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There should be a statute of limitations on war crimes
The present government should be held accountable for the Empire
This is about a justice and a proper moral evaluation of the past
This is about pursuing current political goals
It's important to bring to justice the actual perpetrators of atrocities or war crimes
but it's a different matter if courts are being used, as I think they are in this case, as a kind of propaganda exercise against colonialism.
and relevant compensation and if we fail to learn from the mistakes of the past, we are more likely to repeat them.
but I believe that those who have suffered oppression have a right to a hearing
There might be a right to compensation in this case, where the evidence is pretty clear,
and it tends to be about political aversions in the present clarity about the past.
but in general the attempt to deal with the colonial period through the judicial system isn't the right way to go
I don't see any problem with doing the right thing, even though it is late in the day,
but an injustice was committed and it can be corrected and therefore should be.
The broader question, of whether this should become a kind of symbolic moment, I don't think ought to apply.
That might get in the way of justice being done and that's what counts
It's a case for damages as a result of the torture that the three claimants who are surviving experienced.
The solicitors for the claimants in terms of their public strategy, their public relations strategy, have made it very clear, this is not a colonial reparations case.
It is a very specific case, it has a very specific context, there are very specific victims.
From your point of view, even if this hearing itself or the damages claims by these three individuals are concerned, should it be the occasion for examining the colonial legacy?
because the colonial context is absent and without recognising colonialism, it's very hard to understand what actually took place.
You said it's quite specific and you think of it as one specific legal trial with evidence that can be weighed and damages which may then be awarded
but you've also said that it's more broadly about colonialism.
Surely that requires a very different approach.
Justice to me would be multi-facetted.
Of course, there is value in specific cases, we have to acknowledge that there are survivors, who have never experienced any form of recompense, you know, these are elderly victims, they do need to be compensated for the crimes that were committed against them.
However, we must not lose sight of the fact that they represent a class of people, and there are many other survivors who do not currently have access to justice.
This took place in the colonial era.
We also know that there were atrocities on both sides, including in this big group of people that you've just referred to,
Actually it was an unjust war that was being levelled against the Africans.
This was a war of liberation.
They were dispossessed of their land, which began formally, in terms of the carving up of Africa,
But we cannot take away the fact that these were people who were simply fighting to reclaim their lost lands, and it was a freedom struggle.
Yes, it was a struggle of liberation and I would refute the notion that these were terrorists,
I think that was a label that was given to them and it was a label that was very loaded and of course when you classify people as terrorists then you are seeking to dehumannise them
So the guilt must be on the side of the colonial power
So it's a symbolic case, to open a wider door?
We have to go to the roots of this problem. We don't look at it halfway through
For some people it is
For me it is actually very significant,
My understanding of international law is that there is no statute of limitations, I think it would be totally different if the survivors had all died.
why the current government of today should be held liable is because there is an outstanding crime that has been committed, these were not only, you know, crimes of torture, there were war crimes committed, there were crimes against humanity.
Obviously we cannot for legal reasons go into sort of identifying individuals,
I disagree that there were not specific perpetrators.
Why should the present government of Britain be held responsible for responsibility for the these atrocities of its predecessor administration many decades ago?
Isn't the problem though that there are not very specific perpetrators?
But actually, you have living victims.
I understand your point and of course there are living victims and no one would deny that they were treated in an appalling way,
they should face trial
I mean, there's no statute of limitations for murder,
but you have just muddled up civil and criminal cases.
and one can certainly say - this is my point, if there are specific perpetrators, if you have a tie rant, if you have a group of military officers who are accused of committing a war crime, then for sure, there should be no statute of limitations in prosecuteing them.
You have a specific perpetrator.
What's happening in this case is not the prosecution of a crime, it is a claim for compensation against the present government, which had no responsibility for what happened.
Isn't that a source of injustice?
They do bear responsibility.
Because those liabilities actually transferred back to the British Government, certainly that would not be the British Government's view,
but that would be the view of the claimants and their representatives.
And also the current government of Kenya.
