Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia (31 page)

With little support in Mauritius and great skepticism there and abroad about the chances of their suit, the CRG and its lawyers pressed on. To the shock of many, on November 3, 2000, the British High Court in London found for the Chagossians, ruling their expulsion illegal under U.K. law. Olivier walked out of the court with his hands outstretched above his head, making the sign of “V” for victory.
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On that day, Olivier recalled, “the Chagossian community won a victory, winning its right that had been deliberately scorned years before by British authorities, winning what was a great acknowledgment from a hugely important institution in England recognizing our—Chagossians’ rights.”

“When I went outside the court,” Olivier said, “I was making a ‘V.’ It was a ‘V’ for victory. It was a ‘V’—it was a day that for me, I say, David finally defeated Goliath. David, the people, the people succeeded over that great Goliath, that great power, the British Government.”

Almost immediately British Foreign Secretary Robin Cook, who as a backbencher had been one of the Chagossians’ few supporters in Parliament since the 1970s, announced that the government would not appeal the judgment. “This Government has not defended what was done or said thirty years ago,” Cook said. The government changed the laws of the BIOT to allow Chagossians to return to all of Chagos but continued the ban on a return to Diego Garcia. They also refused to assist with a return and resettlement, promising only to study its “feasibility.”

Lacking the money to visit Chagos on their own let alone to resettle and reconstruct their society, the CRG was forced to file a second suit against the Crown for compensation and the funds to finance a return and reconstruction.
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Journalist John Pilger asked Cook why he didn’t do more about an episode in British history that Cook had called “one of the most sordid and morally indefensible I have ever known.”

“It was never a political possibility to return them,” Cook explained. “The Americans were there, and they had an agreement with us.”

But, Pilger asked, why had he not just told the U.S. Government, “The highest court in our country has said a great injustice has been done and we have to give these people the opportunity to go home and reconstruct their lives”?

“Well, I did say that, more or less,” Cook replied.

“But you left out Diego Garcia?”

“Oh yes, because that was never achievable politically with the Americans.”

“That’s where it all stopped?” Pilger queried.

“Yes.”
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NEW SUITS AND NEW DISPUTES

Turning to the empire across the Atlantic, the CRG and islanders organized in the Seychelles enlisted Michael Tigar to file the class action lawsuit that marked my introduction to the story. They sued the U.S. Government, Defense Secretaries McNamara and Rumsfeld, Melvin Laird and James Schlesinger, Admirals Thomas Moorer and James Holloway III, State Department officials George Churchill and Eric Newsom, the major oil and construction multinational Halliburton Company (whose Brown & Root subsidiary helped build the base), and the Mauritian recruitment firm for Diego Garcia (and former Arthur Andersen affiliate) De Chazal du Mée.
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In addition to demanding the right to return and proper compensation, the U.S. suit asked for an immediate end to employment discrimination on the base. While the U.K. court victory meant that almost every Chagossian now supported the CRG, this last demand proved somewhat divisive within the community: Indeed, for decades there have been divisions in the community over the legitimacy of the base, although the issue has always remained secondary to near total support for the right of return and compensation.
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During the 1980–81 protests, Chagossians protested under the Rann Nu Diego slogan, which included the demand to close the base, and many still oppose the base on the grounds that it was the cause of their expulsion. Anthropologist Laura Jeffery quotes a Chagossian from
Diego Garcia saying, “I suffer because they took my country and made it into a base for war.” Others oppose the base because they believe it would endanger resettlement. “If America can bomb Iraq from Diego Garcia,” a second-generation Chagossian told Jeffery, “then Iraq could bomb Diego Garcia.”
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Some are more tolerant or even supportive of the base. Despite the CRG’s opposition to the war in Iraq, the group’s position is, according to Olivier, “We have no problem with the military base on Diego Garcia.”
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Chagossian feelings about the base must be understood within the context of their struggle to return and gain compensation. Many (mostly men) have been interested in working on the base—and thus finding one way to return to their homeland—since the base began employing non-U.S. or U.K. support personnel. Others see the base as essential to any resettlement effort, both as a source of employment and, given the only runways in the archipelago, as a regular air link with the outside world.

The intricacies of U.S. law have also played a role in shaping Chagossians’ feelings about the base. Because U.S. law broadly prohibits suits against the U.S. Government that challenge the foreign policymaking power of the U.S. executive and legislative branches, the CRG and its lawyers have had to distance themselves from any positions appearing to oppose the legitimacy of the base. Instead, they have made clear that they are only challenging the legality of the removals. The leftist Mauritian party
Lalit de Klas
(Class Struggle) has described a resulting “chorus” from Chagossians having to repeat “again and again” that they are “
not
against the military base.”
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CITIZENSHIP AND DEFEAT

As they waited for the result of their U.K. compensation suit, the islanders won a new victory in 2002, when most gained the right to full U.K. citizenship and passports. The background behind the triumph dated to 1968. At the time, Chagossians had been given Mauritian citizenship as part of the nation’s independence agreement with Britain. But as British officials soon realized, any children born in the BIOT after Mauritian independence had “exclusive attachment” to the BIOT and “could not be disguised as Mauritians.”
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Putting the matter of the children aside, there was already a sizable population with both Mauritian and U.K. citizenship by virtue of their birth in a British colony. To avoid the possibility that Mauritius would resist resettling people who were in fact British citizens,
U.K. officials conspired to hide this fact from the Mauritian Government and the Chagossians. In the 1980s, the islanders realized the deception and began claiming BIOT citizenship, giving them the right to a British Dependent Territory (i.e., colonial) passport, although not residential rights in Britain (nor of course in the BIOT).

