Introduction: Torture, Empire, and the Exception
The colonial regime owes its legitimacy to force and at no time tries to hide this aspect of things.1
In 2011 the High Court of England and Wales heard a historic case that exposed facets of the brutal violence that sustained Britain’s empire. The issue at stake was whether five poor and elderly Kenyans,2 who had been subjected to ‘physical mistreatment of the most serious kind, including torture, rape, castration and severe beatings’ by British colonial officials during what was known as the 1952–1960 Kenyan Emergency had, as the Hon. Mr. Justice McCombe remarked in his judgment summary, ‘a viable claim in law’ for their case to be heard in Britain.3 The question before the court was not, therefore, whether the allegations of the claimants were true (though McCombe noted that ‘no doubt has been cast upon them by the evidence before the court’), or whether the British government was liable for the injuries they had suffered, but whether they could, after a lapse of over half a century, be tried in Britain.4 For the defendants, the Foreign and Commonwealth Office (FCO), the answer to this question was a resounding ‘no’; the colonial government in Kenya had been ‘separate and distinct from that of the UK Government’, it argued, and hence liability for colonial violence rested, following Kenya’s independence from Britain in 1963, with the Kenyan government.5 Britain, according to such logic, was not responsible for the torture and other forms of violence committed by its colonial officials on the bodies of its formerly
1 Frantz Fanon, Concerning Violence (first published in 1961, Constance Farrington tr, London: Penguin, 2008), 57 (hereafter Fanon, Concerning Violence).
2 The five complainants were Ndiku Mutwiwa Mutua, Paulo Nzili, Wambugu wa Nyingi, Susan Ngondi, and Jane Muthoni Mara. Susan Ngondi, however, died the year before the case was heard, and Ndiku Mutwiwa Mutua died in 2012, before the British government settled the case. David M. Anderson, ‘Mau Mau in the High Court and the “Lost” British Empire Archives: Colonial Conspiracy or a Bureaucratic Bungle?’, The Journal of Imperial and Commonwealth History 39/5 (2011), 700 (hereafter Anderson, ‘Mau Mau’).
3 Mutua & Ors v. The Foreign and Commonwealth Office [2011] EWHC 1913 (QB), 21 July 2011 [A1], [A2] (hereafter Matua & Ors).
4 Ibid [A1]. As United Kingdom (UK) law does not recognize torture as a specific tort (a legacy, perhaps, of its imperial past?), the action brought was, instead, regarding a claim for the tort of trespass to the person, which according to Devika Hovell ‘distract[s] from important legal implications of torture’. Devika Hovell, ‘The Gulf between Tortious and Torturous: UK Responsibility for Mistreatment of the Mau Mau in Colonial Kenya’, Journal of International Criminal Justice 11 (2013), 224 (hereafter Hovell, ‘The Gulf between Tortious and Torturous’).
5 Matua & Ors (n 3) [C11].
Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/oso/9780192893932.003.0001
colonized subjects. According to what I shall call the displacement of colonial blame thesis, it was the former colonial subjects themselves, or their descendants, who instead bore such a burden.
For the claimants, however, it was impossible for Britain to so flagrantly airbrush its responsibility for the brutal violence to which they had been subject.6 In addition to the fact that the liability of the colonial administration in Kenya devolved upon the British government in 1963, rather than the Kenyan, the British government was ‘directly liable to the claimants . . for having encouraged, procured, acquiesced in, or otherwise having been complicit in, the creation and maintenance of the “system” under which the claimants were mistreated’.7 The British government was liable, furthermore, for violating ‘a common law duty of care’ in failing to end the systematic use of torture and other forms of violence on Kenyan bodies when it had the clear capacity to do so.8 What made such a duty of care clear, for the claimants, was that in addition to their being British subjects at the time they were subjected to torture, residing in a colony created by the Crown, ‘The source of the risk of harm to [them] . . . was the Colonial Government itself’.9
McCombe agreed with them. In addition to the fact that the existence of a colonial government did not ‘preclude . . . a separate and individual role for the paramount government of the country whose colony a particular territory is’, the evidence before him suggested that Britain was as culpable as its colonial government in Kenya in the way in which the Emergency was managed.10 Indeed, McCombe argued, the idea that torture could have been so widely perpetrated as it appears to have been in colonial Kenya had the British Government genuinely wished to put a stop to it seemed highly unlikely. But even had the British government done no more than stand by and do nothing, ‘[t]he time must come when standing by and doing nothing, by those with authority and ability to stop the abuse, becomes a positive policy to continue it’.11 The judge was satisfied, therefore, that the claimants had a legitimate case that the British government owed them a duty of care.12
McCombe went as far, in fact, as to suggest that because the case involved torture, it was ‘of such a nature that judicial policy might positively demand the existence of a duty of care’ in light of ‘the revulsion with which the English law regards torture’.13 Evidence could be plucked from numerous cases to substantiate such revulsion, he argued, such as a 2005 House of Lords appeal judgment that declared the fact that English common law had abolished judicial torture at a time it was still routine in Europe a source of national pride, since in addition to being ‘dishonourable’ torture corrupted and degraded ‘the state which uses it and the legal system which accepts
6 Ibid [D27].
7 Ibid [C13].
8 Ibid. See also David Anderson, ‘British Abuse and Torture in Kenya’s Counter-insurgency, 1952-1960’ 23/4-5 (2012), 701 (hereafter Anderson, ‘British Abuse’).
9 Matua & Ors (n 3) [K156].
10 Ibid [J132].
11 Ibid [K143], [144].
12 Ibid [K138]. The law regarding the UK government’s vicarious liability for the conduct of former colonial governments is, however, still unresolved. Hovell, ‘The Gulf between Tortious and Torturous’ (n 4) 236.
13 Ibid [K153].
it’.14 McCombe thus agreed with the claimants that the United Kingdom had not just a national but an international duty to protect against torture, particularly since it was a signatory to the 1987 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, under which it was obliged to ensure legal redress to victims of torture.15 When it came to the ‘exceptional case’ before him, therefore, he regarded it as ‘dishonourable’ that a legal system that ‘will not in any circumstances admit into its proceedings evidence obtained by torture should yet refuse to entertain a claim against the Government in its own jurisdiction for that government’s allegedly negligent failure to prevent torture which it had the means to prevent’.16 In a landmark ruling—‘the first time’, as the claimant’s law firm declared, ‘the British Government had been held to account for colonial era abuses’—McCombe therefore found in favour of the claimants.17 Two years later, following an unsuccessful appeal by the FCO, the British government finally awarded an out-of-court settlement of £19.9 million.18 McCombe was right that torture had long been prohibited in British law, and that this is a source of pride in Britain as a sign of its much-vaunted ‘rule of law’ (as journalist Ian Cobain puts it, it is a common perception that ‘the British avoid torture, if only because it is British so to do’).19 Such pride became, in fact, a chief justification for Britain’s ‘civilizing mission’ in colonies from Kiribati to Kenya (one of what Caroline
14 A v Secretary of State for the Home Department (No.2) [2005] UKHL 71 [82], cited in Matua & Ors (n 3) [K153].
15 Matua & Ors (n 3) [K156]. That McCombe chose the 1987 Convention Against Torture to cite rather than the 1953 European Convention on Human Rights (ECHR), which was in force during the emergency in Kenya, is noteworthy, since as Britain forced the inclusion of Article 15 into the convention, under which states can abrogate human rights norms in an emergency (though freedom from torture is one of the few rights that cannot be derogated under Article 15), the passage of the ECHR does not cast Britain’s human rights records in a particularly positive light. See the Council of Europe, ‘Guide on Article 15 of the European Convention of Human Rights: Derogation in Time of Emergency’ <https://www.echr.coe. int/Documents/Guide_Art_15_ENG.pdf> accessed 11 May 2020; and John Reynolds, Empire, Emergency and International Law (Cambridge: Cambridge University Press 2017), Ch. 4 (hereafter Reynolds, Empire, Emergency).
16 Matua & Ors (n 3) [K153].
17 Leigh Day, ‘Historic Claims’ <https://www.leighday.co.uk/International/Historic-claims> accessed 11 May 2020.
18 Mutua & Others v. The Foreign And Commonwealth Office [2012] EWHC 2678 (QB) 5 October 2012; and Ian Cobain, ‘Kenyan Mau Mau Promised Payout as UK Expresses Regret over Abuse’, The Guardian (London, 5 June 2013) <https://www.theguardian.com/world/2013/jun/05/kenyan-mau-mau-payout-ukregret-abuse> accessed 13 May 2020. The settlement was awarded to a total of 5,228 Kenyan torture victims, but since it included a £6 million fee for the law firm Leigh Day victims received a mere £2,658 each. Daniel Howden and Kim Sengupta, ‘59 Years Late—but Mau Mau Accept an Almost Apology’, The Independent (London, 7 June 2013) <https://www.independent.co.uk/news/world/africa/59-years-late-but-mau-mauaccept-an-almost-apology-8648742.html> accessed 13 May 2020.
19 Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello Books 2012), xii (hereafter Cobain, Cruel Britannia). See also Tobias Kelly, This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty (Philadelphia, PA: University of Pennsylvania Press 2012), 44 (hereafter Kelly, This Side of Silence). Torture was formally abolished in England in 1640 and in Scotland in 1708; it is also explicitly prohibited under the 1988 Criminal Justice Act, introduced to honour Britain’s commitments under the UN Convention Against Torture. However, the Act also provides a defence for torture if the perpetrator was given ‘lawful authority, justification or excuse’ to enact it. ‘Torture in UK Law’ (Justice.org) <https:// justice.org.uk/torture-uk-law/> accessed 11 May 2020; and Cynthia Banham, Liberal Democracies and the Torture of their Citizens (Oxford: Hart Publishing, 2017), 150 (hereafter Banham, Liberal Democracies). See also Edward Peters, Torture (Oxford: Basil Blackwell, 1985); and John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago and London: The University of Chicago Press, 1977).
Elkins refers to as the many ‘fictions of colonial benevolence’ that the British government has long ‘crafted and affirmed’).20 He did not reflect, however, or perhaps did not wish to reflect, on how it was possible that a country in which torture was regarded as dishonourable, corrupting, and degrading, and as undermining the ‘rule of law’, could nonetheless be culpable for its systematization under ‘emergency’ conditions in Kenya as part of a genocidal drive to eliminate the Kikuyu, who bore the brunt of such inhumanity.21 McCombe also did not, notably, question how ‘exceptional’ the case before him actually was, despite not only the existence of states of emergency in British colonies that coincided with that in Kenya (such as in Malaya 1948–1960 and in Cyprus in 1955–1959),22 but the revelation, during the course of the trial, of a secret FCO archive of documents detailing horrific abuses in no less than thirty-seven British colonies.23 Nor did he query the justification of such an ‘emergency’ or the legitimacy of the colonial regime that it sought to defend—of, in other words, ‘the distinctive
20 Caroline Elkins, ‘The Colonial Papers: FCO Transparency Is a Carefully Cultivated Myth’, The Guardian (London, 18 April 2012) <https://www.theguardian.com/politics/2012/apr/18/colonial-papersfco-transparency-myth> accessed 11 May 2020 (hereafter Elkins, ‘The Colonial Papers’).
21 See Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (New York: Henry Holt 2005), xiv, 48 (hereafter Elkins, Imperial Reckoning); Dominik J. Schaller, ‘Genocide and Mass Violence in the “Heart of Darkness”: Africa in the Colonial Period’, in David Bloxham and A. Dirk Moses (eds), The Oxford Handbook of Genocide Studies (New York: Oxford University Press 2010), 359; and Martin Crook, ‘The Mau Mau Genocide: A Neo-Lemkinian Analysis’, Journal of Human Rights in the Commonwealth 1/1 (2013), 18–37. Though scholars have attempted to refute claims that British colonial violence in Kenya was genocidal in intent, such attempts generally focus narrowly on military history—i.e. that the British military could have killed many more people in Kenya than it did—rather than on the many forms of structural and systemic violence to which Kenyans, particularly the Kikuyu, were subject. See Huw Bennett, Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency (Cambridge: Cambridge University Press 2012), 108 (hereafter Bennett, Fighting the Mau Mau). For debates on the genocidal nature of colonialism see Robert Gerwarth and Stephan Malinowski, ‘Hannah Arendt’s Ghosts: Reflections on the Disputable Path from Windhoek to Auschwitz’, Central European History 42/2 (2009), 279–300; and Michelle Gordon, ‘Colonial Violence and Holocaust Studies’, Holocaust Studies 21/1 (2015), 272–91.
22 For the use of torture against anti-colonial movements—which scholars, using a term that legitimates colonial violence, generally refer to as ‘counter-insurgency’ campaigns but Kim Wagner more helpfully terms ‘savage warfare’—see, for example, Elkins, Imperial Reckoning (n 21); Andrew Mumford, ‘Minimum Force Meets Brutality: Detention, Interrogation and Torture in British Counter-insurgency Campaigns’, Journal of Military Ethics 11/1 (2012), 10–25; Anderson, ‘British Abuse’ (n 8); Cobain, Cruel Britannia (n 19); and Mark Curtis, Web of Deceit: Britain’s Real Foreign Policy (London: Vintage 2003). See also Kim Wagner, ‘Savage Warfare: Violence and the Rule of Colonial Difference in Early British Counterinsurgency’, History Workshop Journal 85 (2018), 222 (hereafter Wagner, ‘Savage Warfare’).
23 For the ‘discovery’ of this archive and the revelation of its contents see Anderson, ‘Mau Mau’ (n 2); David Anderson, ‘Guilty Secrets: Deceit, Denial and the Discovery of Kenya’s “Migrated Archive” ’, History Workshop Journal 80 (2015), 142–60 (hereafter Anderson, ‘Guilty Secrets’); and Elkins, ‘The Colonial Papers’ (n 20). In addition to the fact that the FCO continues to withhold many of these ‘found’ documents from public release the hidden archive did not contain the most incriminating evidence of British brutality, which was systematically destroyed as Britain ‘withdrew’ from its colonies—either incinerated or packed in weighted crates and dumped in deep water—to ensure that post-colonial states could not access any documents that ‘might embarrass Her Majesty’s government’. In the case of Kenya this amounted to an estimated 3.5 tons of documents. Ian Cobain, ‘Kenya: UK Expresses Regret Over Abuse as Mau Mau Promised Payout’, The Guardian (London, 6 June 2013) <https://www.theguardian.com/world/2013/jun/05/kenyanmau-mau-payout-uk-regret-abuse> accessed 19 August 2020 (hereafter Cobain, ‘Kenya’); Ian Cobain, Owen Bowcott, and Richard Norton-Taylor, ‘Britain Destroyed Records of Colonial Crimes’, The Guardian (London, 18 April 2012) <https://www.theguardian.com/uk/2012/apr/18/britain-destroyed-recordscolonial-crimes> accessed 13 May 2020; and Caroline Elkins, ‘Looking Beyond Mau Mau: Archiving Violence in the Era of Decolonization’, The American Historical Review 120/3 (2015), 860 (hereafter Elkins, ‘Looking Beyond Mau Mau’).
wrongness of colonialism’—even though the torture and other forms of violence to which Kenyans had been subjected were done with the aim of preserving a system of white racial privilege.24 He did not consider, lastly, why it took over half a century for colonial torture victims to seek or receive justice,25 despite the fact that questions had been raised, and voluminous evidence presented, of British brutality during the Emergency—though this was all dismissed at the time through the use of what David Anderson terms the ‘dispositional-individual’ or ‘bad apple’ thesis, or Purnima Bose refers to as the ‘rogue-colonial individualism’ theory, through which systemic colonial violence is displaced onto select individuals as a means of distancing empires from their constitutive violence.26
The Mutua judgment was nonetheless seminal. As such it raised the hopes of thousands of others victimized by torture at the hands of British colonial regimes.27 But although the Foreign Office insisted that ‘there should be a debate about the past’ in order to learn from it, it continued to deny legal culpability for Britain’s colonial history.28 British taxpayers, according to their government, should not pay for historic crimes they had played no role in committing (despite the fact that, for victims still living with its consequences, torture cannot be quite so neatly relegated to the past).29 States such as Germany may therefore be continuing to apologize—and pay compensation for—crimes which few contemporary Germans played any role in committing, but Britain, according to such logic, was to be exempt from such a reckoning. Little
24 Vittorio Bufacchi, ‘Colonialism, Injustice, and Arbitrariness’, Journal of Social Philosophy 48/2 (2017), 97; and Chris McGreal, ‘Torture and Killing in Kenya—Britain’s Double Standards’, The Guardian (London, 8 April 2011) <https://www.theguardian.com/commentisfree/2011/apr/08/torture-killing-kenya-britainmau-mau> accessed 13 May 2020 (hereafter McGreal, ‘Torture and Killing’). For more on the establishment of such a system, in particular the expropriation of Kikuyu lands, see Elkins, Imperial Reckoning (n 21) 21–5.
25 There were innumerable hindrances that prevented victims of colonial violence from obtaining redress. In the Kenyan case part of the problem was that because association with the Mau Mau, which had advocated violent resistance against British rule, was criminalized until 2002, fear of prosecution kept victims from coming forward. Huw Bennett, ‘Kenyan Mau Mau: Official Policy Was to Cover up Brutal Mistreatment’, The Guardian (London, 5 May 2013) <https://www.theguardian.com/commentisfree/2013/ may/05/kenyan-mau-mau-cover-up-mistreatment> accessed 13 May 2020; and Anderson, ‘Guilty Secrets’ (n 23) 153.
26 Anderson, ‘British Abuse and Torture’ (n 8), 701; Purnima Bose, Organizing Empire: Individualism, Collective Agency, and India (Durham, NC: Duke University Press 2003), 2. According to Mark Doyle the ‘bad apple’ thesis served to mark out particular individuals as ‘brutal exception[s] to the general rule of “minimum force” by which most British imperial forces abided’. Mark Doyle, ‘Massacre by the Book: Amritsar and the Rules of Public-Order Policing in Britain and India’, Britain and the World 4/2 (2011), 248 (hereafter Doyle, ‘Massacre by the Book’).
27 See, for example, Owen Boycott, ‘Mau Mau Lawsuit Due to Begin at High Court’, The Guardian (London, 22 May 2016) <https://www.theguardian.com/law/2016/may/22/mau-mau-kenya-compensation-lawsuithigh-court> accessed 13 May 2020; Helena Smith, ‘Cypriot Veterans Win Right to Claim Damages Over UK Torture Claims’, The Guardian (London, 12 January 2018) <https://www.theguardian.com/world/2018/ jan/12/cypriot-veterans-win-right-to-claim-damages-over-uk-torture-claims> accessed 19 May 2020; Sophocleous & Ors v. The Secretary of State for Foreign And Commonwealth Affairs & Anor [2018] EWCA Civ 2167; and Helena Smith, ‘UK to pay £1m to Greek Cypriots Over Claims of Human Rights Abuses’, The Guardian (London, 23 January 2019) <https://www.theguardian.com/world/2019/jan/23/britain-to-paygroup-of-greek-cypriots-1m-after-claims-of-human-rights-abuse> accessed 19 May 2020.
28 HC Deb 6 June 2013, 563, col. 1693; Cobain, ‘Kenya’ (n 23).
29 Ibid col. 1692, 1695.
wonder that, though restorative justice may have swept through many parts of the world in recent decades it has largely passed Britain by.30
To be sure, the British government made some concessions. In what was a rare admission of the falsity of the ‘bad apple’ thesis it acknowledged that Kenyans had been subjected to torture by the colonial regime. But it sought to mitigate the inhumanity to which Kenyans had been subject through marshalling a version of the displacement of colonial blame thesis, according to which, as Foreign Secretary William Hague put it, ‘widespread violence’ and ‘terrible acts’ had been ‘committed on both sides’ (emphasis added)—a vindication of the violence of white supremacy reminiscent of U.S. President Donald Trump’s defence of the murder of civil rights activist Heather Heyer by white nationalist James Alex Fields, Jr.31 For Hague, therefore, the murders of ‘thirty-two European settlers . . . in horrific circumstances’ at the hands of a colonized people was equivalent to, and justified, the torture, maiming, or execution of an estimated 90,000 Kenyans; anti-colonial insurgency was reduced, in addition, to ‘terrorist actions’.32 Displacing the blame for colonial violence onto its recipients made it possible, in turn, to avoid having to apologize for it; Hague instead merely expressed ‘sincere regret’33 for both the torture and—lest anyone forget that Britain had been in Kenya to ‘civilize’ it—that such torture had ‘marred Kenya’s progress towards independence’ (which, by implication, Britain had been working to bring about).34 Apologies were clearly therefore for other, less ‘civilized’ states, ones without what Hague referred to as Britain’s ‘high standards of human rights’—such as the apology that Britain wrested out of Libya’s revolutionary leadership, during the course of the Matua trial (and on behalf of the Libyan people), for acts committed by the regime of the very man it was struggling to overthrow, Muammar Gaddafi.35
30 Caroline Elkins, ‘Alchemy of Evidence: Mau Mau, the British Empire and the High Court of Justice’, The Journal of Imperial and Commonwealth History 39/5 (2011), 731.
31 HC Deb 6 June 2013, 563, col. 1692, 1696; and Michael D. Shear and Maggie Haberman, ‘Trump Defends Initial Remarks on Charlottesville; Again Blames “both sides” ’, The New York Times (New York, 15 August 2017 <https://www.nytimes.com/2017/08/15/us/politics/trump-press-conference-charlottesville. html> accessed 13 May 2020.
32 HC Deb 6 June 2013, 563, col. 1696. Although ninety-five European settlers had actually died Hague notably did not provide any statistics on the number of Kenyans murdered by Europeans. Simon Webb, A History of Torture in Britain (Barnsley: Pen & Sword History 2018), 109 (hereafter Webb, A History of Torture).
33 The trope of regret has become the standard response of the British government too all demands that it redress the wrongs of its imperial past. See, for example, Owen Bowcott and Ian Cobain, ‘UK Sternly Resists Paying Reparations for Slave Trade Atrocities and Injustices’, The Guardian (London, 24 February 2014) <https://www.theguardian.com/world/2014/feb/24/uk-resists-reparation-slavery> accessed 19 May 2020; Robin McKie, ‘After 100 Years, Still no Apology for Amritsar Massacre’, The Guardian (London, 14 April 2019 <https://www.theguardian.com/world/2019/apr/14/calls-for-apology-100-years-afteramritsar-massacre> accessed 19 May 2020; and Charlotte Graham-McLay, ‘UK Expresses “Regret” Over Māori Killings After Cook’s Arrival in New Zealand’, The Guardian (London, 2 October 2019 <https://www. theguardian.com/world/2019/oct/02/britain-expresses-regret-over-maori-killings-after-captain-cooksarrival-in-new-zealand> accessed 19 May 2020.
34 HC Deb 6 June 2013, 563, col. 1692; see also ‘UK to Compensate Kenya’s Mau Mau Torture Victims’, Press Association, The Guardian (London, 6 June 2013). <https://www.theguardian.com/world/2013/jun/ 06/uk-compensate-kenya-mau-mau-torture> accessed 13 May 2020.
35 HC Deb 6 June 2013, 563, col. 1696; and McGreal, ‘Torture and Killing’ (n 24). The hearings for Matua & Ors were held April 7–14, 2011.
The Matua case and its aftermath thus offer a number of insights into colonial violence and how it operates. The case reveals, to begin with, that such violence was often systematized, with whole swathes of colonized populations—in the case of the Kikuyu, an entire ethnic group—abandoned by the state. It demonstrates, secondly, that although Britain might conceive of torture as a barbaric practice long relegated to its past, as in the case of other liberal democratic states such violence has, instead, been central both to the disciplining, or ‘civilizing’, of what Sara Ahmed refers to as ‘other others’, as well as to the maintenance of its sovereignty.36 Thirdly, the case illustrates some of the many discourses and practices of denial regarding British culpability for torture and other forms of colonial violence. Since the voluminous nature of the evidence made it impossible for the British government to completely deny its accountability for systematized torture in Kenya it sought, instead, to rename (‘terrible acts’), discredit (‘bad apples’; we do not torture because we are British), and justify such violence through victim-blaming (‘terrorist actions’).37
But while disclosing the nature of colonial violence, Matua also made such violence appear as exceptional, resorted to only ‘in times of crisis’, such as the ‘endgame’ of empire or, more recently, the new imperial, biopolitical, and exceptional global order generated by United States-led ‘war on terror’.38 The global torture regime established
36 Sara Ahmed ‘This Other and Other Others’, Economy and Society 31/ 4 (2002), 558–72. For the use of torture as a ‘civilizing’ tool see Talal Asad, ‘On Torture, or Cruel, Inhuman and Degrading Treatment’, in Arthur Kleinman, Veena Das, and Margaret Lock (eds), Social Suffering (University of California Press 1997), 285–308; Marina Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press 2008); and Samera Esmeir, Juridical Humanity: A Colonial History (Stanford: Stanford University Press 2012), 145 (hereafter Esmeir, Juridical Humanity). For the relationship between torture and democracy see Darius Rejali, Torture and Democracy (Princeton and Oxford: Princeton University Press 2007) (hereafter Rejali, Torture and Democracy); Jinee Lokaneeta, Transnational Torture: Law, Violence, and State Power in the United States and India (New York and London: New York University Press 2011) (hereafter Lokaneeta, Transnational Torture); W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Cambridge, MA and London: The Belknap Press of Harvard University Press 2018); Banham, Liberal Democracies (n 19); and Shampa Biswas and Zahi Zalloua, Torture: Power, Democracy and the Human Body (Seattle, WA: University of Washington Press 2011).
37 According to Stanley Cohen these are the standard forms that official denial takes. See Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge: Polity Press 2001), xi (hereafter Cohen, States of Denial).
38 Mark Condos, The Insecurity State: Punjab and the Making of Colonial Power in British India (Cambridge: Cambridge University Press 2017), 8 (hereafter Condos, The Insecurity State); and Cobain, Cruel Britannia (n 19) 90. As Ruth Blakely and Sam Raphael note, however, the torture and other forms of violence enacted against ‘other others’ in the ‘endgame’ of empire and the ‘war on terror’ are intimately connected, with the latter ‘less a departure from the normative [249] behaviour of leading liberal-democratic states as provided by a new “state of exception”, and more the re-emergence of practices that have lain at the heart of the US and British imperial projects for decades’. Ruth Blakely and Sam Raphael, ‘British Torture in the “War on Terror” ’, European Journal of International Relations 23/2 (2017), 250 (hereafter Blakely and Raphael, ‘British Torture’). For scholarship on the ‘war on terror’ and the state of exception see Judith Butler, Precarious Life: The Powers of Mourning and Violence (London and New York: Verso 2004) (hereafter Butler, Precarious Life); Giorgio Agamben, State of Exception (Kevin Attell tr, Chicago and London: The University of Chicago Press 2005) (hereafter Agamben, State of Exception); Jef Huysmans, ‘International Politics of Insecurity: Normativity, Inwardness and the Exception’, Security Dialogue 27/1 (2006), 11–29; Vivienne Jabri, ‘War, Security and the Liberal State’, Security Dialogue 37/1 (2006), 47–64; and Andrew W. Neal, Exceptionalism and the Politics of Counter-Terrorism: Liberty, Security and the War on Terror (London: Routledge 2009). Some scholars argue that such an exceptional global order emerged earlier. See, for example, Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press 2000), 9–10, 180, 345 (hereafter Hardt and Negri, Empire); and Mithi Mukherjee, India in the Shadows of Empire: A Legal and Political History (1774-1950) (New Delhi: Oxford University Press 2010), 5.
by the United States against those ‘other others’ (primarily Muslims) who, in Judith Butler’s words, are not regarded as ‘grievable’, undoubtedly serves as a sign of the ways in which, as Giorgio Agamben has argued, the exception has become the norm.39 Britain has also, despite how ‘well-rehearsed’ the denial of torture has become in a country whose history has been so entwined with empire, played a key role in the establishment and maintenance of such a system—and in the process developed what Ruth Blakely and Sam Raphael refer to as a ‘peculiarly British’, or ‘neo-colonial’ approach to torture.40 According to Blakely and Raphael, in the colonial era ‘torture formed part of a broader strategy of imperial policing and, as a result, could be blatant, widespread and extremely brutal, with British officials playing a direct role’.41 Beginning in the early 1970s, however, revelations of the routine use of torture by British security services in Northern Ireland led, they argue, to the generation of policy and legal constrictions on the enactment of violence by British officials, and with it the development of a ‘neo-colonial’ form of torture.42 Such a form entails British agents assuming a facilitatory rather than direct role in the torture enacted by United States security services and those of other states while engaging in a ‘cautious pantomime of legal and procedural adherence’ that enables Britain to appear to be observing national and international human rights norms.43 Drawing upon Judith Butler, the authors argue
39 Butler, Precarious Life (n 38) 34; and Agamben, State of Exception (n 38) 2. The literature on the United States’ torture regime is far too vast to do justice to here. Notable examples include: Butler, Precarious Life (n 38); Slavoj Žižek, ‘Between Two Deaths: The Culture of Torture’, London Review of Books (3 June 2004) <http://www.lacan.com/zizektorture.htm> accessed 27 May 2020; Hazel Carby, ‘A Strange and Bitter Crop: The Spectacle of Torture’ (Open Democracy, 11 October 2004) <https://www.opendemocracy.net/en/ article_2149jsp/> accessed 27 May 2020); Paul W. Kahn, Sacred Violence: Torture, Terror and Sovereignty (Ann Arbor: University of Michigan Press 2008); Tzvetan Todorov, Torture and the War on Terror (London: Seagull 2009); and United States and Dianne Feinstein, The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (2014) <https://www.intelligence.senate.gov/sites/default/files/publications/CRPT-113srpt288.pdf> accessed 27 May 2020.