It does strike me that you are in fact saying that the context is colonialism
but one could equally say the context for the atrocities having been carried out by agents of the British Government at the time, the context was the atrocities being carried out against them by the Mau Mau.
It's only for you colonialism that is on trial here, not the behaviour of the insurgeents at the time.
So the wider context I actually go back to what I said in the beginning, it is the colonial dispossession,
and so yes, there were insurgent as you would call them, we would say freedom fighters, and they did what they had to do in order to maintain a liberation struggle.
And that is not something that is foreign to British history.
It seems to me a mixture of arrogance and absurdity.
There are three people who it seems very likely suffered, they suffered in the context of imprisonment possibly, the way they suffered was a crime, in almost any jurisdiction in the world it would be seen as a crime, they have the opportunity now to try to seek justice, the closest they can get to the people who actually committed this is the British state, and they're pursuing their case.
Well, there are two things here. First of all, there are three people seeking legal damages for injuries suffered 60 years ago.
And certainly from what one knows of the background, this sort of thing certainly happened in Kenya, it has been known about for 30 years.
as the closest they can get to the people who perpetrated this is the British state, indeed the state benefitted from colonialism in a variety of ways, that it's reasonable that they should seek recompense from the British state?
Otherwise they have nowhere to go.
Otherwise we're simply saying, well, the people who did this to you have gone, the injustice is somehow over.
This is a ism ideology, very often some of the countries like Portugal who ran colonyies were desperately poor themselves 6789 let's get rid of rich and poor.
Let's say a number of European states and Far Eastern states like Japan and eventually the United States obtained the government, by various means, of large areas of the world in the 19th century and they had colonies.
They didn't have a - they had a variety of colonial ideologyies.
Look, lots of things may have happened during the controllial rule but that's not my point.
The point we're discussing is this: if things under that colonial rule that happened were crimes, is it a reasonable thing for people today, who were the victims of those crimes, to seek to use the British courts to publicise what happened to them and to seek recompense?
Yes, an English judge has said that.
You're a historian of this period and you know very well that even by the standards of 1959/1960, cold blooded murder was committed by British servicemen against prisoners.
That's a crime then, not just a crime now.
It certainly was, and the details of these outrages were known in London, they were repeated to the colonial office, Churchill had a vivid description of them
Sorry to stop you, but where is this business of not judging the present by the past then?
Well, I am saying that these crimes were committed, and I think it's extraordinarily regrettable that the military and colonial authorities did not punish those responsible, a few were,
Kenya was in a state of panic, had a second rate governor, the local commander found him hopeless.
Can we agree there should have been court martials?
In this confusion the crimes were committed
Crime is not a debt.
Isn't our whole posture in Africa at the time that we were a civilised country and we behaved in civilised ways?
It was a ghastly aberration.
Or was it in fact typical? Was it the product of a policy that was unsustainable that could only be pursued by increasing repression?
It is the product of a policy conceived in - by the Cabinet, in the context of the Cold War, when the imperial nations like Britain were being accused of oppression, at the same time there were colonial insurrection movements, one in Vietnam and so on and so forth, and the British Government is in a near state of funk about what will happen in their Empire, there is insurgeensy
Not to be in a funk when you are reading intelligence reports which suggest your Empire is under sustained assault. We know it wasn't.
This being the mess, a major injustice was committed, a legal remedy exists, what's wrong with doing the British thing, owning up and paying up?
and rationally going through the evidence and finding complete proof, total proof that these people suffered injuryies in such a place in such a way,
Lee Jasper, is it your position that the current British Government has a lot more to apologise for in terms of colonialism than the ill-treatment of some now elderly Kenyans?
It goes to the route of the modern malaise of a noninclusive notion of British citizenship.
I think the relics of colonialism, racism and the current dystonia around in relation to people groping focus a kind of inclusive British citizenship that relieves them of the guilt of their - of the past,
and opens up a vista of an inclusive future, actually relies on, to some extent, Britain having a truth and reconciliation moment, and saying, regardless of what the specificityies of legalities are, and they can produce some pretty perverse judgments, as we all know, the moral case is absolutely unanswerable, and we ought to do the right thing
You say that Britain is noninclusive,
but I mean, relative to many other countries surely it's an exemplar of inclusiveity, for example, in contrast to, say, America, you don't have a kind of polarisation between black and white here in the way that you do there.
