In 1814, Mauritius and the Chagos were ceded to the British under the Treaty of Paris. Under the British rule, more concessions were granted. By that time, the islands had developed a successful copra industry. At all material times prior to 1962, the Mauritian company Diego Garcia Limited was the owner of various islands in the Indian Ocean, including the Chagos Archipelago.
In 1962, a company known as Chagos Agalega Limited was incorporated in the Seychelles to acquire the assets of the Mauritian company Diego Garcia Limited which at that time owned the islands of the Chagos Archipelago.
In 1964, discussions had started between the Governments of the United States of America and the United Kingdom over the possible establishment of American defence facilities in the Chagos Islands. From an early stage, these governments had decided that once islands had been chosen for this purpose, the transfer or resettlement of those on the islands would be necessary. The U.S. Government proposed that the islands chosen should be detached from Mauritius and the Seychelles and be formed into another, separate dependent territory. By this means the U.S. Government could be confident that the use of its new facilities would not depend on the goodwill and stability of Mauritius and/or Seychelles, whose independence was in prospect at that time.
On 8th November 1965 the British Indian Ocean Territory (BIOT) Order in Council (SI 1965/120) established a new colony, which included the Chagos Islands and other islands formerly part of the Colony of Mauritius and Seychelles.
On or about 3rd April 1967, the United Kingdom acquired the islands on a freehold basis from Chagos. On or about 18th April 1967, the United Kingdom leased the islands back to Chagos Agalega Limited. In the course of the year 1968, a Management Agreement was signed between the United Kingdom and Moulinie & