Settle, deny, seal: Britain’s formula for colonial torture, from Kenya to Cyprus — 1

Thomas Karat, behavioral analyst 

In January 2019 the British government announced that it would pay one million pounds to thirty-three Cypriots who said they had been tortured in British custody during the uprising of 1955 to 1959. The statement that accompanied the money contained a sentence that readers in Nairobi would have recognised. The settlement, London said, did not constitute any admission of liability and set no precedent for any future claim against the government. Five and a half years earlier, announcing compensation for Kenyans tortured during the Mau Mau Emergency, the same government had kept its denial of liability intact and declared that the payment set no precedent for any other former colony. Two territories, two populations of torture survivors, and one formula, carried from one continent to another with its wording barely altered. A sentence that travels like that belongs to a method. The method has a history that runs from colonial bonfires in the 1950s through statutes still in force today, and it ends, for the moment, at a British air base on Cyprus that is still in operation.

The Cyprus Emergency began in 1955, when EOKA, a Greek Cypriot organisation seeking union with Greece, opened an armed campaign against British rule, a campaign London classified as terrorism. The violence ran in more than one direction. According to figures published by a Turkish Cypriot outlet, EOKA killed 371 British servicemen between 1955 and 1959, and its victims included Turkish Cypriots, the first of them a police sergeant, Abdullah Alparslan, killed in Paphos in 1956. None of this alters the legal position of a prisoner. The prohibition on torturing people in custody protects every detainee regardless of the cause he served, and it was the treatment of detainees that the British administration worked hardest to keep from view. Allegations of abuse circulated widely at the time, and the colonial authorities dismissed them as EOKA propaganda. No British soldier or policeman was prosecuted for torture during the uprising, although two officers of the Gordon Highlanders were court-martialled and convicted of causing actual bodily harm. The EOKA veterans’ association says that fourteen Greek Cypriots died under British interrogation, two of them aged seventeen. In 2022 new evidence on those deaths was published, drawing on testimony from British veterans and Cypriot fighters, post-mortem and morgue records, and photographs from the Cyprus State Archives that appear to show mutilation of the genitals; it was the first time British forces, intelligence services included, had been accused of a campaign of extrajudicial killing during the uprising. Among the thirty-three claimants who settled in 2019 was a woman who said that, at sixteen, she had been repeatedly raped by soldiers.

For half a century the documents that could have tested those accounts were officially said not to exist. They surfaced because of a lawsuit on another continent. In the course of the Kenyan litigation the Foreign Office conceded that it held thousands of files from former colonial administrations, around 9,000 from thirty-seven of them by one early count, long thought to have been destroyed. Among them were Cyprus papers in which British police and military officers themselves described the brutal treatment of suspected EOKA fighters and of civilians. Foreign Office documents released in July 2012 set out claims of torture and abuse from the Emergency years, and in July 2015 thirty-five Cypriots filed suit. Reporting on the newly available material, the Cyprus Mail found that the top-secret files showed suspected EOKA fighters and ordinary civilians alike had been brutally tortured in the course of the Emergency. Their lawyer had to persuade the government to let him see classified material, which meant repeated visits to Hanslope Park, the secretive Foreign Office site in Buckinghamshire where the colonial archive had been held. A Labour member of parliament of Cypriot descent observed that, in a matter where torture was certainly involved, the government would rather the case never saw the light of day. When the settlement came, the minister for Europe described the period before independence as a matter of regret, and pointed to the passage of time as a reason the claims could no longer be fairly tried. The passage of time in question included the fifty years during which the government had kept the relevant files out of reach. Even the settlement did not close the archive. During a later visit by the claimants’ lawyer to Cyprus it was announced that thousands of further classified documents bearing on torture allegations from the Emergency were due for release, which meant that, years after London had paid to end the case, part of the record it concerned had still not been opened. The pace at which that material reaches the public is still set by the department that withheld it in the first place.

