The Legal 500

In 1948, Scots Guardsmen shot dead 24 unarmed Chinese labourers in the rubber tapping village of Batang Kali, part of what was then colonial Malaya.

Their village then was razed to the ground. Their dependents were left destitute. Then, in 1970, several of the Guardsmen involved came forward and, in the presence of their solicitors, openly confessed to the Metropolitan Police that they were ordered to execute the villagers extra-judicially, that the male villagers were divided into groups to be shot, and that they were later coached to say that this had happened during a mass escape attempt. A detailed chronology of the events surrounding the killings and their investigation can be found here.

These events have been the subject of two police investigations, both of which were terminated against the wishes of the police officers involved, investigations by print journalists, a BBC documentary and a recently published book, Slaughter and Deception at Batang Kali.

Against this backdrop, the victims’ families have been calling for an acknowledgement of wrongdoing and an independent inquiry or investigation into why it occurred.

Yet far from taking responsibility for this most shameful episode in British military history, the Coalition’s Secretaries of State for Defence and Foreign and Commonwealth Affairs have told the families that they are simply unwilling to do anything so that the truth of what happened can be made public. No apology has been offered. Responsibility has been evaded on the basis of hollow and technical arguments that the British Army was somehow under the command and control of the Sultan of Selangor at the time of the massacre. The Secretaries of State have not even bothered to take advice on whether the killings were legal.

On 8 and 9 May 2012 the victims’ families asked the High Court to overturn the refusal to investigate. The written submissions prepared by the families’ lawyers – Michael Fordham QC, Danny Freidman, Professor Zachary Douglas and Bindmans’ John Halford are here. In summary they argue:

• the Secretaries of State ought to have accepted that the official account given the UK Parliament – that these were necessary and justified killings -  is simply unsustainable;
•  even on the official account, these would have been unlawful killings, something that has never been acknowledged;
• the so-called ‘investigation’ in 1948 and public announcements served to cover up an incident which was known to be deeply troubling;
• the 1970 and 1994 investigations were terminated in circumstances of interference;
• there has been no independent recognition, appraisal, evaluation or determination of the truth;
• the problem will not go away, nor should it, especially given the egregious nature of the original conduct and the degree to which procedural steps to investigate it have been improperly frustrated thereby compounding the original wrong;
• in reality, there is no particular difficulty in inquring and reaching conclusions on what occurred despite the passage of time: the material has now been comprehensively collected for the first time; there are acts that can now be undertaken for the first time – such as disinterment and forensic testing – that have been recommended since 1970; there are a range of models available under which an investigation can take place; costs are also overstated and should not be prohibitive; and there certainly are lessons to be learned;
• the benefits of inquiring, by contrast, have manifestly been understated. The capacity for restorative justice in giving the matter proper consideration is overwhelming and there is benefit (as well as obligation) in having due regard to race relations in the race context of this case – the families were never interviewed about what they saw in 1948 or 1970 because of assumptions about their untrustworthiness; and
• the decision not to hold a further inquiry or investigation cannot satisfy the basic standards of reasonableness and justification, nor those imposed by customary international law and the European Convention on Human Rights.

The Court’s decision is awaited. Meanwhile, the case has attracted press attention worldwide:

Malayan 'massacre' families seek UK inquiry (BBC News, 7 May 2012)

Batang Kali massacre hearing due to start at high court (The Guardian, 7 May 2012)

Batang Kali incident judicial review starts (New Straits Times, 7 May 2012)

Secret law to ‘protect’ Scots Guards killers in Malaysia uncovered (Scotsman, 7 May 2012)

Britain 'covered up massacre of Malaysians', court to hear (The Telegraph, 8 May 2012)

Btg Kali massacre: Edging closer to the truth (Free Malaysia Today, 8 May 2012)

Batang Kali Massacre: Family members just want to know the truth (The Malaysian Insider, 9 May 2012)

Malaysians launch appeal over a wartime massacre (The Sydney Morning Herald, 10 May 2012)

Batang Kali Massacre: A lesson in truth? (The Malaysian Insider, 10 May 2012)

For more information please visit www.bindmans.com