INTRODUCTION
Over three hundred years, the British Empire colonized over half of the world’s population during 16th to early 19th century. However, when comes to the topic of colonial crimes or compensating the inhabitants of the colonies or the aggrieved states, the British has reluctant in the matter. Though there was the apologetic moment, the sufficiency of the issue is a far cry. Though addressing the aforesaid issue is like finding a needle in a haystack, this blog has briefly focused on whether the international law can prosecute the colonial crimes and how reparations can be addressed under the existing international law.
COLONIAL CRIMES
British East-India Company by forced occupied the places (especially in Kolkata) of India in 1757.[1] The British orchestrated the “artificial famine” in 1770 which killed one-third of the total native population in the Indian Subcontinent.[2] Winston Churchill diverted food from West Bengal for the British soldier which killed 3Million people in West Bengal. The Jallianwala Bagh massacre is the prime example of British autocracy and atrocities in the Indian Subcontinent during the British Regime. The East-India Company for its gain pillaged the Indian subcontinent. In Kenya, during the 1950s, the Mau Mau Rebellion was on the crimes against humanity which is concisely illustrated in ‘Britain’s Gulag: The Brutal End of Empire in Kenya’ by Professor Caroline Elkins. In Nigeria, a vast brass and bronze castings and ivory carvings from the Palace of the Oba of Benin in 1897. The Boer war in South Africa showed the cruelty of British Barbarism. The list of the colonial crimes, a list which itself would make research since the British Empire is one of the longest and largest Empire in the History of mankind.[3]
TRANSITIONAL JUSTICE
The notion of transitional justice goes beyond conventional legalistic frameworks and retributive justice approaches and engages with political, cultural, and social processes of repair.[4] There has been a lot of progress that’s been made in this arena, both as a field of practice and as a field of academic research.[5] It has pushed the boundaries beyond its focus on the conventional comfort zone of civil and political rights in post-autocratic states.[6] Take, for example, the work being done on transitional justice and economic policy by the World Bank Institute, or the work on transitional justice in rural communities by Yale University Press. Regarding the issue of Colonial Crime, Transitional justice is necessary since the colonial rule has a much more psychological effect on the colonized people, and yet to this day, the psychology of the inhabitants has been tempered due to the British regime. Frantz Fanon has mentioned postcolonialism in ‘Black Skin, White Masks’. “The oppressed want at any cost to resemble the oppressors.” Though the state was liberated from colonial oppression, the mind of the citizens did not. Additionally, as aforesaid, several historic monuments, and artifacts are looted and stolen during the British regime, which needs to be returned to be a place of origin.
JUDICIAL DECISIONS
The Rawagede Case shed a ray of light concerning the issue of addressing colonial crimes.[7] During the Dutch regime in Indonesia, in Rawagede, many people (around 400) died due to the massacre in 1947. The survivors and family descendants brought the claim before the Hague District Court. Upon going through the evidence, the Court held that the Dutch state is liable for the Rawagede Massacre in Indonesia and the state agreed to pay €20,000 each to the relatives. This landmark case addressed colonial crime.[8]
In the Katanga case, Katanga was convicted for committing crimes against humanity in in the Democratic Republic of Congo. The Chamber ordered both separate monetary reparations of US$250 per victim and joint reparations for “support for housing, support for income-generating activities, education aid and psychological support”. In the Al Mahdi case, as a co-perpetrator of the war crime and attacking cultural and religious property in Mali, the defendant was prosecuted. The reparation was for €2.7 million for both individual and collective reparations. Regarding reparations, Article 75 of the Rome Statute guides ICJ and ICC to determine reparations, “including restitution, compensation, and rehabilitation”. Article 75 empowers the Court to compensate the aggrieved person through the Victims Trust Fund, created in Article 79 of the Statute and the funding comes from the fine of the convicted person. Rule 97(1) of ICC mentions, “award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both”. Furthermore, Mau Mau case is another example of establishing transitional justice against colonial crimes. The British government “systematic” abuse and torture of Kenyan people which included “use of castration, systematic beatings, rape and sexual assault with bottles”. The British government later agreed to pay over 5000 claimants who were aggrieved during the Mau Mau Rebellion the sum of £19.9 million in compensation.[9]
CONCLUSION
Seeking transitional justice for a colonial crime can be considered a mammoth task. The British, German, and French colonialization of Asia and Africa and crimes against humanity during the colonization are termed a dark and forgotten past by the Western Nations and the states are reluctant to address or have a proper justice for the aggrieved inhabitants of the colonized states. Even injustice, the German Court avoids the term “reparations” or “compensation” fearing that will set precedents for future litigations under international law. However, aforesaid cases are important steps in the direction wherein future it might be possible to have a transitional justice under internal law for the colonial crimes.
Author’s Name: Zahirul Bashar, Research Associate, MCLaw Services Ltd., Dhaka, Bangladesh
[1] Karolina Hutková , The English East India Company’s Silk Enterprise in Bengal, 1750-1850 (1st edn, Boydell Press 2019).
[2] McLane JR, “The Famine of 1770,” Land and Local Kingship in Eighteenth-Century Bengal (Cambridge University Press 1993).
[3] Tusan, Michelle. ““Crimes against Humanity”: Human Rights, the British Empire, and the Origins of the Response to the Armenian Genocide.” The American Historical Review 119, no. 1 (2014): 47-77.
[4] Lydia K. Bosire, “Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa”, in Sur – Revista Internacional de Direitos Humanos, 2006, vol. 3, no. 5.
[5] Olsen, Tricia, Leigh Payne, and Andrew Reiter. “Transitional justice in balance.” Comparing Processes, Weighing Efficacy (2010).
[6] Jones, Briony. “The performance and persistence of transitional justice and its ways of knowing atrocity.” Cooperation and conflict 56, no. 2 (2021): 163-180.
[7] Rechtbank ‘s-Gravenhage (Court of First Instance), Stichting Komite Utang Kehormatan Belanda v. Netherlands, trial judgment, LJN: BS8793, 14 September 2011.
[8] Regina Menachery Paulose, and Ronald Gordon Rogo. “Addressing Colonial Crimes Through Reparations: The Mau Mau, Herero and Nama.” State Crime Journal 7, no. 2 (2018): 369–88. https://doi.org/10.13169/statecrime.7.2.0369.
[9] Ndiki Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara and Susan Ngondi v. The Foreign and Commonwealth Office (2012) HQ09X02666 ICJ. Available at: https://www.internationalcrimesdatabase.org/Case/214/Mutua-et-al-v-UK/. See also, D.M. Anderson, ‘Mau Mau in the High Court and the ‘Lost’ British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?’, The Journal of Imperial and Commonwealth History, 2011, Vol. 39, No. 5, pp. 699–716.