40 Caroline Elkins, ‘The “Moral Effect” of Legalized Lawlessness: Violence in Britain’s Twentieth-Century Empire’, Historical Reflections 44/1 (2018), 79; and Blakely and Raphael, ‘British Torture’ (n 38) 244, 250. See also Sir Peter Gibson, The Report of the Detainee Inquiry (London: The Stationery Office, 2013); and Banham, Liberal Democracies (n 19) Ch. 6. For works on Britain’s role in the extradition, interrogation, and torture of individuals who were classified not as ‘accused’ or ‘enemy combatants’ but ‘detainees’ (see Agamben, State of Exception (n 38) 4, for the significance of this term), as well as use of information obtained through torture, see, for example, Alex Danchev, ‘Accomplicity: Britain, Torture and Terror’, British Journal of Politics & International Relations 8/4 (2006), 587–601; Phillip N. S. Rumney, ‘The Torture Debate: A Perspective From the United Kingdom’, in Jon Moran and Mark Phythian (eds), Intelligence, Security and Policing Post-9/11 (Houndmills, HA: Palgrave Macmillan 2008), 135–58; Mark Elliott, ‘Torture, Deportation and Extra-Judicial Detention: Instruments of “The War on Terror” ’, Cambridge Law Journal 62/2 (2009), 245–8; Jamie Gaskarth, ‘Entangling Alliances? The UK’s Complicity in Torture in the Global War on Terrorism’, International Affairs 87/4 (2011), 945–64; Roger Gough, Stuart McCracken, and Andrew Tyrie, Account Rendered: Extraordinary Rendition and Britain’s Role (London: Biteback Pub. 2011); Kelly, This Side of Silence (n 19); Cobain, Cruel Britannia (n 19); A. T. Williams, A Very British Killing: The Death of Baha Mousa (London: Jonathan Cape 2013); Vian Bakir, Torture, Intelligence and Sousveillance in the War on Terror: Agenda-Building Struggles (London and New York: Routledge 2016); Blakely and Raphael, ‘British Torture’ (n 38); and Satvinder S. Juss, ‘U.S. Torture on “Black Sites”: A Lesson From Great Britain?’, in Satvinder S. Juss (ed.), Human Right and America’s War on Terror (London and New York: Routledge 2019), 161–82.
41 Blakely and Raphael, ‘British Torture’ (n 38) 250.
42 Ibid.
43 Ibid 251; and Banham, Liberal Democracies (n 19) 119–22. Blakely and Raphael note, however, that ‘echoes of colonial-era torture’ can be seen in the behaviour of British security services in Iraq. Yet the true scale of the torture committed by such services has never been disclosed. In 2010 the British government
that playing such a facilitatory role in torture has been made possible by a new entwinement of sovereignty with governmentality, in which virtually unchecked power is given to unelected officials, or what Butler refers to as ‘petty sovereigns’.44 Such ‘sovereigns’ have engaged in acts ranging from the apprehension and detention of suspects to ‘disappearing’ them into secret prisons, as well as providing intelligence that laid the basis for torture or receiving intelligence acquired through torture.45 The British government has, in addition, further facilitated such activities through such means as the 2001 Anti-Terrorism, Crime and Security Act (which authorizes the indefinite detention without trial of foreign nationals who cannot be deported because they are at risk of being tortured), enabling its territory to be used as a vital administrative hub by the United States in the maintenance of its global detention and torture network,
established The Iraq Historic Allegations Team to investigate allegations against British security personnel who had served in Iraq—albeit in order, in effect, to exonerate them; it was set up, in addition, in such a way as to prevent investigation of wider questions regarding accountability or the systemic nature of torture and other forms of violence. Yet the sheer number of allegations—there were 3,400 open cases by 2017—combined with jingoistic, right-wing media and political outrage over ‘spurious claims’ and ‘vile witch-hunts’ against ‘war heroes’ led the Conservative government to shut the investigation down that same year without any cases having been prosecuted (it has, however, paid out more than £21 million to Iraqi torture victims in over 300 separate cases, despite continuing to deny liability for such claims). However, in 2014 the International Criminal Court began an investigation into Britain’s war crimes in Iraq that, at the time this book went to press is still ongoing, and in 2018 the parliamentary Intelligence and Security Committee published a report on detainee mistreatment and rendition in Iraq that detailed both the direct and indirect involvement of UK security services in torture, although its insights were limited by the British government’s refusal to provide access to key witnesses and the report has yet to be followed by a public inquiry. The British government’s hostile environment for the treatment of asylum seekers who are victims of torture, which includes holding them in indefinite detention, along with the tremendous breadth in executive powers conferred by the 2018 European Union (Withdrawal) Act and its repeated commitment to repealing the 1998 Human Rights Act, leave little hope, furthermore, that the UK will address its torture record in Iraq. Blakely and Raphael, ‘British Torture’ (n 38) 250; Samira Shackle, ‘Why We May Never Know if British Troops Committed War Crimes in Iraq’, The Guardian (London, 7 June 2018) <https://www.theguardian.com/news/2018/jun/07/british-troops-war-crimes-iraq-historic-allegationsteam> accessed 28 May 2020; Owen Bowcott, ‘The Hague Says Claims of War Crimes by UK Troops Have ‘Reasonable Basis’, The Guardian (London, 4 December 2017) <https://www.theguardian.com/law/2017/ dec/04/icc-to-continue-investigation-into-claims-of-war-crimes-by-british-troops> accessed 28 May 2020; Intelligence and Security Committee of Parliament, Detainee Mistreatment and Rendition: 2001-2010 (2018); and Redress, ‘The UK’s Implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (March 2019) <https://redress.org/wp-content/uploads/ 2019/05/UK-Implementation-of-UNCAT_REDRESS_March2019_Web.pdf> accessed 8 May 2020.
44 Blakely and Raphael, ‘British Torture’ (n 38) 245; and Buter, Precarious Life (n 38) 56. Although Blakely and Raphael use the term ‘biopower’ instead of ‘governmentality’ I have retained the more accurate term that Butler uses. See also Michel Foucault, ‘Governmentality’, in Graham Burchell, Colin Gordon, and Peter Miller (eds), The Foucault Effect: Studies in Governmentality: With Two Lectures by and an Interview with Michel Foucault (Chicago: University of Chicago Press 1991), 87–104; and Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975-76, Maurio Bertani and Alessandro Fontana (eds) (David Macey tr, New York: Picador, 1997).
45 Blakely and Raphael, ‘British Torture’ (n 38) 246–49. See also Owen Bowcott, ‘MI5 Policy Gives Agents “Legal Immunity” To Commit Serious Crimes’, The Guardian (London, 5 November 2019) <https:// www.theguardian.com/ uk- news/ 2019/ nov/ 05/ mi5- policy- gives- agents- legal- immunity- to-commitserious-crimes> accessed 27 May 2020; ‘Supreme Court Rules Torture and Rendition Claims Against UK Government Should Proceed’ (Justice.Org., 17 January 2017) <https://justice.org.uk/wp-content/uploads/ 2017/01/Belhaj-Supreme-Court-press-release-2017-01-17.pdf> accessed 28 May 2020; and Banham, Liberal Democracies (n 19) 123–5.
and the rendition of suspects—all while repeatedly declaring Britain’s commitments to human rights.46
Blakely and Raphael are undoubtedly right to point to the facilitatory role of British security services, acting as ‘petty sovereigns’, in the perpetuation of torture in the ‘war on terror’. But although there may be something decidedly British about such a role, there is, however, nothing new, or neo-colonial, about it, nor is it possible to posit a distinct break between the deployment of torture against ‘other others’ in the colonial versus post-colonial eras.47 Novel configurations of colonial governance undoubtedly emerged in the aftermath of the Second World War, as they did after the First World War, but as Kim Wagner argues, ‘the logic that underpinned the violence by which they were sustained was anything but new’.48 Late colonial regimes simply seem to have become more repressive following the emergence of anti-colonial nationalist movements because they have been largely analysed in isolation from the structural and systemic violence that not only made colonial rule possible but that gave birth to such movements.49 Torture and other forms of brutal violence may, therefore, have been perpetuated by colonial regimes in ‘exceptional’ or ‘emergency’ conditions, but such violence was far from exceptional.50 To assume it was is to ignore that the exception is merely the explosion, into the open, of violence ‘that is normally contained’, as well as to purge colonialism of its constitutive violence.51 This is not to deny that colonial violence takes different forms, or that there are different degrees or practices of torture. It is, in fact, a key contention of this book that we need to pay attention to the
46 Blakely and Raphael, ‘British Torture’ (n 38) 246–7, 252–7; and Banham, Liberal Democracies (n 19) 147; see also Ian Cobain and Ewen MacAskill, ‘The True Scale of UK Role in Torture and Rendition After 9/11 Revealed’, The Guardia (London, 28 June 2018) <https://www.theguardian.com/uk-news/2018/jun/ 28/uk-role-torture-kidnap-terror-suspects-after-911-revealed> accessed 27 May 2020; and Dan Sabbagh, ‘MoD Says Revised Torture Guidance Does Not Lower Standards’, The Guardian (London, 20 May 2019) <https:// www.theguardian.com/ law/ 2019/ may/ 20/ rewritten- mod- guidance- could- leave- door- openfor-torture> accessed 27 May 2020. Parliament, the judiciary, civil rights organizations, and the press— particularly The Guardian have, however, done much to challenge such a narrative. Yet the former has also served to undermine it, as in the sanctioning of the use of evidence obtained through torture by the House of Lords in 2005. See 303 A (FC) v. Secretary of State [2005] UKHL 71, cited in Banham, Liberal Democracies (n 19) 149–50.
