"..if any government accepts this equivalence between actions fifty five years ago and actions five years ago then the Hague is undermined and Human Rights abusers can escape justice."
A group of Kenyans are currently launching a case for compensation against the British Government for actions during the Mau Mau rebellion in the 1950s. Archbishop Tutu was on the radio this morning supporting this claim.
The case is interesting because it deals with the legal possibility of holding racial, tribal or national groups responsible for events that are over 50 years old. I am following the case closely because, as a person of English descent the British government stole my birthright in 1066. The modern value of the lands that they appropriated must be at least a million pounds. They probably also tortured and murdered one of my relatives and that must be good for £500,000. And then there was the Civil War and the various continental wars, maybe I can sue the Spanish and French. Some relatives ended up in Canada, no doubt expelled from the USA during the War of Independence so there is a pretty penny to be claimed from the US Government. Nearer to the present day, my Grandfather told me about horrendous behaviour during the first world war. I have grounds for prosecuting both the British Government and the Germans for this. All in all I have a good chance of getting a few million in compensation, all I need is the phone number of the lawyers who are representing the Kenyans - assuming they are on a no win no fee deal.
Another interesting aspect of this case, apart from mining history for compensation, is that the people involved have changed in status from being suspected left-wing insurgents who may have murdered their own people to National Heroes who may have contributed to the impetus towards independence (even though Kenyan independence was a peaceful affair in the end and part of voluntary decolonisation by the British). There can be little doubt that changes in fashions in historical analysis and national myth building, are a driving force in these claims: in 1958 the Kenyan Administration would have demanded that the Mau Mau compensate them for the damage they caused, in 1969 the independent Kenyan Government would have been very wary of giving the Mau Mau any recognition at all because of the communist insurgencies in the Cold War but in 2011 they are National Heroes. The Mau Mau have gone from being banned by the Kenyan Government until 2003 to heroes in 2011. So who is "blameworthy" varies over the decades - litigation must strike in a decade where the claimant is considered the victim rather than the perpetrator.
The most important feature of this case is that it tests the limits of the liability of present States for the actions of past States. In ordinary criminal law it is seldom ever the case that children are held responsible for the actions of their fathers but there seems to be a loophole in the law as it affects the British Government that gives litigants the hope of perpetual liability. There are two factors in this issue of liability, the first is how long a state can be held responsible for its actions and the second is how long individuals can be held responsible. The second factor is apparently straightforward, individuals should be held responsible for serious breaches of the law for their entire lives, however, in the case of actions overseas there is a problem of which jurisdiction should be used. The limitation of state liability is more complex.
Is the responsibility of a state continuous through different administrations or does it change at each election or coup? The complexity of the State's liability can be seen in South Africa: when the ANC gained power should they then have compensated all of those people who had suffered as a result of white actions during Apartheid? They avoided this financial burden by setting up the "Truth and Reconciliation Commission" but was this no more than a smart move by Tutu to avoid doling out the cash to half of the people of South Africa? The complexity of State liability is also evident at the end of wars, when the Allies occupied Germany should they then have compensated the Germans for bomb damage and also, as the governing authority, paid reparations for the damage the Germans did to everyone else? If states are continuously and generally responsible for past actions should we all employ historians to discover any wrongs that may have been committed to our ancestors back to the ice age and then bring court cases against every succor government in the world? This is obviously nonsense and it is clear that there must be some limitation of the period over which states continue to be liable for previous actions.
My best guess is that State liability should be limited to 25 years - a generation - this stops random shifts in blameworthiness affecting outcomes and also means that those who were actually involved in actions can defend them or pay for them. A limit of 25 years for State liability also takes into account the fact that States can go from being third world to first world in about 25 years (cf: South Korea, Malaysia, Taiwan) and can fully recover from awful wars in this time (UK, Germany, Japan). Twenty five years also accounts for infrastructure, such as ancient buildings and roads, which must be renewed or renovated. In general after twenty five years the blame for the state of any nation can be laid squarely on the shoulders of its current population rather than laid at the door of previous colonial rulers etc.
The real motivation for belated claims is another interesting issue. In Africa there is a deep need to blame the colonial administrations of the distant past for current bad governance and this Mau Mau case is probably in this class. There is also the possibility that the supporters of Uhuru Kenyatta are involved because if it can be shown that the British are currently responsible for events 55 years ago then they are currently as culpable as Uhuru Muigai Kenyatta who is now on trial at the Hague for human rights abuses committed by his government 4-5 years ago. Indeed, if any government accepts this equivalence between actions fifty five years ago and personal actions five years ago then the Hague is undermined and Human Rights abusers can escape justice. Another motivation is that venal lawyers get a huge PR boost from cases that catch the gaze of the world's media. Finally there is the financial motivation. However, whatever the motivation for claiming cash from the British State there is indeed a valid claim for justice against the individuals who may have perpetrated crimes against these Kenyans.
My advice to the British government is to enact a statute of Limitation of State Liability at 25 years. If they do not do this any lawyer or foreigner who wants international publicity will see such litigation as fair game. If the government does not introduce a Statute of Limitations it can also be held that the British accept responsibility for 'their' past actions now, that the current British are guilty now of historical crimes, and this allows any current human rights abuser to claim that they are morally equivalent to the British. Without limitations we collude in absurdly tensed statements such as "you British ARE guilty of the slave trade so why should we listen to you?" and hence aid bad guys anywhere in the world to act as our great or great, great, great grandfathers acted.
However, returning to the poor old Kenyans, justice for them lies in uncovering the perpetrators of the crimes against them. If it can be shown that individual members of the British Government or their armed forces were acting illegally according to the laws prevailing at the time and these illegal actions resulted in injury to these people then the injured have the right to prosecute those individuals for their entire lives. Given that prosecutions of this type are not contentious it is strange that the victims are going for the money rather than for justice. Pursuing the guilty will make individuals within government think long and hard before approving certain acts.
As for my personal position, when it comes to the liability of the government I consider myself to be English, not British, so if they make me pay out for the historical sins of our oppressive overlords I will be particularly irritated. Should the USA pay for the historical crimes of the British simply because they were once part of the Empire? If not then why should an Englishman be liable simply because he has failed to escape from the yoke of British rule?
4/7/11
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| A Kikuyu Chief assassinated by the Mau Mau History Today |
The case is interesting because it deals with the legal possibility of holding racial, tribal or national groups responsible for events that are over 50 years old. I am following the case closely because, as a person of English descent the British government stole my birthright in 1066. The modern value of the lands that they appropriated must be at least a million pounds. They probably also tortured and murdered one of my relatives and that must be good for £500,000. And then there was the Civil War and the various continental wars, maybe I can sue the Spanish and French. Some relatives ended up in Canada, no doubt expelled from the USA during the War of Independence so there is a pretty penny to be claimed from the US Government. Nearer to the present day, my Grandfather told me about horrendous behaviour during the first world war. I have grounds for prosecuting both the British Government and the Germans for this. All in all I have a good chance of getting a few million in compensation, all I need is the phone number of the lawyers who are representing the Kenyans - assuming they are on a no win no fee deal.
Another interesting aspect of this case, apart from mining history for compensation, is that the people involved have changed in status from being suspected left-wing insurgents who may have murdered their own people to National Heroes who may have contributed to the impetus towards independence (even though Kenyan independence was a peaceful affair in the end and part of voluntary decolonisation by the British). There can be little doubt that changes in fashions in historical analysis and national myth building, are a driving force in these claims: in 1958 the Kenyan Administration would have demanded that the Mau Mau compensate them for the damage they caused, in 1969 the independent Kenyan Government would have been very wary of giving the Mau Mau any recognition at all because of the communist insurgencies in the Cold War but in 2011 they are National Heroes. The Mau Mau have gone from being banned by the Kenyan Government until 2003 to heroes in 2011. So who is "blameworthy" varies over the decades - litigation must strike in a decade where the claimant is considered the victim rather than the perpetrator.
The most important feature of this case is that it tests the limits of the liability of present States for the actions of past States. In ordinary criminal law it is seldom ever the case that children are held responsible for the actions of their fathers but there seems to be a loophole in the law as it affects the British Government that gives litigants the hope of perpetual liability. There are two factors in this issue of liability, the first is how long a state can be held responsible for its actions and the second is how long individuals can be held responsible. The second factor is apparently straightforward, individuals should be held responsible for serious breaches of the law for their entire lives, however, in the case of actions overseas there is a problem of which jurisdiction should be used. The limitation of state liability is more complex.