So in what sense is - you know, is Britain's history responsible for a lack of inclusiveness?
because whilst the African Americans are socially segregated from their American cousins, they are economically integrated.
But is it your view that the history of colonialism, maybe the history of slavery, is responsible for racism in Britain?
I don't agree black people can be racist in the United Kingdom context. They can be racially offensive MP: They can't be prejudiced against white people? JA: If you let me finish, I'll explain what I'm saying to you. I believe that black people in the United Kingdom, in order to effect racism, you really need, in the proper sense of the word, you need prejudice and power.
They can't be prejudiced against white people?
I believe that black people in the United Kingdom, in order to effect racism, you really need, in the proper sense of the word, you need prejudice and power.
And it's not something that is within the scope of very many black British citizens, here in the United Kingdom or Europe.
then racism is not just a dictionary definition, but it is imbued with geography, history and culture
There is no universal definition in relation to its application
So prejudice and power is a Marxist concept.
What you are saying is people who are powerless cannot be prejudiced.
So when black people say, for example, Jews control the banks, that's not prejudice?
but it's not racism
That's racially offensive,
It's not racism? I see.
Because you can be convicted of being racially offensive without being a racist.
I have heard lots of judgments of people being found guilty of uttering racially offensive remarks without themselves being what I would call a card carrying racist.
Why would this Mau Mau case help in any way your argument about promoting more inclusiveity for black people in Britain today?
I'm not making that argument, I'm responding to the question.
What I'm saying is the whole question of Britain's unresolved acknowledgement and apology and reparation for the horrific period of colonialism is a difficulty, a barrier towards reaching towards a modern inclusive notion of British citizenship
Is that because you seem revisiting your politically specific views on a lot of black people who might take the view,
like Lawrence James, that there is no one colonialism, there are different bits of the colonial history
but because you want it all to be horrific, you want to marshal it to a politics of grievance.
and some of it was good and some of it was absolutely reprehensible
The trains ran on crime,
Yes, in order to finance the trade and the extraction of resource in African countries,
infrastructure was built and there was a degree of benevolence,
but overall, if you ask people who have been subject to colonialism, it is an experience that leaves them financially much poorer, psychologically degraded in terms of their humanity
I think they are due reparation.
Thousands were made landless, homeless and reduced to absolute poverty and generations of families have not been able to recover from that, and acknowledgement and reparation for that is the minimum moral requisite position that is required from the United Kingdom.
And if Britain thinks that it can move on to an inclusive citizenship without addressing these historical relics of colonialism that continue to plague contemporary debates about citizenship then frankly it's fooling itself
What do you think? Do you think we have got a lot to apologise for?
I don't think we do.
It very much depends on the specific incident you are talking about and which side are you going to go on?
We are talking about the violence which may have been perpetrated against Mau Mau suspects
Well, the government has acknowledged that they were ill treated in court,
but what about the violence that the Mau Mau perpetrated against settlers and particularly loyal Africans.
Can we for a moment sit in judgment on British society at the end of the 1950s when news first came of the horrific massacre of Mau Mau prisoners in Kenya.
Wide swathes of British public opinion and the media and the Prime Minister and most of the Cabinet were horrified and disgusted then, not now, then, and decided that this had taught an important lesson that the only way in which the British presence in Africa could be sustained was brutality and therefore the only way forward was for Britain to withdraw.
But my point is they got to a point where Macmillan realised there was no way forward except by increasing brutality.
By the 50s, the Empire is going, everyone knows that and they are effectively trying to hand over to some kind of stable rule and in certain circumstances you have to suppress
You are saying that the Hola circumstances and the shock did not change the public consciousness about ourselves as an imperial power, and realised it was morally unsustainable from then onwards?