47 The United States also, of course, gave tremendous power to its ‘petty sovereigns’ in the ‘war on terror’, as Butler demonstrates, but in contrast to British personnel they were clearly not restricted to a purely facilitatory role in the perpetuation of torture. See Butler, Precarious Life (n 38).
48 Kim Wagner, ‘ “Calculated to Strike Terror”: The Amritsar Massacre and the Spectacle of Colonial Violence’, Past and Present 233 (2016), 223.
49 Ibid. On structural violence see n 117.
50 The same can be said for the desire to avoid being seen to perpetuate torture, which is the reason why, according to Simon Webb, the British largely employed colonial subjects to do it. Webb, A History of Torture (n 32) 98.
51 Nancy Scheper-Hughes, ‘Bodies, Death, and Silence’, in Nancy Scheper-Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 177. As numerous studies have shown, torture can operate as a form of ‘contained’ as well as exceptional violence. See, for example, Darius Rejali, Torture and Modernity: Self, Society, and State in Modern Iran (Boulder, CO: Westview Press 1994); Rejali, Torture and Democracy (n 36); Lokaneeta, Transnational Torture (n 36); George C. Thomas III and Richard A. Leo, Confessions of Guilt: Torture to Miranda and Beyond (New York: Oxford University Press 2012) (hereafter Thomas and Leo, Confessions of Guilt); Rachel Wahl, Just Violence: Torture and Human Rights in the Eyes of the Police (Stanford: Stanford University Press 2017) (hereafter Wahl, Just Violence); and Jinee Lokaneeta, The Truth Machines: Policing, Violence and Scientific Interrogations in India (Ann Arbor, MI: University of Michigan Press 2020) (hereafter Lokaneeta, The Truth Machines); and Laurence Ralph, The Torture Letters: Reckoning With Police Violence (Chicago: University of Chicago Press 2020).
forms that colonial violence takes in order to understand the rationales behind it. But though the nature of the violence to which colonized bodies were subject may have varied—assaulting them with whips embedded with small pieces of iron and then rubbing salt into the wounds in order to extract information, as happened to members of the Cypriot independence EOKA movement, for example, would have posed problems for Indian police officers seeking confessions that would hold up in a court of law—it was nonetheless ‘baked into the everyday experience of empire’, part of its ‘normal (repressive) functioning’.52
The aim of Colonial Terror is to demonstrate that extraordinary violence was part of the ordinary operation of colonial states. Focusing on India between the early nineteenth century and the First World War, this book explores the centrality of the torture of Indian bodies to the law-preserving violence of colonial rule.53 Since the Indian state, like all colonial regimes, was reliant on what have conventionally been termed ‘intermediaries’, which included large numbers of what I shall refer to, pace Martha K. Huggins, Mika Haritos-Fatouros, and Philip G. Zimbardo, as ‘violence workers’, the torture that I will be examining was, therefore, enacted largely by Indians, acting as ‘petty sovereigns’, on Indian bodies.54 But regardless of the motivations of the torturers (which I will examine in Chapter 4), torture was facilitated, systematized, and ultimately sanctioned by first the East India Company and, later, the Raj. This is because the torture carried out by colonial officials, particularly the police—the ‘official, instituted go-betweens’ that connected the colonial state to its colonized population— benefitted the colonial regime, since in rendering the police a source of terror such violence workers played a key role in the construction and maintenance of state sovereignty.55 It was because torture was so advantageous that neither the Company nor the Raj made concerted efforts to eradicate it, resorting instead to disowning and, occasionally, punishing their violence workers whenever torture erupted into scandal in order to uphold the illusion that torture was a barbaric, atavistic habit that they were keen to suppress.56 This book explores why and how the police in colonial India came
52 Ray Furlough, ‘Cypriots Seek Recompense Over British “Torture” ’, BBC News (London, 20 November 2012) <https://www.bbc.co.uk/news/world-europe-20302280> accessed May 18 2020; Richard N. Price, ‘The Psychology of Colonial Violence’, in Phillip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 25 (hereafter Price, ‘The Psychology of Colonial Violence’); and Reynolds, Empire, Emergency (n 15) 37. Torture by officials in colonial India, according to Derek Elliott, was less severe when enacted to secure revenue than to obtain a confession. Derek Llewellyn Elliott, ‘Torture, Taxes and the Colonial State in Madras, c. 1800-1858’ (PhD Diss., University of Cambridge 2015), 116 (hereafter Elliott, ‘Torture, Taxes’).
53 As my date range demonstrates, I am using the term ‘colonial rule’ to encompass the governance of India by both the East India Company and the Raj, rather than positing the 1857 Revolt as a seminal break in modes of governance. For an analysis of the concept of law-preserving violence see Walter Benjamin, ‘Critique of Violence’, Reflections: Essays, Aphorisms, Autobiographical Writings (Edmund Jephcott tr, New York: Shocken 1978), 277–300 (hereafter Benjamin, ‘Critique of Violence’).
54 Martha K. Huggins, Mika Haritos-Fatouros, and Philip G. Zimbardo, Violence Workers: Police Torturers and Murderers Reconstruct Brazilian Atrocities (Berkeley: University of California Press 2002) (hereafter Huggins, Haritos-Fatouros, and Zimbardo, Violence Workers).
55 Fanon, Concerning Violence (n 1) 3. Torture thus exacerbated the emotional significance attached to the police, as society’s regulators, of apprehension, anxiety, and fear. K. S. Dhillon, Defenders of the Establishment: Ruler-Supportive Police Forces of South Asia (Shimla: Indian Institute of Advanced Study 1998), 28 (hereafter Dhillon, Defenders of the Establishment).
56 Webb, A History of Torture (n 32) 100.
to operate as a form of terror, and examines the role of torture as a terrorizing tactic of colonial policing.57
Drawing upon the work of both Giorgio Agamben and Michel Foucault, Colonial Terror argues, furthermore, that it is only possible to understand the terrorizing nature of the colonial police in India by viewing the colonial regime as what I term a ‘regime of exception’. My goal, in using such a term, is to offer new insights into the nature and operation of both colonial law and state sovereignty. Although there has been considerable debate as to whether colonial regimes functioned according to a ‘rule of law’, or whether they can be viewed as states of exception,58 I seek to demonstrate that in the case of India two different forms, or levels, of extraordinarity, had come to characterize the British colonial regime in the operation of its sovereignty by the early nineteenth century.59 The first involved the creation of a state, or spaces, of exception, an ‘insidious politics of emergency’ wrought by widespread emergency regulations through which particular groups or segments of the Indian population were excluded from the law.60 The second level of exceptionality was generated by ‘petty sovereigns’ who, through the enactment of illegal violence in the operation of the law—namely
57 I am using the term ‘terror’ here in its original sense, which Elleke Boehmer and Stephen Morton designate as ‘a brutal material and corporeal experience of sovereign power in the raw’, or what Ranabir Samaddar describes as ‘uncertainty, the capacity to scare, “terrorize”, violence, symbolic violence, extraordinary methods, unaccountability, uncertain prospects, different rules (if you understand them) of engagement and murder, and different methods’. Elleke Boehmer and Stephen Morton, ‘Introduction: Terror and the Postcolonial’, in Elleke Bohmer and Stephen Morton (eds), Terror and the Postcolonial: A Concise Companion (Oxford: Wiley-Blackwell 2010), 12; and Ranabir Samaddar, ‘Colonial State, Terror and Law’, in Imtiaz Ahmed (ed.), Understanding Terrorism in South Asia: Beyond Statist Discourses (Manohar: Regional Centre for Strategic Studies, Colombo 2006), 47. See also Partha Chatterjee, ‘Terrorism: State Sovereignty and Militant Politics in India’, in Carol Gluck and Anna Lowenhaupt Tsing, Words in Motion: Toward a Global Lexicon (Durham, NC: Duke University Press 2009), 240; and Alex Tickell, Terrorism, Insurgency and Indian-English Literature, 1830-1947 (New York and London: Routledge 2012), 11–12 (hereafter Tickell, Terrorism, Insurgency).
58 See, for example, Achille Mbembe, ‘Necropolitics’, Public Culture 15/1 (2003), 11–40 (hereafter Mbembe, ‘Necropolitics’); Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: The University of Michigan Press 2003) (hereafter Hussain, The Jurisprudence of Emergency); Randall Williams, ‘A State of Permanent Exception: The Birth of Modern Policing in Colonial Capitalism’, Interventions: International Journal of Postcolonial Studies 5/3 (2003), 322–44; Thoms Blum Hansen and Finn Stepputat, ‘Introduction’, in Thomas Blom Hansen and Finn Stepputat (eds), Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World (Princeton and Oxford: Princeton University Press 2005), 1–36; Arun Chowdhury, ‘The Colony as Exception (Or, Why Do I Have to Kill You More than Once?’, Borderlands 6/3 (2007) <http://www.borderlands.net.au/vol6no3_2007/chowdhury_once.htm> (accessed 17 June 2020); Tom Lloyd, ‘States of Exception? Sovereignty and Counter-insurgency in British India, Ireland and Kenya circa 1810-1960’ (PhD Diss., The University of Edinburgh 2009); Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (New York: Cambridge University Press 2010)(hereafter Benton, A Search for Sovereignty); Tickell, Terrorism, Insurgency (n 57); Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism (Edinburgh: Edinburgh University Press 2012); Stephen Morton, States of Emergency: Colonialism, Literature and Law (Liverpool: Liverpool University Press, 2013); Helle Rydstrom, ‘Politics of Colonial Violence: Gendered Atrocities in French Occupied Vietnam’, European Journal of Women’s Studies 22/2 (2015), 191–207; Reynolds, Empire, Emergency (n 15); Durba Ghosh, Gentlemanly Terrorists: Political Violence and the Colonial State in India, 1919-1947 (New York: Cambridge University Press 2017); and Bhavani Raman, ‘Law in Times of Counterinsurgency’, in Aparna Balachandran, Rashmi Pant, and Bhavani Raman, Iterations of Law: Legal Histories from India (New Delhi: Oxford University Press 2018), 120–46 (hereafter Raman, ‘Law in Times’).
