader that judicial review cases are about law not facts – that the search is for legal truth only. Keyu tells a different story, one in which the Courts, whilst unwilling to further legal remedy sought, refused to be complicit in this suppression of the truth which the respondents had so effectively perpetrated for six decades. This was a judicial review claim that prompted every judge who heard it to exonerate the victims of the killings, the majority of the Supreme Court to note, in understated terms, that a war crime may well have been committed, and one of their number, Lord Kerr, to make comments that go beyond the findings of many public enquiries into similar incidents.

31. Whether there will be state acknowledgement and acceptance of what happened beyond the judiciary remains to be seen. But it is their words that now overwrite the wholly false explanation offered up until now by the state for what happened at Batang Kali.

 

Supreme Court prepares to hear 1948 massacre survivors’ plea for British justice

From Bindmans

Date: 21 April 2015

Tomorrow (22 April 2015) Britain’s highest court will hear an extraordinary test case in which survivors of a 1948 massacre by British troops in colonial Malaya argue for a public inquiry into what happened and its six-decade long cover-up. The case has huge ramifications in Malaysia, where a campaign supported by 500 organisations has been pressing for justice for the survivors and their families, and in Northern Ireland, prompting an intervention in the litigation by its Attorney General and a response by the Pat Finnucane Centre and Rights Watch UK on behalf of families seeking accountability for British troops’ actions during the Troubles.

Amongst those who have travelled to attend the Supreme Court hearing is 78-year old Madam Lim Ah Yin. Her journey to the Supreme Court began in December 1948, when she was 11 years old, living on a British-owned rubber plantation in Selangor, Malaya. British troops surrounded and took control of her village, Batang Kali, separated the women and men, and began a series of interrogations to establish whether the villagers were supporting Communist insurgents. They included mock executions. The following morning she, her pregnant mother, one man and other women and children were put on a truck. The troops then took her father and 22 other unarmed men out from the longhut where they had been held overnight and shot every one of them. This incident is known as the Batang Kali Massacre (or ‘the British My Lai’). No-one has ever been prosecuted for it. The British government has never apologised. Indeed, in Court it will argue that the massacre is not legally its responsibility, despite Malaya then being a British Protected State, its nationals being British subjects, the troops involved being British, deployed on the instructions of the British Cabinet to protect British interests in the rubber trade.

The killings were portrayed as a military victory at the time, but in 1970 a number of the soldiers involved presented themselves, first to the press and then to the Metropolitan Police, to confess that they had murdered the villagers. The resulting police investigation was terminated prematurely by the government against the wishes of the officers involved. In 1993, a Malaysian police investigation began, but was also blocked by the British government.

Then, in 2008, a campaign began in Malaysia to press for a public inquiry into what had happened and its cover-up. The inquiry was refused by the government in 2010, but challenged in the legal case that reaches the Supreme Court tomorrow. No compensation is claimed; the remedy the families of those killed seek from the Court is an inquiry to secure truth, acceptance of responsibility by Britain and accountability.

Madam Lim Ah Yin said today:

“I have travelled here to stand before the most senior judges in the UK. I want to let them know the struggle and hardship that my beloved Mother suffered after the death of my Dad during the massacre. My Mother told me that she won’t be able to see the justice be done in her lifetime, and she passed away about a decade ago. I am 78 years old and I am determined to see the long overdue justice be done for my beloved father.”

John Halford of Bindmans LLP, the families’ solicitor, said today:

“Plainly, 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 soldier who fired them might be prosecuted. 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 answers 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 British justice.”

Notes for editors:-

1. Madam Lim, her granddaughter and others from Malaysia will be outside the Supreme Court tomorrow morning at 9.30 AM for photographs and to answer brief questions from the press.

2. The appeal will be heard from 10.30 AM onwards by five judges in the UK Supreme Court, led by the President of the Supreme Court, Lord Neuberger. The other four panel judges are Lady Hale – the Deputy President of the Supreme Court, Lord Mance, Lord Kerr and former prosecutor, Lord Hughes.

3. The families argue that Article 2 of the European Convention on Human Rights imposes a duty on the UK to commission an independent inquiry, despite the killings having occurred before the Convention was drafted and signed. They came close to victory in March 2014 when the Court of Appeal led by its second most senior judge, Lord Justice Maurice Kay, handed down a judgment stating that they would be likely to win in the European Court of Human Rights, but could succeed not at Court of Appeal level in the UK legal system. Very unusually, the Court of Appeal granted permission to appeal against its own ruling. Noting that the important principles on which their case was based had never before been tested in a UK court (judgment, para 71), the Court of Appeal held it was “probable” their case would succeed in the European Court of Human Rights in Strasbourg (para 83), adding “the appellants have forged the first link in the chain” (para 85) to establish an inquiry duty.