There are other instances that bring up questions about imperial rule but the key thing in British society is the horror at the violence of the Mau Mau which is profoundly shocking.
The horror that was going round there, which nearly cost Macmillan his election, was horror at the way the British Army had behaved, not at Mau Mau.
Let's be straight, the situation in Kenya was a bloody dirty war,
but it's a situation where, you know, six years before the start of the Kenya emergency, the British Army in India is being hammered because it's not brutal enough, by the nationalists and the Muslims, they say you are not shooting people or controlling the population, you are basically letting us die.
So if you have an army it has a responsibility to protect its citizens and protect other African communities
so in a sense we're saying that, you know, we're criticising the fireman
but in the context of what we're talking about tonight the strange phenomenon then occurred, where the British went in denial and have been in denial ever since.
About the way in which the British Army, on behalf of the British state, had behaved towards the colonial peoples towards the end of Empire
No, we have known about these things for years, there is nothing new in this, in Kenya and the problems we had in India, end of Empire is always a difficult bloody thing,
but to pin the blame on the British for this is simply absurd, it's not true.
britain did not do anything wrong
So is it is it your contention that the reason the British went around the world creating an Empire was they were responding to a call for help?
I thought they did it to extract maximum wealth from the Empire in order to boost their imperial power and the fortunes of domestic governments and citizens.
Where was the fire that we were responding to?
What you have is an outbreak of revolt.
I am interested in the notion of equivalence.
You are arguing for equivalence, that we should see the behaviour of British troops as being equivalent to the behaviour of the people who are fight to get their country back.
I'm not sure I have.
But we started the fire. Firemen don't normally start the fire they put out
But what starts the Mau Mau revolt? The Mau Mau revolt starts that.
The position is that imperialism by default is illegitimate, then that is your position, I don't take that, and then you go into moral judgments which are quite pointless.
Imperialism, if it's not by default wrong, then it's not wrong for a country to walk into another country and take it over
There are good nation states and bad nation states.
What you have in a lot of places the British go in, there is no country or sovereign state, these concepts don't exist in the 17th century, it's completely misleading to talk about mid 20th century legal terms as if they apply to the 16th and 17th century, this is where a lot of the misconceptions, why did we go into India?
Because you had a variety of kings
Let's take the idea that the British Empire was driven by benign motives and responding to the demands of the places we took over,
but I want to explore the value now of us understanding the ways in which people can behave when they're given guns and told that the people they're ruling over are subhuman and extremist.
It seems to me that that kind of attitude could be seen, for example, recently in Iraq.
So isn't there something useful in being reminded of what happens to people in these circumstances?
Under stress, people, when they are afraid, when they are - they don't have intelligence or orders or resources, can behave in ways in which we would deplore and that's human nature, that's humanity.
If they are the people with the guns and running the countries, shouldn't they be subject to a higher - just as we expect higher behaviour, better behaviour of people in authority, the police and the army, than we do of other people, shouldn't that similarly apply in this context?
So there is no moral equivalence?
If British verse killed people that's different from Mau Mau killing people, isn't it?
There's cause and effect.
If you have a revolt and people being murdered, it is the responsibility of the government to protect those people.
The question we seem to be arguing is they used too much force.
There is such a thing as rules even in a liberation situation, the principles of just war apply.
You aren't allowed, for example, to attack innocent civilians, exactly what the Mau Mau did.
So I don't think that moral defence of this liberation struggle washes
I think I would want to adopt a slightly nuanced position.
On the one hand, I don't accept that all is fair game if you are oppressed.
On the other hand, I don't accept that we should treat the behaviour of those who, as it were, have the guns and have the power with the same - we should treat it as being equivalent to the behaviour of those who are oppressed and fighting for freedom
It's difficult to explore, it is what we will explore in this case.
but she seemed to be listing towards the idea that colonialism, as variously described tonight, was on trial,
so you're putting an era on trial.
Melanie Phillips, the first and third witnesses didn't seem to draw much 6 a distinction between the British Empire and the third Reich.