In May 2002, the British Government was in the process of changing its citizenship laws to extend full citizenship and passports to citizens of its few remaining colonies, newly renamed the U.K. Overseas Territories (Bermuda, the Falkland Islands, and Montserrat among them). Initially the government had not intended to include Chagossians in the law. With the help of a few parliamentary supporters, however, a special clause incorporated the people into the British Overseas Territories Act of 2002, on the grounds that their current residency outside a British territory was the result of their involuntary removal by the U.K. Government.
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The change made most native-born Chagossians and their first-generation offspring, along with other citizens, eligible for the same citizenship as British nationals, including residential rights in Britain.
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In recent years more than 1,000 Chagossians, mostly from the second generation, have left Mauritius and the Seychelles in search of work and better lives in England,
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where they have met with mixed success. In July 2003, around thirty arrived with little or no money and what they believed were promises of work. The group soon found themselves stranded and homeless, sleeping for more than a week on the floors of London’s Gatwick Airport. Others have launched suits claiming the same social service benefits due other British citizens. So far the courts have rejected the claims on the grounds that the islanders have not met residency requirements in Britain. In 2007, a group staged a five-month sit-in on government property, only to have a judge force them off the land. While some have returned to Mauritius or the Seychelles, many in England have eventually found housing and low-wage service sector jobs, mostly in working-class cities and towns surrounding London. Some now have janitorial and other service jobs at Gatwick.

In late 2003, a year after they won citizenship, the tide of victories turned. In October, the British High Court denied the islanders’ claim for compensation. Though the judge in the case admitted that Chagossians had been “treated shamefully by successive UK governments,” he found against them on every major issue, ruling that there was no arguable tort of unlawful exile, that the statute of limitations had run out, and that officials had not been reckless in carrying out the removal, despite its unlawfulness. An appeal was similarly rejected.
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A year later, in December 2004, the Federal District Court for the District of Columbia dismissed the U.S. suit. Judge Ricardo Urbina found no wrongdoing on the part of the government, its officials, or contractors for what he described as the “improper misplacement of the plaintiffs.”
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Ultimately the suit failed to overcome two major legal hurdles: first, the “political question” doctrine, which gives near total authority over matters of foreign and military policy to the executive and legislative branches; and second, the “Westfall Act,” which provides “practically impenetrable” immunity to government employees for any “negligent or wrongful act or omission,” as long as they are acting within the scope of their employment—which the Attorney General certified the defendants had.
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Far from the defeat being the result of the particular interpretation of a judge or conservative judicial activism, the case demonstrates how, as legal scholar Christian Nauvel says, “the deck is (almost impossibly) stacked against foreign parties wishing to obtain relief against either the U.S. or its employees.”
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An appeals court upheld the initial ruling in 2006, and in early 2007, the U.S. Supreme Court denied a petition for further appeal.

Undeterred, Chagossians filed suit against the U.K. Government in the European Court of Human Rights. They charged violations of their rights on grounds that the European Convention on Human Rights prohibits forced displacement, that international treaties like the UN Charter prohibit Britain from violating the right to self-determination, and that common law prohibits Britain from violating people’s fundamental rights.

Before receiving a European hearing, the British Government made a stunning announcement. In the name of Her Majesty the Queen, the British Government again enacted two Orders in Council (another had created the BIOT in 1965) barring any Chagossian from returning to Chagos. Again the Queen rubber-stamped the decision of her ministers, which officials announced on June 10, 2004, a busy election day in Britain, “tucked away on a list of innocuous royal decrees between an amendment to the Royal Charter of Optometrists and the appointment of four of Her Majesty’s education inspectors for Scotland.” Pilger describes how it happened: “A Privy Councillor simply read out the fate of thousands of Her Majesty’s most vulnerable, abused and wronged subjects and, in that curious high-pitched voice, she said, ‘Agreed!’”
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In effect, without parliamentary debate or consultation, the British Government used the archaic power of royal decree to overturn the November 2000 High Court victory and Chagossians’ briefly held right of return.

There are signs that the Orders were the result of “intense U.S. pressure.”
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A RETURN?

Despite the setbacks in the U.S. and U.K. suits and the issuing of the Orders in Council reinstating their exile, the Chagossians continued their legal and political struggle, building international attention and support. In December 2005, they returned to the High Court with Richard Gifford and Nelson Mandela’s lawyer Sir Sydney Kentridge to challenge the Queen’s decree.

While they waited for a ruling, CRG leaders convinced the British Government to accede to a decades-old request to allow a contingent to visit Chagos to care for and pay respects to their ancestors’ graves.
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On March 30, 2006, after numerous postponements and repeated negotiations, British authorities finally let around one hundred Chagossians travel to Chagos for a ten-day “humanitarian” voyage to visit each of their islands (though not to stay overnight) and to tend to the cemeteries. The trip was widely seen as a concession by the U.K. Government and generated widespread international media coverage.

Upon arriving back in Mauritius, Olivier, CRG’s vice president Aurélie Talate, and a few others rushed to London to hear the ruling in their case challenging the Orders in Council. For the second time, the High Court of Justice ruled their expulsion illegal. The Orders in Council were overturned.

“The suggestion,” two judges wrote, “that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing so for the ‘peace, order and good government’ of the territory is, to us, repugnant.”
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