A very successful action? Historical wrongs at common law

Abstract: This paper examines the first major case on historical wrongs to come before the UK Supreme Court: Keyu v Foreign Secretary (2015). The case concerned an alleged massacre involving British soldiers during the Malayan Emergency in 1948 and the failure to investigate the incident by British authorities both at the time and later. As such, it feeds into the wider discourse on the former colonial state’s responsibility for covering up historical wrongs. Brought by relatives of the victims, the case required the Court to consider the question of jurisdiction for extraterritorial wrongs by a former colonial power, and to work out whether the state today had legal responsibility for the actions in question under either the European Convention on Human Rights or customary international law or the common law of judicial review. Although the claimants lost the case, the paper argues that the Supreme Court nonetheless ensured that they did ‘win’ a full public statement, on the record, of the killings and of subsequent cover-ups which pulled few punches when criticizing government and colonial authorities.