Batang Kali massacre: families hopeful of supreme court appeal

Relatives of the 24 Malaysian workers killed by Scots Guards in 1948 intend to persuade court to overturn earlier ruling

“Once we commit our armed forces to combat,” the defence secretary told parliament on Monday, “they must be able to carry out operations without fear of constant review in the civil courts. If we find that the current cases develop in a way that makes that difficult, we will come back to the House [of Commons] with proposals to remedy the situation.”

When he said that, Philip Hammond might well have had an inkling of the ruling that the court of appeal was to deliver two days later. It was about a notorious incident that had happened 65 years ago in Malaysia, which was then under British protection. Scots Guards, who had been called in to protect civilian installations against communist insurgents, killed 24 civilian workers at the Batang Kali rubber plantation.

Did the troops believe they were shooting insurgents to stop them escaping? Or did they massacre unarmed civilians in cold blood? Relatives and supporters of those who died asked the defence secretary and the foreign secretary to order a new inquiry into what had happened on the UK’s watch. Their request was turned down by the government in 2010 and again in 2011.

Challenges to those decisions were dismissed by the high court in 2012 and by the court of appeal on Wednesday. Why, then, do the relatives’ lawyers regard this week’s ruling as a turning-point?

We must look first at a decision last October by the European court of human rights in a cased called Janowiec. The court’s grand chamber dismissed a claim against Russia relating to the massacre of thousands of Polish prisoners by the Russian authorities in 1940, at locations including the Katyn Forest. According to the human rights court, Russia was under no obligation to investigate a massacre that had taken place 58 years before Russia had ratified the human rights convention.

Crucially, though, the court said that states might be required to investigate breaches of human rights that occurred a “reasonably short” time — and certainly not more than 10 years — before they joined the convention. For this rule to apply, a major part of the investigation ought to have been carried out after the entry into force of the convention.

In this case, the UK ratified the human rights convention less than five years after the killings at Bantang Kali.

Investigations were not pursued. So it was “probable”, said the court of appeal, that the human rights court would find that the test was satisfied.

Despite that, the court of appeal did not allow the families’ challenge. That was because of decisions by the supreme court to the effect that the Human Rights Act 1998 does not operate retrospectively. Those judgments were delivered before the Strasbourg court ruled in the Janowiec case but they were still regarded as binding by Lords Justices Maurice Kay, Rimer and Fulford.

We can now see why the families’ lawyers were so …read more    

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