Once upon a time a large injustice was done to a small number of people on a remote British island. They lived on Diego Garcia in British Indian Ocean Territory (BIOT). The atoll, together with the outer islands, is also known as the Chagos archipelago and contains one of the earth’s richest area of coral reefs. In the late 1960s the decision was made to send these British subjects into exile in Mauritius and the Seychelles Islands, so that the Labour government of Harold Wilson could hand over their island – unencumbered with people – to the United States as a military base.
In November 2000, the high court in London ruled that the ordinance under which the exile had been carried out was illegal (see here for the full judgment). That was accepted by the ("New") Labour government of Tony Blair. The then foreign secretary Robin Cook, referring to the local designation of the community involved (the Ilois) said:
"I have decided to accept the court’s ruling and the government will not be appealing. The work we are doing on the feasibility of resettling the Ilois now takes on a new importance. We started the feasibility work a year ago and are now well underway with phase two of the study.
Furthermore, we will put in place a new immigration ordinance which will allow the Ilois to return to the outer islands while observing our treaty obligations."
A record of chicanery
However, once Robin Cook was moved from the FCO and became leader of the House of Commons in June 2001, FCO officials plotted to set aside the high-court’s judgment. In 2004 a new BIOT order in council made it illegal for Chagossians to return home without prior permission. The resettlement feasibility study was discontinued. The Chagossians challenged this blatant ploy, hoping that the judiciary would be better at delivering justice than Her Majesty’s Government (HMG) at providing good governance of its overseas territories.
On 11 May 2006 Lord Justice Hooper delivered the high-court’s judgment. The full text is a chilling study of the chicanery used by an overweening executive to ignore inconvenient human rights. Here are three key passages:
· " the power of the Queen in Council to legislate for the Territory is limited by the United Kingdom’s obligation to respect the human rights of the Chagossian people, in particular their right to respect for private and family life and home, and the right to peaceful enjoyment of their possessions" (Paragraph 103 iv)
· "We do not agree that the interests of those who left the islands can so easily be ignored given the circumstances in which they left and given the fact that the 1971 Ordinance was quashed by a decision of the Divisional Court in 2000, a decision which was accepted by the government of the day" (paragraph 120)
· "The power to legislate for the "peace order and good government" of a territory has never been used to exile a whole population. The suggestion 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 this for the "peace, order and good government" of the Territory is, to us, repugnant" (paragraph 142).
Sadly, this repugnant treatment of the Chagossians was not an aberration. There are episodes in Britain’s history as an imperial (and decolonising) power in which the country’s citizens can take pride. But we are only entitled to do so if we come to terms with discreditable behaviour – towards colonial subjects, parliament and the British public.
Some historic injustices cannot be understood without reference to changing values. Think of how British settlers and their Australian descendents in Van Diemen’s Land dealt with the native Tasmanians; of slavery; and of the political rights of women. What is striking about the case of the Chagossians is that the injustices were committed by people prepared deliberately to lie and dissemble. Their actions might be easy to explain in terms of United Kingdom state interests, Realpolitik, and bureaucratic convenience; they are impossible to justify in terms of the contemporary values to which the UK subscribes – in 1971 as much as in 2004.
Ministers and officials now have a unique opportunity to correct (even if only partially) a shameful historic injustice. There are still Chagossian parents and children alive who were unjustly exiled from their homes. It is as if Australia were to discover in the forested depths of Tasmania survivors of the original population. To decent Australians, that would be seen as an opportunity to make amends, not to compound historic injustices.
As far as Her Majesty’s Government is concerned, the danger is that ministers and officials may still be in denial and disposed to appeal the damning high-court verdicts. It will tell us much about the new foreign and commonwealth office’s legal adviser, Daniel Bethlehem, what advice he gives the new secretary of state, Margaret Beckett. And it will tell us much about Britain’s current government if it is prepared to stand up for the values that really matter. If the UK wishes to see itself as an exporter of democracy and respecter of human rights, it needs to see itself "as others see us". Is this government prepared to respect the rights of the poor and the powerless in its own territories?
The next steps
What should now happen?