No, and that was clearly absurd and offensive insofar as they made that connection,
but I think to be fair to them, what they were saying was that atrocities should be - that war crimes or atrocities perpetrated against civilians should be - that justice should be done regardless of limit of time but again, the point made by Lawrence James was correct,
that, you know, it was very regrettable in the case of Kenya that the perpetrators of the Hola massacre and other atrocities were not prosecuted at the time but the problem is that now,
and this was a point I was trying to get to with Esther Xosei, we don't have the perpetrators in court, we are not prosecuting crimes that were committed against these unfortunate people, they are seeking civilian reparation, and the question is,
why should they seek civilian - why should they seek reparation against a government which had nothing to do with it, and if you agree that people should be able to seek civilian reparation decades on, then there's no end to it.
There are all kinds of people who have been dispossessed throughout history.
Of course you have to draw lines, Melanie, but these people are alive and I would say there is both a pragmatic and a historic justification.
The pragmatic justification is that they - if they are to take their case against anybody, we, this state, the British state now, is the closest they can get to it.
They can't go back and dig up Macmillan.
Second, there's no question this country has benefitted and continues to benefit from the extraction it took from the British Empire.
So it would be okay under these circumstances for, say, a holocaust victim to take a civil damages case against Angela Merkel, would it?
You do get reparations in Germany,
but also the recognition in Germany of their responsibility for the Holocaust is much, much more unambiguous and I think what was interesting tonight is when you hear Lawrence James who I think was the second witness, he doesn't really like this case,
When you see these cases, there is still a strong feeling of saying, it wasn't so bad after all, and that's precisely the point that Esther Stanford-Xosei was making.
The difference is that this was an aberration.
I think a lot of bad things were done under the Empire but basically bad things done under the Empire were an aberration.
I wouldn't go as far as Lawrence James went, to say this was an aberration and the Empire - nothing horrible was done under the Empire,
The Empire brought a lot of good things, colonialism brought a lot of good things, that's the great difference between the Empire and Naziism.
Nothing good happened under Naziism.
It was in essence a tyranny and therefore the country was responsible for what happened in a way that Britain is not responsible, collectively, in the same way, for what happened to these people.
It wasn't that distant in moral terms from where we are now
that is a good case and something I do take very seriously, and we do look back to the fact that people were making stirring speeches about it at the time
but that plays against Matthew's point, that colonialism, as we keep calling it, is in some way all about the extraction of wealth and exploitation.
But to come back to what Michael asked, it is a very partial view and it doesn't really answer why there was such outrage about it, if it's such an exploitative thing, why was there outrage?
So it is a good point Clifford makes and also it speaks well for the case that is being brought at the moment, it does not speak so well for broadening it out into a reckoning with everything else
I personally as an English person feel ashamed about the way the British behaved in these circumstances in Africa at that time.
And I would feel better if the people who had suffered that injustice were compensated and if it's an emotional thing to do with blame and guilt, if you like, me I personally feel dishonoured by what was done in my name
Let's not forget, there has been a revisionist itself to say, let's rebalance this, actually the Empire wasn't so bad,
so this is a live debate, and I think that goes to the point that actually this is why these cases are significant, and they should be tried,
There are problems in the education system, problems of underperformance, problems in the employment market and the idea that having some sort of moment which would really be about disinterring the past is going to be remotely helpful is, I think, beyond credibility
Don't you think there's a streak that says, it was a pretty balanced account, there's nothing wrong with colonialism.
I don't think people do think that.
For decades, our children have been taught nothing other than the Empire was uniquely dreadful.
I didn't learn that in school, 40 years ago.
Maybe there should be a window of apology and getting back to common sense.
I was told it was generally speaking a good thing.
Under the national curriculum, we were told the Empire was bad.
so the moment has passed.
Neil Ferguson is saying it is great today,
Britain was asked for help
They should have taken responsibilty
Some things are more important
They set a bad example
The empire was bad.
The duty of an army is to protect the people
They knowingly stole resources from other people
Countires should be held responsible for their past actions