Renewing the debate under whose jurisdiction?

A BOOK, three Kenyan elders and a British judge are making history. That is the best way to view the ruling by a London high court last Friday rejecting a plea from the British government not to consider a case launched by three Kenyans against British colonial authorities for subjecting them to torture and mistreatment during the Mau Mau national revolt against the British.
The whole dilemma began with a 2005 book, a 496-page documentation by Caroline Elkins entitled "Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya", which through compelling historical data revealed the violence committed by colonial British authorities against the nationalists.
The content of the book motivated a number of human rights organizations to take their case further and battle London on legal grounds. Five of the victims agreed to participate, though in the end only three survived to see the Friday verdict with one dying and the fifth dropping out of the case. The judge initially refused to acknowledge that British power in Kenya was inherited by the Kenyan government following their independence back in 1963, then went on to dismiss the contention that too much time had passed to allow for a fair trial.
However, given the fact that anywhere between 5,000 to 70,000 Kenyans subjected to those colonial malpractices are still alive, London is bracing for a barrage of cases. Furthermore, the ruling has set a precedent that paves the way for inhabitants of other colonies around the world to sue Her Majesty’s government as well.
Such a development has far-reaching implications, not only for Britain, but for a number of issues related to international law, relations between states and the growing role of NGOs and humanitarian organizations in shaping policies in today’s world.
During the 1990s, the concept of humanitarian intervention began to gain ground both politically and legally. The principle of state sovereignty would no longer be taken for granted. Proof of such a development was expressed through cases such as that of Bosnia and the emergency of the International Criminal Court (ICC). But the ICC clearly showed the gap between an ideal world and reality, especially when the UN Security Council decided to refer the Darfur case to it. Three of the permanent members of the UNSC, namely the United States, Russia and China don’t even recognize the ICC. Indeed, the US went one step further by signing treaties with other countries to exempt its citizens from prosecution by the ICC or any other court. That brought to mind former British Foreign Secretary Robin Cook's alleged statement that the ICC was not set up to try a British prime minister.
That brings to the fore the ongoing debate on the relationship between the two conflicting concepts of preserving the nation state as a basis for dealing with the world stage or to go for humanitarian intervention even if it amounts to regime change one way or another. The case of Syria and the reaction of the world community puts that debate in focus.
Ruling on the British case against British colonization sharpens that debate, on the one hand, and paves the way for redressing that concept by showcasing that even big powers can be sued for their malpractice on the other.
Nevertheless, if that is becoming acceptable as far as history is concerned, there should be more emphasis on current practices, be it within national governments against their own citizens or Western powers taking international law into their own hands as exemplified when the Bush administration decided to invade Iraq back in 2003 with the help of Britain’s Prime Minister Tony Blair.
In reality, international law is a reflection of balance of power. Unless developing countries became able to demonstrate more power and respect for their people in real terms, they should not expect that others will show them due respect. It was interesting to note that some of the information available from the Kenyan revolution against British colonialism indicated that some 90,000 Kenyans were subjected to torture, detention or execution. One such example was Hussein Onyango Obama, the grandfather of current US President Barack Hussein Obama.

— This article is exclusive to Arab News.
E-mail: asidahmed@hotmail.com