If the British government appeals the May 2006 judgment it will open itself to these charges:
· failure to recognise the original injustice in 1971, compounded in 2004
· cynical abuse of the courts simply to attempt by delay to wear down the resistance of the Chagossians. In future HMG may wish to argue (as it cannot now) that none of the Chagossian community now alive was born in BIOT (the Tasmanian parallel starts to look devilish at this point)
· wasting taxpayer’s money, which would be better spent on completing the resettlement feasibility study.
But even if HMG gives up after two thumping judgments against it in the courts, it is far more important that it demonstrates a genuine change of heart. Indeed, the behaviour by senior FCO officials during this saga shows that what is really needed is institutional repentance. There is "time for amendment of life", but that needs to be preceded by "pardon and remission of all our sins". Three steps are needed for that to be done, and a fourth would add powerful reinforcement.
First, there must be an open recognition of the injustices done to the Chagossians.
Second, there must be completion of the resettlement feasibility study on a new basis with terms of reference fully agreed with the wronged Chagossians. That will naturally need to face the real problems of a settlement in the outer islands that does not do unacceptable damage to the archipelago’s wonderful natural heritage. There would also be considerable logistic and other difficulties in establishing the infrastructure for even a modest degree of eco-tourism.
All this will require serious investment. However, HMG has already agreed to provide an expensive new international airport on the Atlantic island of St Helena (where no comparable injustices need to be righted) to encourage tourism. In any event, while controlling costs to the British taxpayer and making British Indian Ocean Territory as far as possible sustainable (drawing also on revenue from fisheries licences and philately, as at present), the guiding spirit of the study should be to restore to the Chagossians the past and the future stolen from them in 1971. It must not be treated as another opportunity to use bureaucratic wiles to deny the justice granted by the courts.
Third, there needs to be discussion with the Americans. The starting-point is provided by paragraph 104 of the high-court’s judgment:
"During the course of argument, Mr Howell [representing the FCO] submitted that subparagraph i.a. in the irrationality challenge was not "common ground". Whether common ground or not, it seems clear to us that the USA, having so far only required the use of Diego Garcia, does not have the right under the bilateral agreements to require the United Kingdom to enact the challenged Orders in so far as they relate to the other islands."
No doubt the Pentagon would prefer that the resettlement does not go ahead. However, FCO diplomats have a strong hand. The Americans understand that governments need to respect the decisions of their own courts. They know from their own records that the injustices to the Chagossians were done for their benefit and with their cooperation. The bilateral agreement gives them no right to object to resettlement in the outer islands, which are far enough away from Diego Garcia to provide no more threat to security than do the yachts and fishing vessels which regularly operate within BIOT waters.
But it would facilitate the resettlement if limited use of the airfield on Diego Garcia were allowed for civilian purposes (as is the case at the airfield on Ascension Island in the Atlantic). Alternatively, the Americans could be asked to provide alternative transport facilities (e.g. paying for the purchase of appropriate seaplanes). The ace in the UK’s negotiating hand is making such assistance to BIOT a condition of the renewal of the lease for Diego Garcia. The Americans know that would still be a good deal.
In addition to these three requirements, a fourth step could be taken that should appeal to a government aware of the importance of climate change. Surprisingly, the UK currently makes no contribution to global monitoring of atmospheric concentrations of CO2. A baseline research station in BIOT to monitor greenhouse-gas levels and provide satellite ground-truthing could become part of the United Nations’s Global Atmosphere Watch; it could also monitor changes in water temperature and composition.
This would enhance the UK’s international credibility as a leader on climate change. Furthermore, the station’s remote location and role would make it an attractive recipient for British and international funding and international participation. In turn this would help to secure some modest employment opportunities for the resettled Chagossians, thus reducing the net costs of the resettlement programme to the British government.
I end on a personal note. When I joined the FCO in 1968, the bilateral agreement with the Americans that was to drive the Chagossians out of their homes and homeland had already been signed. Along with many colleagues I gradually became aware of the injustice that had been done, with senior UK diplomats shaming our profession. The government’s acceptance of the high-court’s verdict in 2000 felt as if a burden of guilt by association was being lifted. That was premature. The injustices still need to be righted. Will this government be decent enough to do so?