59 I have drawn the basis of such a framework from Santana Khanikar’s insightful work on the violence of the postcolonial Indian state, State, Violence and Legitimacy in India (New Delhi: Oxford University Press 2018) (hereafter Khanikar, State, Violence and Legitimacy).
60 Reynolds, Empire, Emergency (n 15) 90.
an ‘accommodation of the illegal’, or ‘lawless enforcement of the laws’—created what Didier Fassin has characterized as ‘petty states of exception’.61 This is not to suggest, however, that the rule of law was absent in such regimes of exception. Such regimes encompassed, instead, both the suspension of the law and the legalization of exceptional measures and practices, transforming law into what John Comaroff refers to as ‘lawfare’.62 The varying modes of operation of sovereign power in colonial India mean that colonial subjects were thus both included within the domain of colonial law while also being abandoned by it.63 It was in such fertile ground that torture was able to flourish.
The Violence of Empire
What animates effective rather than idle colonial history is not its timeliness—how well it fits current politics and the stories long rehearsed—but how deeply it disrupts the stories we seek to tell, what untimely incisions it makes into received narratives, how much it refuses to yield to the pathos of moral outrage or to new heroes, subaltern or otherwise.64
For at least a third of Britons the British Empire is something to be proud of, and Britain’s former colonies are better off for having been colonized; no less than a quarter, moreover, wish that Britain still had an empire.65 Few regard it as a source of
61 Khanikar, State, Violence and Legitimacy (n 59) 71–2; Upenda Baxi, The Crisis of the Indian Legal System (New Delhi: Vikas Publishing House Pvt. Ltd. 1982), 87 (hereafter Baxi, The Crisis); and Didier Fassin, ‘Petty States of Exception: The Contemporary Policing of the Urban Poor’, in Mark Maguire, Catarina Frois, and Nils Zurawski (eds), The Anthropology of Security: Perspectives from the Frontline of Policing, Counterterrorism and Border Control (London: Pluto 2014), 104–17 (hereafter Fassin ‘Petty States of Exception’); see also Radha Kumar, ‘Police Matters: Law and Everyday Life in Rural Madras, c. 1900-1960’ (PhD Diss., Princeton University 2015), 249 (hereafter Kumar, ‘Police Matters’). Neeladri Bhattacharya offers an excellent analysis of the ways in which ‘petty sovereigns’ transformed the pre-colonial practice of begar, or unpaid labour, into a system of forced labour, which was then, through the passage of the 1903 Military Transport Act, ‘sanctified as legal contract’. See Neeladri Bhattacharya, ‘Violence and the Languages of Law’, in Aparna Balachandran, Rashmi Pant, and Bhavani Raman (eds), Iterations of Law: Legal Histories from India (New Delhi: Oxford University Press 2018), 114 (hereafter Bhattacharya, ‘Violence’).
62 John Comaroff, ‘Colonialism, Culture and Law: A Foreword’, Law and Social Inquiry 26 (2001), 306 (hereafter Comaroff, ‘Colonialism, Culture and Law’); and Elizabeth Kolsky, ‘The Colonial Rule of Law and the Legal Regime of Exception: Frontier “Fanaticism” and State Violence in British India’, American Historical Review 120/4 (2015), 1245 (hereafter Kolsky, ‘The Colonial Rule of Law’).
63 Bhattacharya, ‘Violence’ (n 61) 108.
64 Ann Laura Stoler, ‘Colonial Aphasia: Race and Disabled Histories in France’, Public Culture 23/1 (2011), 144 (hereafter Stoler, ‘Colonial Aphasia’).
65 ‘How unique are British attitudes to empire?’ (YouGov, 11 March 2020) <https://yougov.co.uk/topics/ international/articles-reports/2020/03/11/how-unique-are-british-attitudes-empire> accessed 1 June 2020. The number of Britons who regard empire in a positive light has apparently fallen, however; in a similar survey in 2014 no less than half the respondents felt that empire was something to be proud of. Furthermore, almost 70 per cent of the 2,703 Britons surveyed in 2019 on whether ‘historical injustice, colonialism and the role of the British Empire’ should be taught in schools approved of such a motion— although whether survey respondents regarded ‘historical injustice’ and the ‘British Empire’ as synonymous is unclear. ‘The British Empire is “something to be proud of” ’ (YouGov, 26 July 2014) <https://yougov. co.uk/topics/politics/articles-reports/2014/07/26/britain-proud-its-empire> accessed 1 June 2020; and ‘Do you think that historical injustice, colonialism and the role of the British Empire should or should not be
shame.66 The belief of British empire-builders that ‘the British Empire was not a violent concern’, at least not in comparison to the Belgian, Dutch, or German empires, continues, therefore, to be widely held.67 Such a belief is sustained by an education system from which knowledge about or discussion of empire is sedulously excluded,68 a media and popular publishing industry that revels in ‘obfuscatory nostalgia’ about empire,69 and a wide range of academic scholarship, from imperial history to anthropology and international relations,70 that continues to ignore the violence, exploitation, and social suffering upon which empire was built and sustained.71 The work of scholars of imperial and colonial violence has, additionally, often been widely
taught as part of the national curriculum?’ (YouGov, 27 November 2019) <https://yougov.co.uk/topics/arts/ survey-results/daily/2019/11/27/72aa7/2> accessed 1 June 2020.
66 Ibid. Only 19 per cent of Britons, according to the poll, view empire in this light.
67 Esme Cleall, Missionary Discourses of Difference, 1840-1900: Negotiating Otherness in the British Empire, 1840–1900 (Houndsmills, Hampshire: Palgrave Macmillan 2012), 145; and Wagner, ‘Savage Warfare’ (n 22) 223.
68 Deana Heath, ‘School Curriculum Continues to Whitewash Britain’s Imperial Past’ (The Conversation, 27 January 2016) <https://theconversation.com/school-curriculum-continues-to-whitewash-britainsimperial-past-53577> accessed 3 June 2020; and Deana Heath, ‘British Empire is Still Being Whitewashed by the School Curriculum—Historian on Why This Must Change’ (The Conversation, 2 November 2018) <https://www.researchgate.net/publication/251048702_Colonising_and_Exterminating_Memories_of_ Imperial_Violence_in_Britain_and_France> accessed 3 June 2020. See also A. D. Burns, ‘The Jewel in the Curriculum: Teaching the History of the British Empire’, History Education Research Journal 12/2 (2014), 109–21.
69 Stephen Howe, ‘Colonising and Exterminating? Memories of Imperial Violence in Britain and France’, Histoire@Politique: Politique, Culture et Société 11 (2010) [DOI: https://doi.org/10.3917.hp.011.0012] (hereafter Howe, ‘Colonising and Exterminating?’). As Paul Gilroy has argued, such nostalgia has functioned as a means of dealing with what he refers to as the ‘postcolonial melancholia’ wrought by the demise of empire. Paul Gilroy, After Empire: Melancholia or Convivial Culture? (London, Routledge 2004). Notable examples of popular historical works that extol empire include Niall Ferguson, Empire: How Britain Made the Modern World (London: Penguin 2003); Piers Brendan, The Decline and Fall of the British Empire, 1781-1997 (New York: Knopf 2008); H. W. Crocker, II, The Politically Incorrect Guide to the British Empire (Washington, D.C.: Regnery 2011); and Jeremy Paxman, Empire: What Ruling the World Did to the British (London: Penguin 2012). For an analysis of the portrayal of empire in British television shows see James Morris, ‘Popularisation of Imperial History: The Empire on Television’, The Journal of Imperial and Commonwealth History 1/1 (1972), 113–18; and N. C. Fleming, ‘Echoes of Britannia: Television History, Empire and the Critical Public Sphere’, Contemporary British History 24/1 (2010), 1–22.
70 Part of the difficulty in regard to academic scholarship is the ways in which empire has, or has failed to be, written into British history since the ‘imperial turn’ in the 1980s, although the ignoring—or, in some cases, outright denial—of the violence that pervaded Britain’s empire is not simply a problem particular to British history. See, for example, Keith Windshuttle, The Fabrication of Aboriginal History (Sydney: Macleay Press 2002); Antoinette Burton (ed.), After the Imperial Turn: Thinking Through and With the Nation (Durham and London: Duke University Press 2003); and Joanna de Groot, Empire and History-Writing in Britain c. 1750-2012 (Manchester: Manchester University Press 2013), Ch. 5. For the silence of the disciplines of anthropology and international relations about the violence of empire see Nancy Scheper-Hughes and Philippe Bourgois, ‘Introduction: Making Sense of Violence’, in Nancy Scheper-Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 6–8; and Randolph B. Persaud and Narendran Kumarakulasingam, ‘Violence and Ordering of the Third World’, Third World Quarterly 40/2 (2019), 199–206.
71 Social suffering, according to Arthur Kleinman, ‘is the effect of the social violence that social orders— local, national, global—bring to bear on people through denying them basic human rights or subjecting them to various forms of deprivation, exploitation and abuse’ (emphasis in original). Arthur Kleinman, ‘The Violences of Everyday Life: The Multiple Forms and Dynamics of Social Violence’, in Veena Das, Arthur Kleinman, Mamphela Ramphele, and Pamela Reynolds (eds), Violence and Subjectivity (Berkeley: U.C. Press 2000), 226.
dismissed.72 For some scholars, it seems, violence is simply too banal to be worth bothering with; as the eminent Oxford professor of imperial and global history, John Darwin, recently observed, studying the violence wrought by empire would not ‘add much to the sum of knowledge’.73 For others aspects of such violence, such as British ‘counterinsurgency’ operations, serve as an inspirational toolkit for grappling with twenty-first century conflicts.74
As a result there is, arguably, a far larger and richer body of scholarship on the violence of colonial knowledge than there is on the physical violence unleashed by empire.75 The scholarship on violence that does exist focuses, in addition, primarily on cataclysmic events like the Indian Revolt of 1857 and the 1919 Amritsar massacre, which tend to be regarded as ‘discrete event[s] and as little more than . . . item[s] on the so-called “balance-sheet” of empire’—not, in other words, as symptoms of the structural and systemic violence of colonialism.76 Even the literature on colonial warfare largely evades, astonishingly, the actual experience of violence, and concentrates primarily on decolonization rather than on conquest.77
Since ‘[t]o inhabit imperialist society is virtually by definition to be blind to the cruel reality of imperial domination’, such perspectives on empire are sustained by a culture of denial.78 In addition to being built into state ideologies, as the Matua case
72 The scholarly response to Caroline Elkins’ Pulitzer-prize-winning work on the Kenyan Emergency is a case in point. See Elkins, ‘Alchemy of Evidence’ (n 30); Marc Parry, ‘A Historian’s Day in Court’ (Chronicle of Higher Education 62/38 (2016) <https://www.chronicle.com/article/A-Historians-Day-in-Court/236656> accessed 22 May 2020); Susan Carruthers, ‘Being Beastly to Mau Mau’, Twentieth Century British History 16/ 4 (2005), 489–96; and Bethwell Ogot, ‘Britain’s Gulag’, Journal of African History 46/3 (2005), 493–505.
73 Duncan Bell, ‘A Roundtable on John Darwin’s The Empire Project: Comment: Desolation Goes before Us’, Journal of British Studies 54/4 (2015), 994, cited in Wagner, ‘Savage Warfare’ (n 22) 218. Darwin is not alone, however, in regarding violence as banal. As Hannah Arendt has argued, it is precisely the sheer ubiquity and banality of violence that has led historians to neglect studying it, since it is difficult to question what appears to be obvious. Hannah Arendt, On Violence (New York: Harcourt 1970), 9.
74 Wagner, ‘Savage Warfare’ (n 22) 220. See, for example, John A. Nagl, Learning To Eat Soup With a Knife: Counterinsurgency Lessons from Malaya and Vietnam (Chicago: University of Chicago Press 2005); Ian Beckett, ‘Another British Way in Warfare: Charles Callwell and Small Wars’, in Ian Beckett (ed.), Victorians at War: New Perspectives (Chippenham, Wilts: The Society for Army Historical Research 2007), 89–102; and Thomas R. Mockaitis, ‘The Minimum Force Debate: Contemporary Sensibilities Meet Imperial Practice’, Small Wars & Insurgencies 23/4–5 (2012), 762–80.
75 Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (New Delhi: Cambridge University Press 2010), 8 (hereafter Kolsky, Colonial Justice). In the case of colonial India, Kama Maclean and Benjamin Zachariah suggest that the lack of emphasis on the violent nature of colonialism until relatively recently is a product of the dominance of British historiography in the study of South Asia, which concentrated on issues such as liberalism and colonial rule, as well as an over-reliance on the administrative records produced by the colonial state, from which state violence is largely elided. Similar problems have beset the study of other colonial contexts. Kama Maclean and Benjamin Zachariah, ‘Violence, Non-Violence, the State and the Nation: India, 1858-1958’, in Louise Edwards, Nigel Penn, and Jay Winter (eds), The Cambridge World History of Violence, Vol. IV (Cambridge: Cambridge University Press 2020), 69.
76 Kim Wagner, Amritsar 1919: An Empire of Fear and The Making of a Massacre (New Haven and London: Yale University Press 2019), xviii (hereafter Wagner, Amritsar 1919). In the case of the Amritsar Massacre, such a view helps to explain the repeated calls for the British government to apologize for it, as though that would wipe the ‘balance-sheet’ clean (ibid).
77 Much of the scholarship on decolonization also evades addressing the violence that accompanied it. For exceptions see, for example, Elkins, Imperial Reckoning (n 21); David Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya (New York: W. W. Norton 2005) (hereafter Anderson, Histories of the Hanged); and Bennett, Fighting the Mau Mau (n 21).
78 Christopher Herbert, War of No Pity: The Indian Mutiny and Victorian Trauma (Princeton and Oxford: Princeton University Press 2009), 5 (hereafter Herbert, War of No Pity). Denial, as Catherine Hall and Daniel Pick note, drawing upon the Oxford English Dictionary, is ‘an unconscious mechanism used to
demonstrates, entire societies can slide into forms of collective denial—of, for example, forms of cruelty, discrimination, or exclusion which are well known but never openly acknowledged.79 Such disavowal can, however, be shattered, as it was for the British in the face of the shock they experienced at the ‘reign of terror’ perpetrated against Indians by British troops during the Revolt of 1857–1858 (referred to in imperial historiography as a ‘mutiny’), or what one commentator regarded as ‘a war of extermination . . . in which pity was unknown’.80 According to Christopher Herbert, it was the realization that a ‘strain of genocidal cruelty’ was inherent in Britain’s ‘humanitarian Christian virtue’ that led to the generation of profound psychological trauma in British society.81 For those not so enlightened, denial renders its members what Michael Rothberg refers to as ‘implicated subjects’, whose actions, while neither those of victim, perpetrator, nor bystander, help to produce and perpetuate the legacies of imperial and colonial violence and sustain the configurations of inequality that shape the present.82
This is not to suggest that the violence of empire has been completely expunged from historical memory in Britain. The evidence, particularly during moments of crisis, is simply too extensive to enable such forgetting. But as the Matua case reveals, rather than being forgotten, such violence is instead repeatedly ‘rediscovered’, its visibility, like that of empire itself, ‘a political artefact that has waxed and waned’.83 What is at stake when it comes to empire, Ann Stoler argues, is ‘a dismembering, a difficulty
reduce anxiety by denying thoughts, feelings, or facts that are consciously intolerable’. For Hall and Pick, ‘disavowal’ might be a more helpful term to employ in such a context since it embodies notions of turning a ‘blind eye’, or the refutation of something that is right in front of us because it is too disturbing to acknowledge, which entails both knowing and not knowing at the same time. Such ‘blindsight’, or ‘wilful amnesia’, according to Linda Colley, is also a product of ignorance and introversion. Catherine Hall and Daniel Pick, ‘Thinking about Denial,’ History Workshop Journal 84 (2017), 10, 11; Price, ‘The Psychology of Colonial Violence’ (n 52) 36; and Linda Colley, ‘Introduction: Some Difficulties of Empire: Past, Present and Future’, Common Knowledge 11/2 (2005), 208. See also Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton, N.J.: Princeton University Press 2009), 237–78 (hereafter Stoler, Along the Archival Grain).
79 Cohen, States of Denial (n 37) 10–11.
80 John William Kaye, A History of the Sepoy War in India, 1857-58, Vol. 1 (London: W. H. Allen 1877), 170; and Vivian Dering Majendie, Up Among the Pandies; Or, A Year’s Service in India (London: Routledge, Warne and Routledge 1859), 196, cited in Herbert, War of No Pity (n 78) 9, 175.
81 Herbert, War of No Pity (n 78) 55. See also Joanna de Groot, ‘Depicting Conflict in India in 18578: The Instabilities of Gender, Violence, and Colonialism’, Cultural and Social History 14/4 (2017), 472–3. The revolt thus revealed the reality of what Albert Memmi calls the ‘Nero’ complex, according to which the colonizers, unable to deal with the realization that they are oppressors instead of the benign civilizers they believe themselves to be, respond with growing contempt for their victims, which is manifested through an irrational desire to exterminate the subject population and an increasingly authoritarian and repressive system of rule. For Zahid Chaudhary it is the alienation of the colonizers induced by such a process, to both their own pain and that of the other, that makes such violence possible. Albert Memmi, The Colonizer and the Colonized (first published in 1957, Boston: Beacon Press 1965); Herbert, War of No Pity (n 78) 74, 80; and Zahid Chaudhary, ‘Phantasmagoric Aesthetics: Colonial Violence and the Management of Perception’, Cultural Critique 59 (2005), 107 (hereafter Chaudhary, ‘Phantasmagoric Aesthetics’).
82 Michael Rothberg, The Implicated Subject: Beyond Victims and Perpetrators (Stanford: Stanford University Press 2019), 1. Not all members of a society are, of course, implicated in the same ways, or to the same degrees. For Rothberg ‘[t]he point of introducing the ‘implicated subject’ is to draw attention to ambiguous spaces that do not fit neatly into our scripts for explaining violence and injustice’; it is thus ‘an umbrella term that gathers a range of subject positions’. (Ibid f. 7, 13).
83 Angela Woollacott, ‘Making Empire Visible or Making Colonialism Visible? The Struggle for the British Imperial Past’, British Scholar 1/2 (2009), 163. Ann Laura Stoler makes a similar argument regarding the ‘discovery’ of colonial violence in France. Forgetting, Stoler notes, ‘is an achieved state’. Part
speaking, a difficulty generating a vocabulary that associates appropriate words and concepts with appropriate things’.84 The violence of empire is rediscovered, according to Stoler, when it is deemed safe for public consumption and scholarly investigation; the spurt of publications ‘disclosing’ the French use of torture against Algerians in the Algerian War of Independence since the turn of the twenty-first century, she argues, may now be deemed ‘safe’ because such works offer redemption to those willing to speak (as well as listen to) what had long remained unspoken while leaving unquestioned the systematic violence that is inherent to the ‘normal’ operation of colonial regimes.85
Stoler’s suggestion that colonial violence is rediscovered when it is ‘safe’ to do so raises interesting questions about the growing body of scholarship that has emerged since the onset of the ‘war on terror’ in 2001 that seeks not only to reassess claims that the British Empire was not a ‘violent concern’ but to examine the connections between Britain’s (post)-imperial present and its imperial past.86 The wide range of issues such scholarship has tackled include: the dynamics of colonial violence;87 sovereignty and state violence;88 emergency/decolonizing/’counterinsurgency’ violence89; massacre;90
of the challenge in articulating the violence of empire, I would argue, is what Pierre Bourdieu and Loïc Wacquant refer to as ‘misrecognition’, namely ‘the fact of recognizing a violence which is wielded precisely inasmuch as one does not perceive it as such’. Stoler, ‘Colonial Aphasia’ (n 64) 123, 141; and Pierre Bourdieu and Loïc Wacquant, ‘Symbolic Violence’, in Nancy Scheper-Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell, 2006) 272 (hereafter Bourdieu and Wacquant, ‘Symbolic Violence’).