Is the responsibility of a state continuous through different administrations or does it change at each election or coup? The complexity of the State's liability can be seen in South Africa: when the ANC gained power should they then have compensated all of those people who had suffered as a result of white actions during Apartheid? They avoided this financial burden by setting up the "Truth and Reconciliation Commission" but was this no more than a smart move by Tutu to avoid doling out the cash to half of the people of South Africa? The complexity of State liability is also evident at the end of wars, when the Allies occupied Germany should they then have compensated the Germans for bomb damage and also, as the governing authority, paid reparations for the damage the Germans did to everyone else? If states are continuously and generally responsible for past actions should we all employ historians to discover any wrongs that may have been committed to our ancestors back to the ice age and then bring court cases against every succor government in the world? This is obviously nonsense and it is clear that there must be some limitation of the period over which states continue to be liable for previous actions.
My best guess is that State liability should be limited to 25 years - a generation - this stops random shifts in blameworthiness affecting outcomes and also means that those who were actually involved in actions can defend them or pay for them. A limit of 25 years for State liability also takes into account the fact that States can go from being third world to first world in about 25 years (cf: South Korea, Malaysia, Taiwan) and can fully recover from awful wars in this time (UK, Germany, Japan). Twenty five years also accounts for infrastructure, such as ancient buildings and roads, which must be renewed or renovated. In general after twenty five years the blame for the state of any nation can be laid squarely on the shoulders of its current population rather than laid at the door of previous colonial rulers etc.
The real motivation for belated claims is another interesting issue. In Africa there is a deep need to blame the colonial administrations of the distant past for current bad governance and this Mau Mau case is probably in this class. There is also the possibility that the supporters of Uhuru Kenyatta are involved because if it can be shown that the British are currently responsible for events 55 years ago then they are currently as culpable as Uhuru Muigai Kenyatta who is now on trial at the Hague for human rights abuses committed by his government 4-5 years ago. Indeed, if any government accepts this equivalence between actions fifty five years ago and personal actions five years ago then the Hague is undermined and Human Rights abusers can escape justice. Another motivation is that venal lawyers get a huge PR boost from cases that catch the gaze of the world's media. Finally there is the financial motivation. However, whatever the motivation for claiming cash from the British State there is indeed a valid claim for justice against the individuals who may have perpetrated crimes against these Kenyans.
My advice to the British government is to enact a statute of Limitation of State Liability at 25 years. If they do not do this any lawyer or foreigner who wants international publicity will see such litigation as fair game. If the government does not introduce a Statute of Limitations it can also be held that the British accept responsibility for 'their' past actions now, that the current British are guilty now of historical crimes, and this allows any current human rights abuser to claim that they are morally equivalent to the British. Without limitations we collude in absurdly tensed statements such as "you British ARE guilty of the slave trade so why should we listen to you?" and hence aid bad guys anywhere in the world to act as our great or great, great, great grandfathers acted.
However, returning to the poor old Kenyans, justice for them lies in uncovering the perpetrators of the crimes against them. If it can be shown that individual members of the British Government or their armed forces were acting illegally according to the laws prevailing at the time and these illegal actions resulted in injury to these people then the injured have the right to prosecute those individuals for their entire lives. Given that prosecutions of this type are not contentious it is strange that the victims are going for the money rather than for justice. Pursuing the guilty will make individuals within government think long and hard before approving certain acts.
As for my personal position, when it comes to the liability of the government I consider myself to be English, not British, so if they make me pay out for the historical sins of our oppressive overlords I will be particularly irritated. Should the USA pay for the historical crimes of the British simply because they were once part of the Empire? If not then why should an Englishman be liable simply because he has failed to escape from the yoke of British rule?
We are determined to have independence in peace, and we shall not
allow hooligans to rule Kenya. We must have no hatred towards one
another. Mau Mau was a disease which had been eradicated, and must never
be remembered again.[224]
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