4. The original investigation into the killings in 1948-49 was subjected to withering criticism. The Court of Appeal commented “[w]e cannot escape the conclusion that the investigation at that time was woefully inadequate” (para 75). Later investigations, by the Metropolitan Police in 1970 and the Royal Malaysian Police in the 1990s, though incomplete, had unearthed evidence which “cast doubt on the original account” of a mass escape attempt being thwarted (para 82). This evidence included six of the soldiers involved confessing the killings were “murder” committed “in cold blood” (paras 37 and 43). The Court observed:

“The confessions which arose in 1969-1970 were of potential significance and remain so, not least because the investigation within which they emerged was brought to an abrupt halt. They have never been tested or discredited. The sum of knowledge has been significantly increased by the work of the Royal Malaysian Police twenty years ago but they were unable to secure meaningful co-operation from the United Kingdom authorities” (para 82).

5. All this meant there was a connection between the killings, the original inadequate investigation, the UK’s signature and ratification of the European Convention on Human Rights and the subsequent failure to undertake an inquiry when the new evidence came to light:

“The ‘genuine connection’ test focuses not only on what took place, pursuant to the article 2 procedural obligation, after the critical date but also on what ‘ought to have taken place’. In view of the limited nature of the investigation which took place before the critical date and the potential significance of the new material which has emerged since the critical date but which has never been subjected to the full rigour of independent evaluation, it is our view that, whilst we cannot predict with certainty what the ECtHR might decide, it is probable that it would find the ‘genuine connection’ test to be satisfied in this case” (para 82).

6. But the Court went on to hold that the Human Rights Act could not be used to enforce the family members’ Convention rights because the Supreme Court had not given clear guidance on the extent to which it applied to past events, noting that a “move in that direction would now be a matter for the Supreme Court, rather than for us” (para 100) and “it is for the Supreme Court in an appropriate case, to decide whether to change its jurisprudence so as to bring it into line” with current European Court of Human Rights case law, in particular the Janowiec v Russia decision which also concerned a historical massacre (para 86).

7. The families are represented by Michael Fordham QC, Danny Friedman QC, Zac Douglas QC and John Halford of Bindmans LLP.

News Articles:

5 Facts About The ‘Batang Kali Massacre’

From Greater Malaysia

1948, the aftermath of World War 2. As Malaya frees itself from the clutches of Emperor Hirohito, an old colonial power returns to restore order and governance.

However for some, anarchy begets anarchy. Forces funded by the Queen to fight against the Japanese ignored orders to disband and turned their rifles to British soldiers instead. These groups became the groundwork into what became the Communist insurgency.

In response to the escalating threat from Malaya’s own Marxists, the British declared an “emergency” that gave them huge discretionary powers. They adopted a zero tolerance policy against communist sympathisers. This, coupled with the lack of sensitivity training on the local populace makes for a volatile situation.

As Raymond Burdett of the Suffolk Regiment puts it:

The trainers sought to get us to follow instructions, not to question commands.

Basic training for these troops focused on infantry skills, not their ability to judge the appropriateness of orders in the context of international law.

That fire was ignited in the December of 1948 when 7th Platoon, G Company, 2nd Scots Guards rounded up civilians for interrogation at Batang Kali, Selangor.

The process did not end well and led to the massacre of 24 civilians. Not content to stop there, their houses were burnt to the ground, leaving their relatives destitute and lost all source of income.

The official story was that the victims escaped from custody, prompting the soldiers to shoot the supposedly fleeing men. There was no mention of the battalion going rogue.

The case was however recently reopened and Britain’s highest court will be hearing the case on April 22nd.

In memory of the victims and in honour of the new inquiry, here are a few facts on the upcoming judicial review challenge for the Batang Kali massacre and its impacts.

1. The Eyewitnesses & Their Accounts

Romen Bose Tham, an eyewitness to the atrocity | Source: Getty Images

Romen Bose Tham, an eyewitness to the atrocity | Source: Getty Images

The slaughter did not eliminate all eyewitnesses. The spouses and relatives of those murdered managed to escape the onslaught only to see their dead relatives. The only adult eyewitness was a man named Chong Hong, who was in his 20s during the massacre.

One notable eyewitness was Lim Ah Yin, who was 11 when her father was murdered. According to The Guardian, she will be heard in the British Supreme Court for a judicial review challenge.

In a Guardian Interview, she was quoted describing the atrocity:

A soldier pointed at my father. 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.

A week after the incident, Lim returned to her village with her mother. The sight she saw was not a positive homecoming.

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.

2. The Aborted Investigations

Scot Guards in1950s Malaya | Source: Getty Images Photographed By: Haywood Magee

Scot Guards in1950s Malaya |
Source: Getty Images Photographed By: Haywood Magee

Prior to this judicial review, there were 2 aborted investigations. The first investigation was made by Scotland Yard in the 1960s.

In a Central Officer’s Special Report from the Criminal Investigation Department, New Scotland Yard dated 30th of July 1970, it was stated that the case was closed at the order of the Director of Public Prosecution.