The disappearance of those files had been planned with the same care as any other branch of colonial administration. From 1961 the colonial secretary, Iain Macleod, directed officers across the remaining territories to identify and remove any document that might embarrass the British government or its officials, together with anything open to reading as evidence of racial prejudice or religious bias. The criterion applied was reputational: a paper went to the fire according to the harm it could do to Britain’s name, whatever its military value. Files fit to pass to an incoming government were marked legacy. Files destined for destruction or for secret shipment to London were marked watch, and the instructions required that successor governments never learn such files had existed, so that where one was withdrawn from a series a dummy file took its place. The work was reserved for officers who were British subjects of European descent. Paper was burned and the ash broken up, or packed into weighted crates and sunk in deep water far from the coast. In Belize the files went up with help from the Royal Navy and several gallons of petrol. In British Guiana two secretaries fed papers into an oil drum on the grounds of Government House until the army lent a hand. In Aden a committee of three began burning in 1966, a full year before the British withdrew. In Malaya five lorry loads were driven to the naval base in a single purge, a destruction so conspicuous that officers in Kenya were later warned against repeating it. Each completed destruction produced a signed certificate for London. The programme was called Operation Legacy.

Kenya was where the concealment finally broke. Three elderly survivors of the detention camps of the Mau Mau Emergency, who had been beaten and sexually mutilated in British custody, sued the Foreign Office. One of them described in his witness statement a period before independence in which men were castrated and women raped. The department fought the claim for three years, arguing first that liability for colonial conduct had passed to the independent Kenyan state in 1963, a position the High Court rejected. It was during that litigation, more than a decade after the case began, that the hidden archive came to light. Historians who had argued for years that the records had been removed and concealed were vindicated, after a long period in which the government had been content to let them appear mistaken rather than acknowledge what it held. The files became catalogue series FCO 141 at the National Archives, some twenty thousand files from around forty former territories. On 6 June 2013 the foreign secretary told the House of Commons that the government would pay £19.9 million) to 5,228 claimants and that it sincerely regretted the abuses, in a statement that preserved the denial of liability and the refusal of precedent that Cyprus would hear in 2019.

The formula performs a precise legal function. A payment made without admission of liability produces no finding against the state, and no court ever pronounces on what the files show. A payment declared to set no precedent obliges every other group of victims, in every other former territory, to begin from nothing, against a defendant that holds the documents and controls the pace at which they emerge. The Cypriot claimants learned from the Kenyan case that settlement was possible, and their lawyer said publicly that the government’s resistance in Cyprus had been ill advised because the Mau Mau case had already shown where such litigation led. The government nonetheless repeated the full sequence, resisting the claims, contesting access to the files and finally settling without admission. Kenya also received a memorial in Nairobi, unveiled as a symbol of reconciliation, while no comparable memorial has been offered to Cyprus. Each case is handled as an exception, which is the outcome the formula is designed to secure.

An incomplete record does not leave a neutral space behind it. It leaves room for partisan shorthand, and the shorthand settles on whichever community has the least access to the documents. When the BBC reported the 2019 settlement, its story described Turkish Cypriots as thugs, wording the broadcaster later apologised for and removed. The Emergency years shaped relations between the island’s communities, and a full account of them, drawn from the files rather than from competing memories, serves Turkish Cypriots and Greek Cypriots alike. The party that has kept that account incomplete is the former colonial power, whose officers wrote the reports and whose ministries still decide which of them may be read.

The fire was the crude instrument. The durable one is statutory and still operates. The Public Records Act provides that records selected for permanent preservation pass into public view within twenty years, a period reduced from thirty in 2010. The same section allows a department to keep records back if they are required for administrative purposes or ought to be retained for any other special reason, and in its broadest application it permits a blanket retention covering an entire class of files, reviewed once every ten years. In 2013 the Foreign Office was found to be holding a further body of material it called its special collections, estimated at the time at 1.2 million files and occupying roughly fifteen miles of shelving, held for years in breach of the Act. The justice secretary responded by signing a blanket authorisation that converted the breach into lawful retention, and a group of historians considered a legal challenge under both the Public Records Act and the Freedom of Information Act. The colonial files of Hong Kong remain closed under an order set to run until 2047. In 2015 the power to approve retention moved from the Lord Chancellor to a Secretary of State, and the authorising document was renamed from a Lord Chancellor’s Instrument to a plain Retention Instrument. The Lord Chancellor’s role had carried a measure of independent oversight of the public records system, and the change moved the decision closer to the departments that hold the records and have reasons of their own to keep them closed. Between 2017 and 2019 the British army’s headquarters in Kenya destroyed most of its physical files created before 2015, years after ministers had expressed regret in Parliament for precisely this kind of loss.

Destruction and retention govern what reaches the record. A third instrument governs what reaches the courtroom. English law has held since Lord Hewart’s judgment of 1924 that justice must manifestly be seen to be done, and the principle has long been treated as part of the rule of law itself. The Justice and Security Act of 2013 introduced closed material procedures into ordinary civil litigation for the first time. Where the government is sued over the conduct of its own agencies, it may now rely on evidence that the claimant and the claimant’s own lawyer never see. A security-cleared special advocate reads the material in their place and is then barred from discussing it with the person whose interests he represents. Special advocates themselves told Parliament the procedures were inherently unfair and contrary to the common-law tradition. The Law Society warned that the Act damaged the equality of arms on which a fair trial depends. A recently retired Law Lord described the legislation as so radical a departure from open justice that every available safeguard should be built in against its use, and the government’s own equality and human-rights watchdog judged the Bill incompatible with European human-rights requirements. Parliament passed the Act regardless of these objections. In 2014 prosecutors applied to hold an entire terrorism trial in secret, with the defendants kept anonymous. The Court of Appeal refused a complete blackout, holding that criminal trials must be public and defendants named, and recorded its grave concern at what had been attempted. The core of the trial still proceeded in private, with a small group of journalists admitted on terms that kept almost everything they heard out of print and their notebooks in the court’s custody.

The two efforts were assembled side by side. The Justice and Security Act received royal assent on 25 April 2013. Six weeks later, on 6 June, the same government expressed in the Commons its regret for colonial torture whose evidence it had withheld for fifty years and surrendered only under compulsion of a court. An apology for an old concealment and the legal machinery for future concealment came from one administration within a single parliamentary season. Six years after that, the Cyprus settlement repeated the words of the apology while the machinery remained in place.

The motive is legible in the record itself. A state that presents itself abroad as a custodian of the rule of law, and that sits as one of the guarantors of an independent Cyprus, draws much of its standing from the claim that its own conduct can withstand scrutiny. Documented torture, examined in open court, falsifies that claim and attaches names to it. The instruments differ in where they intervene, and they protect the same asset. Destruction prevents evidence from ever reaching a court. Retention keeps surviving files from historians for decades at a time, and closed procedures keep evidence from the public even after it reaches a judge. The Court of Appeal named the stakes in its 2014 judgment, describing open justice as a hallmark of the rule of law, a guarantee that the conduct of the state in its own courts can be watched by the people in whose name it acts. Each instrument described here is a way of declining that watch. Sustained over half a century, the expense involved gives some measure of the value placed on that asset. A government does not maintain a secret archive for fifty years, legalise its retention when exposed and redesign its own civil procedure in order to protect material it regards as harmless.

On Cyprus the British state retains more than archives. Under the 1960 Treaty of Establishment the island became independent with the exception of two areas at Akrotiri and at Dhekelia, which remained under British sovereignty, and under the accompanying Treaty of Guarantee, Türkiye and Greece, together with the United Kingdom, undertook to guarantee the independence of the Republic together with its territorial integrity and its security. From Akrotiri, beginning in December 2023, Royal Air Force Shadow R1 surveillance aircraft flew hundreds of missions over and around Gaza, at least 518 according to an investigation by Action on Armed Violence for Declassified UK, a figure the charity later put at 606. The Ministry of Defence has said the flights served only to help locate hostages, and has refused to say whether it shared live surveillance footage with Israel. It has confirmed, in answer to a freedom-of-information request, that it holds video of Gaza from a flight on 1 April 2024, the day Israeli strikes killed seven international aid workers, three of them British military veterans, and it has declined to release that footage on national-security grounds.

The island on which British officers once kept colonial files out of reach now hosts a British base whose record of a present war is withheld on familiar grounds. The reflex traced here through Kenya and Cyprus belongs to no single state. The second part of this series follows it to Israel, whose conduct in Gaza and the West Bank has been recorded on a scale no archive was built to contain, much of it by Israeli soldiers themselves, and whose authorities have since worked to remove that record from the platforms where it first appeared. Britain’s method assumed that evidence could be held in one place and managed over decades. What becomes of that method when the evidence exists everywhere at once is the question the second part examines.