Should Britain be charged with war crimes?

THE PROSECUTION of those accused of war crimes under the Nazis, or more recently in the "ethnic cleansing" of Serbia and Kosovo, has become a moral crusade of our times. Human rights of war-crime victims are reinforced by international law and sustained with the support of Western governments, including our own. The prevailing view is that justice should be brought to bear, and retribution delivered, upon those who have offended the moral codes, even in war.

But this moral high ground can be treacherous terrain, especially for a country with its own murky colonial past. We in Britain should tread warily.

A movement is gaining pace in Kenya to bring charges against the British Government for atrocities committed during the Mau Mau rebellion of the Fifties. Encouraged by news of war crimes cases in Europe and - nearer to home - the successful prosecution of some of those responsible for genocidal killings in Rwanda, Kenya's "Real Mau Mau Freedom Fighters" now hope to mount a case that will expose the human rights abuses of the British between 1952 and 1958. The evidence that I have been studying in Kenya and London for the last year suggests that they have a case.

The Mau Mau emergency is best remembered in Britain for the savage attacks on European settlers. Machete-wielding Mau Mau gangs slashed their victims to death, leaving mutilated corpses where they would serve as a warning to others. But despite the British perception of Mau Mau as a war against Europeans, only 32 white civilians were in fact killed in these attacks. The greater violence was directed against fellow-Africans.

To combat the Kikuyu Mau Mau gangs, Britain mobilised "Loyalists" from within the Kikuyu community, creating a Home Guard some 25,000 strong at its peak and stimulating a civil war of a kind that gave rise to the most vicious acts of terror and counter-terror.

The campaign against Mau Mau was the dirtiest of Britain's wars of decolonisation, and there is much historical evidence that might be used to support claims of human rights abuses. Accusations of excesses and atrocities were made at the time and some of them publicised by British MPs, including Barbara Castle, Fenner Brockway and Tom Driberg. There were many reported instances of beatings, cruelty and torture, but they were generally attributed to individual officers having "over-stepped the mark". However, research into the colonial archives is now revealing a darker and more systematic story of state complicity.

The most damning evidence comes, ironically enough, from the court records of the prosecutions of Mau Mau fighters. Emergency regulations enforced early in 1953 brought an extension of the range of capital offences. It became a capital offence to administer or freely participate in taking a Mau Mau oath; to be known to be a member of Mau Mau gang; to be in possession of explosives, arms or ammunition; or to consort with people carrying arms or ammunition.

At the same time, new courts were set up to hear Mau Mau cases. The Special Emergency Assize Courts tried nearly 3,000 Kenyan Africans accused of capital crimes. The courts were presided over by a single judge who sat without the benefit of a jury. Most of the judges were not members of the High Court at all, but were acting judges who had been raised from the ranks of the magistracy. Between early 1953 and the end of 1956, these hanging judges sent 1,083 men to the gallows - and this at a time when the British public was contemplating abolishing the death sentence.

The case papers of some 900 of these capital trials offer little to inspire confidence in British justice. The rules governing the courts were designed to speed up the prosecution of cases, but this seriously diminished the rights of the accused. Committal proceedings were done away with, removing any opportunity to evaluate the prosecution's case and arrange witnesses for the defence. Defence counsel could seldom be appointed in advance, never mind briefed. Not surprisingly, witnesses for the defence only rarely made an appearance in these trials.

These were also among the last mass trials to take place anywhere under British jurisdiction. In the largest cases, groups of 50 or more accused sat in the dock together, holding up numbered boards to identify one from another. In these circumstances, it was not surprising that judges lost track of the actions of an individual as the evidence unfolded.

Worse still, the courts allowed the submission of extrajudicial statements by the accused as evidence for the prosecution. This meant that statements made during interrogation by a member of the district administration or by a European police officer, often before formal charges had been laid, could be used in court. Before the court, the accused invariably asserted that the extrajudicial statement had been made under duress. Many accused bore the physical scars of beatings and torture, but the court seldom accepted that such abuse was related to the statement of guilt. Despite the judgment of the court, the burden of evidence makes it difficult to escape the conclusion that intimidation was widely used to extract confessions that would secure conviction, and it is also difficult to believe that judges would have been unaware of the methods being used. These were political trials in all but name.

To illustrate the character of this evidence, let me refer to only one case, though admittedly an unusually revealing one: that of the prosecution of Kikuyu Loyalist Home Guard for the murder of two Mau Mau suspects at Ruthagathi in Nyeri District during 1954. The judge in this case found there to have been systematic use of torture by Home Guard under the charge of European officers, the running of what he termed a "protection racket" of extortion by Home Guard commanders against local Mau Mau sympathisers, illegal detention and interrogation of innocent people by the security forces, forging of the government record by European officers and an African chief in an effort to cover up what had happened, and perjury before the court of several members of the security forces, including European officers.

Despite all of this, the Foreign Office may not be too troubled by the Kenyan campaigners. Three amnesties were issued during the emergency period, two of which were intended to exonerate the security forces, to prevent further prosecutions arising against them. At the time this was sufficient to prevent cases coming before local courts, but we may wonder whether the same can be achieved now. Would a Nazi amnesty in the early months of 1945 have prevented Nuremberg?

It is more significant that the Kenyan government is extremely unlikely to support the efforts to bring a case before the British or international courts. Memories of Mau Mau divide Kenyans among themselves, presenting a minefield that few Kenyan politicians would willingly enter.

Those Kenyans who suffered in the Fifties were not all victims of colonial oppression; many were victims of brutalities committed by the supporters of Mau Mau. Among the Loyalists who sided with the colonial regime - even if they did so reluctantly - there is little sympathy for the idea that Mau Mau fighters should be compensated. Gachere Wakahangare, who was herself maimed in a Mau Mau attack on her Loyalist family, still grieves for the two children she saw butchered before her eyes. The very thought of compensation for the Mau Mau fighters only rubs salt in her wounds: "Who will compensate us?" she asked, when I spoke with her earlier this year. "They killed our children. Why? Did we not suffer?"

For the majority of Kenyans, it is reconciliation, not retribution, that will best heal the wounds of the Fifties. The British Government may yet be grateful for that.

The writer teaches history at the School of Oriental & African Studies, University of London