84 Stoler, ‘Colonial Aphasia’ (n 64) 125.
85 Ibid, 144. See also Robert Aldrich, ‘Colonial Past, Post-colonial Present: History Wars French-style’, History Australia 3 (2006), 14.1–14.10.
86 Howe, ‘Colonising and Exterminating? (n 69)’; and Huw Bennet, ‘Soldiers in the Court Room: The British Army’s Part in the Kenya Emergency under the Legal Spotlight’, The Journal of Imperial and Commonwealth History 39/5 (2011), 727. As to whether we can refer to a post-imperial present see Hardt and Negri, Empire (n 38)
87 Mbembe, ‘Necropolitics’ (n 58); Gavin Rand, ‘ “Martial Races” and “Imperial Subjects”: Violence and Governance in Colonial India, 1857-1914’, European Review of History 13/1 (2006), 1–20; Joch McCulloch, ‘Empire and Violence, 1900-1939’, in Philippa Levine (ed.), Gender and Empire (Oxford: Oxford University Press 2007), 220–39; Peter Iadicola, ‘The Violence of Empire,’ International Journal of Contemporary Sociology 46/2 (2009), 185–212; and Phillip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018).
88 Subrata Bobby Banerjee, ‘Live and Let Die: Colonial Sovereignties and the Death Worlds of Necrocapitalism’, Borderlands 5/1 (2006) <http://www.borderlands.net.au/vol5no1_2006/banerjee_live. htm> accessed 17 May 2020; Taylor C. Sherman, State Violence and Punishment in India (London and New York: Routledge 2010) (hereafter Sherman, State Violence); Deana Heath, ‘Bureaucracy, Power and Violence in Colonial India’, in Peter Crooks and Tim Parsons (ed.), Empires and Bureaucracy from Late Antiquity to the Modern World (Cambridge: Cambridge University Press, 2016), 364–90 (hereafter Heath, ‘Bureaucracy, Power and Violence’); and Condos, The Insecurity State (n 38).
89 Elkins, Imperial Reckoning (n 21); Anderson, Histories of the Hanged (n 77); Bennett, Fighting the Mau Mau (n 21); Matthew Hughes, ‘The Banality of Brutality: British Armed Forces and the Repression of the Arab Revolt in Palestine, 1936-39’, English Historical Review CXXIV, 507 (2009), 313–54; and Wagner, ‘Savage Warfare’ (n 22).
90 Lyndall Ryan, ‘Massacre in the Black War in Tasmania 1823-34: A Case Study of the Meander River Region, June 1827’, Journal of Genocide Research 10/4 (2008), 479–99; and ‘Settler Massacre on the Australian Colonial Frontier 1836–1851’, in Philip Dwyer and Lyndall Ryan (eds), Theatres of Violence: Massacre, Mass Killing and Atrocity Throughout History (New York: Berghahn Books 2012), 94–109; Doyle, ‘Massacre by the Book’ (n 26); Robert McLain, Gender and Violence in British India: The Road to Amritsar 1914-1919 (Palgrave Macmillan 2014); and Wagner, Amritsar 1919 (n 76)
genocide;91 frontier violence;92 settler violence;93 the violence of colonial law;94 the violence of colonial policing;95 the violence of colonial prisons;96 convicts, transportation, and indentured labour;97 camps;98 ‘white’ violence99;
91 G. Jan Colijn, ‘Carnage Before Our Time: Nineteenth-Century Colonial Genocide’, Journal of Genocide Research 5/4 (2003), 617–25; Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (New York: Cambridge University Press 2004); A. Dirk Moses, Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (New York: Berghahn Books 2005); A. Dirk Moses and Dan Stone, Colonialism and Genocide (London and New York: Routledge 2007); Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New Haven: Yale University Press 2007); A. Dirk Moses (ed.), Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (New York: Berghahn Books 2009); Jürgen Zimmerer and Dominik J. Schaller (eds), Settlers Imperialism Genocide (London: Routledge 2009); Tom Lawson, The Last Man: A British Genocide in Tasmania (New York: I.B. Taurus 2014); and Damien Short, Redefining Genocide: Settler Colonialism, Social Death and Ecocide (London: Zed Books 2016).
92 Julie Evans, ‘Where Lawlessness is Law: The Settler-Colonial Frontier as a Legal Space of Violence’, Australian Feminist Law Journal 30/1 (2009), 3–22 (hereafter Evans, ‘Where Lawlesness is Law’); Penelope Edmonds, ‘The Intimate, Urbanising Frontier: “Native Camps”, Gender Relations and Settler Colonialism’s Violent Array of Spaces Around Early Melbourne’, in Tracey Banivanua-Mar and Penelope Edmonds (ed.), Making Settler Colonial Space: Perspectives on Race, Place and Identity (Basingstoke: Palgrave UK 2010), 129–54; Timothy Bottoms, Conspiracy of Silence: Queensland’s Frontier Killing-Time (Crows Nest, NSW: Allen & Unwin 2013); Nicholas Clements, The Black War: Fear, Sex and Resistance in Tasmania (St Lucia: University of Queensland Press 2014); Kolsky, ‘The Colonial Rule of Law’ (n 62) 1218–46.
93 Elizabeth Elbourne, ‘The Sin of the Settler: The 1835–36 Select Committee on Aborigines and Debates Over Virtue and Conquest in the Early Nineteenth Century British White Settler Empire’, Journal of Colonialism and Colonial Studies 4/3 (2003) [DOI: 10.1353/cch.2004.0003]; Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’, Journal of Genocide Research, 8/4 (2006), 387–409; and Henry Reynolds, Forgotten Wars (Sydney, N.S.W.: NewSouth Publishing 2013).
94 Hussain, The Jurisprudence of Emergency (n 58); Rande W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press 2005) (hereafter Kostal, A Jurisprudence of Power); Ranabir Samaddar, ‘Colonial State, Terror and Law’ (n 57); Ranabir Samaddar, ‘Law and Terror in the Age of Colonial Constitution Making’, Diogenes 212 (2006), 18–33 (hereafter Samaddar, ‘Law and Terror’); Ranjan Chakrabarti, Terror, Crime and Punishment: Order and Disorder in Early Colonial Bengal 1800-1860 (Kolkata: Reader’s Service, 2009); Esmeir, Juridical Humanity (n 36); Mark Condos, ‘License to Kill: The Murderous Outrages Act and the Rule of Law in Colonial India, 1867-1925’, Modern Asian Studies 50/2 (2016), 479–17 (hereafter Condos, ‘License to Kill’); Reynolds, Empire (n 15); and Lyndall Ryan, ‘Martial Law in the British Empire’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 93–109.
95 Martin Thomas, Violence and Colonial Order: Police, Workers and Protest in the European Colonial Empires, 1918-1940 (Cambridge: Cambridge University Press 2012) (hereafter Thomas, Violence and Colonial Order); and Radha Kumar, ‘Seeing Like a Policeman: Everyday Violence in British India, c. 19001950’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 131–49 (hereafter Kumar, ‘Seeing Like a Policeman’).
96 Satadru Sen, Disciplining Punishment: Colonialism and Convict Society in the Andaman Islands (New Delhi: Oxford University Press 2000); Florence Bernault (ed.) A History of Prison and Confinement in Africa (Portsmouth, NH: Heinemann 2003); Diana Paton, No Bond but the Law: Punishment, Race and Gender in Jamaican State Formation, 1780-1870 (Durham: Duke University Press 2004); Clare Anderson, The Indian Uprising of 1857-8: Prisons, Prisoners and Rebellion (London: Anthem Press 2007); and Frank Dikötter and Ian Brown (eds), Cultures of Confinement: A History of the Prison in Africa, Asia and Latin America (London: Hurst & Company 2007).
97 Clare Anderson, Convicts in the Indian Ocean: Transportation from South Asia to Mauritius, 18151853 (Houndmills: Macmillan 2000); Alice Bullard, Exile to Paradise: Savagery and Civilisation in Paris and the South Pacific, 1790-1900 (Stanford: Stanford University Press 2000); Stephen A. Toth, Beyond Papillon: the French Overseas Penal Colonies, 1854-1952 (Lincoln: University of Nebraska Press 2006); and Tracey Banivanua-Mar, Violence and Colonial Dialogue: The Australian-Pacific Indentured Labor Trade (Honolulu: University of Hawaii Press 2007).
98 Jonas Kreienbaum, ‘Deadly Learning? Concentration Camps in Colonial Wars Around 1900’, in Volker Barth and Roland Cvetkovski (eds), Imperial Co-operation and Transfer, 1870-1930 (London: Bloomsbury, 2015), 219–35; Aidan Forth, Barbed-Wire Imperialism: Britain’s Empire of Camps, 1876-1903 (Berkeley: University of California Press 2017); and Dan Stone, Concentration Camps: A Short History (Oxford: Oxford University Press 2017).
99 Kolsky, Colonial Justice (n 75); and Jordanna Bailkin, ‘The Boot and the Spleen: When Was Murder Possible in British India?’, Comparative Studies in Society and History 48/2 (2006), 462–93 (hereafter Bailkin, ‘The Boot and the Spleen’).