The report claimed that the investigations were “politically motivated.” This was sensitive as the Conservatives just formed the government and enforced their political stance. The expose made by the “The People” newspaper that obtained testimonies from soldiers was dubbed a “publicity stunt”.

At one point, the Liberal Party president claimed that Bob Edwards, the then-editor of The People should be charged with criminal libel for his actions.

In 1993, the BBC produced an expose on the murders in their documentary series, In Cold Blood.

The shocking video ignited political will to open up investigations on the case. This led to the 2nd investigation led by the Royal Malaysian Police. The investigation, like the former was also aborted.

In the case of Keyu & Others v Secretary of State For Foreign and Commonwealth Affairs & ANR, there was an internal memorandum that claims that there is no specific need to provide rapid assistance to the Royal Malaysian Police.

The investigation required information from the Chief Pathologist that has examined the bodies and the names of the Scots Guard involved. However, all information was delayed.

In fact, it took a full year for the names of the Scot Guards to reach the Malaysian Police.

3. Admission To Murder

Prisoners detained in Malaya by British troops. | Source: Getty Images

Prisoners detained in Malaya by British troops. | Source: Getty Images

When American journalist Seymour Hersh covered the Vietnamese My Lai massacre, the debate on soldiers committing atrocities went beyond the Atlantic Ocean. Inspired by the expose, former serviceman William Cootes confessed to being part of the Batang Kali massacre.

Contrary to the official version of the story, he explained that his platoon commander, George Ramsay briefed his men to wipe out anybody in the area. This meant that the men shot were not running away from custody but victims of a war crime.

His confession became a domino effect and led the rest to admit their part in the killings. Below is an extraction from the same Metro Police report used prior..

Source: Metropolitan Police UK via the Freedom of Information Act

Source: Metropolitan Police UK via the Freedom of Information Act

However, doubts were raised on their confession. The police claimed that the confessions were made with questionable conduct.

Source: Metropolitan Police UK via the Freedom of Information Act

Source: Metropolitan Police UK via the Freedom of Information Act

4. Forensic Evidence Was Still Obtainable

Professor Sue Black, the Forensic Adviser to the Malaysian Victims| Source: The Sun UK

Professor Sue Black, the Forensic Adviser to the Malaysian Victims| Source: The Sun UK

A common trope that has been played out as the story unfolds is that evidence has not been sufficient.

In the first Scotland Yard investigation, the then-Attorney General, Sir Peter Rawlinson claimed that there was a low probability of obtaining sufficient evidence. It was concluded that the investigation needs to be terminated.

In response to the an inquiry made by the ” Action Committee Condemning the Batang Kali Massacre” to the Foreign Secretary in December 2008, the high commissioner responded:

In view of the findings of the two previous investigations that there was insufficient evidence to pursue prosecutions in this case, and in the absence of new evidence, regrettably we see no reason to re-open or start a fresh investigation.

However, Prof Sue Black, a forensic adviser informed The Guardian that evidence was still obtainable. According to her experience in Kosovo and Rwanda, evidence is still obtainable from the victim’s bodies.

Obtaining such evidence would refute the High Commissioner’s reply.

5. Impact to the Northern Irish Conflict

Source: Skepticism.org

Source: Skepticism.org

Lawyers for the families of the victims argued that Britain has a duty to commission an independent inquiry under the European Convention on Human Rights. However, the convention came only into effect in 1998.

Because this applies a convention retrospectively, this would affect other situations that the British has been involved in the past. This is especially of concern for family members that still seek for reparations.

One issue that has been brought up are the allegations thrown to the Brits during the Northern Irish conflict, also known as the troubles.

In an interview with the Guardian, Yasmine Ahmed, director of Rights Watch UK was quoted saying:

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.

Conclusion

Despite how heart-wrenching the situation is, there is no way that the victims can have their situations restored. Reparations can only repair the physical, but not the psychological.

John Halford, a solicitor at the law firm Bindmans puts it best.

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.

The least that the British government could do, is to at least acknowledge the war crimes a rogue squad did under their flag.

The lesson of this issue however does not stop in the British Isles. Malaysians tend to remember the “Malayan Emergency” as a period of heroism where a democratic country was able to ward off the fascist tendencies of the Malayan Communist Party.

While Greater Malaysia isn’t condoning the violent terrorist acts of Chin Peng’s foot soldiers, we have to acknowledge that our people once were in line with British soldiers that facilitated this slaughter.

The adaptation of a zero tolerance policy against communism led to the aggressive tendencies demonstrated here. In a desperation for victory on what was a faceless guerrilla force, these soldiers went to the extreme to proof there is an enemy out there.

This serves as a warning when dealing with another person of a different political ideology as ours. At what point can we find out that a person is willing to kill the innocent to protect an ideology?


Share us your thoughts on the issue.

Reference

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

Central Officer Report, Subject: Alleged Massacre in Malaya (30th July 1970)

Keyu & Others v Secretary of State For Foreign and Commonwealth Affairs & ANR

Batang Kali: Britain’s My Lai?

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.”