A Dreadful Piece of British Colonial History Has A Chance To Be Corrected

Chagos Islanders May Soon Return Home

Location of Diego Garcia and the Chagos Archipelago

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When I spoke with Olivier Bancoult several years ago, I was genuinely perplexed by the question of how he could maintain a deeply personal connection to a homeland he barely knew?

Bancoult is Chagossian. This is a small archipelago in the middle of the Indian Ocean that is formally known as the British Indian Ocean Territory. At the age of four, Bancoult was forcibly deported from his home, along with thousands of others, as part of a deliberate campaign by the British government.

It was the early 1970s, and the UK government wanted to clear Chagos to make way for an American military base on one of the islands, Diego Garcia. So, Bancoult and thousands of others were deported to Mauritius, more than 2,000 kilometers away.

I still recall the anguish and longing in his voice when I asked if he is able to maintain Chagossian culture from exile? “I always tried to do what my parents taught me, like how to cook the traditional meal,” he told me. “We have a traditional meal cooked with coconut — fish with coconut, chicken with coconut. We go to a facility to prepare it once a month, just to give our children the opportunity to taste it.”

The forcible deportation of Chagos Islanders may be little known by the outside world, but it was a grave injustice and a crime against humanity. Now, 50 years later, there is renewed hope that this historic injustice will be remedied—and Chagossians like Olivier Bancoult may soon return home.

The famed human rights lawyer Philippe Sands has teamed up with Chagossians to right this historic wrong. Over the last several years he has secured victories in British courts and at the International Court of Justice in the Hague, which rejected the British government’s claim of sovereignty over Chagos in a landmark 2019 ruling. There are now ongoing negotiations with the British government over returning the islands the rightful heirs. Chagossians are tantalizingly close to returning home.

I spoke with Philippe Sands for an episode of the Global Dispatches podcast released today. The full episode is freely available across all podcast platforms. I found these exerpts particularly poignant.

Philippe Sands: One account [of a forcible deportation] is from Liseby Elyse who describes how at the end of April, on a single day, she saw something she'd never seen on her island before. There were about 400 people living there — and she saw a white man! The white man came up to her and said, "Madam, you will have to leave tomorrow and you're allowed to take one suitcase. The island is being closed." And that was the way in which it was done.

In fact, it started a little earlier on Diego Garcia. When people left Diego Garcia to go to Mauritius for medical treatment, they were not allowed to then come back. They were told there were no boats. And so that was step one. Step two was the removal of people from Diego Garcia to other islands. And step three was the removal of the entire population from all the other islands. Not a happy story.

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Mark Leon Goldberg: When did legal efforts to correct this historic injustice begin in earnest?

Philippe Sands: Well, they began in earnest in the seventies and in the eighties, and a number of Chagossians brought proceedings in the English courts. Olivier Bancoult led many of those cases and was partly successful. The cases are known in English legal parlance as “Bancoult 1,” “Bancoult 2,” “Bancoult 3,” and so on and so forth. In the end, he was not successful in getting what he really wanted, which was a right to return. But in reaching that point, he nevertheless was very successful in obtaining documents archives, and those would become critically important when the case moved to the international stage.

One of the things that is truly remarkable about Olivier Bancoult, I mean, I've worked with him for more than a decade, and at a certain point, quite recently, just a year or two ago, I said, "Olivier, where did you get your legal skills from? How did you find the knowledge? What where did you go to law school?" And he just looked at me and said, "Philippe, I'm not a lawyer. I'm an electrician!" And he is a really remarkable individual, self-taught in the law. And he's he's done remarkable things.

Mark Leon Goldberg: So you had proceedings in British courts that as you noted, yielded some positive results, but nothing close to the right to return. So what were the circumstances in which this case moved to the International Court of Justice?

Philippe Sands: Well, in fact, Olivier Bancoult had a major success in the early 2000s when he did get a judgment of an English court declaring they had a right to return. And then the events of September the 11th happened, and the British government under Tony Blair changed direction and overturned the ruling of the courts. And in part because the base at Diego Garcia achieved at the time even greater importance. (Ed note: it was from Diego Garcia where the “Shock and Awe” bombing campaign of Iraq in 2003 began).

The Mauritian government has long argued from the pulpit of the General Assembly and at the U.N. that they have sovereignty over the whole of the Chagos Archipelago. But they only invoked legal proceedings in 2010. I received a phone call in April of that year from the Prime Minister of Mauritius asking whether I would help to put together a legal team to bring proceedings to international courts against the United Kingdom, basically to devise a legal strategy.

It wasn't self-evident back then what we could achieve, but we identified a number of ways to begin what we knew was going to be a long process. And we started under the Law of the Sea Convention with the case in the autumn of 2010, basically a declaration that the British government's effort to create a vast Marine protected area was illegal because Mauritius hadn't been consulted. We won that case and it was declared the Marine protected area illegal. But it did not address the question of sovereignty over the Chagos Archipelago. So at the time, that matter remained open.

Philippe Sands: [In 2015, a new Prime Minister of Mauritius was elected.] “I am instructing you to go to the International Court of Justice in The Hague, the principal judicial organ of the United Nations. Get me there by hook or by crook,” [he said].

The only way we could get there was by way of an advisory opinion of the General Assembly. It would require Mauritius to persuade the General Assembly to send questions on sovereignty over the Chagos Archipelago to the International Court of Justice. And that meant taking on the British and the Americans directly. I mean, it was a real David and Goliath situation in which, you know, Mauritius, population 1 million, a small African country, was taking on two permanent members of the Security Council. So it was not evident that we would get through it.

But in very large part, I think Mauritius was assisted by a totally unexpected development in June 2016. That is to say Brexit. And what happened with Brexit was dramatic. I mean, Britain's international reputation fell off the cliff and it lost many of its allies. All the EU states said, “Hey, you've left the European Union, it's not our problem anymore. You're on your own.”

So by the time the matter came to the General Assembly in in June 2017, the Assembly voted overwhelmingly against the United Kingdom and sent an advisory opinion to the court, and that was it. By that point, Mauritius was up before the International Court of Justice, and the proceedings really then began.

Mark Leon Goldberg: And how did those proceedings unfold? What was the result?

Philippe Sands: Well, they unfolded fabulously well for Mauritius and catastrophically for Britain and the United States!

There were various rounds of written pleadings. Many countries intervened from across the world, mostly on the side of Mauritius and the African Union. This was one of the very first times the African Union voted as a bloc and participated as a bloc in the proceedings. The oral hearings were in September 2018. The most dramatic aspect of the hearings really was the participation of a single witness, Lisbey Elyse, who described to the judges what had happened to her and how she wished to return. Six months later, we went back to The Hague, the Great Hall of Justice, and got, in effect, a unanimous ruling by the International Court of Justice.

The court ordered the United Kingdom to leave the Chagos Archipelago forthwith. I do a lot of cases at the international court. It was as dramatic a day as I can remember in a 35 year career at the court.

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Philippe Sands goes on to explain the final negotiations that are underway between the governments of Britain and Mauritius to enact this ruling. The full episode is freely available here and well worth your time.

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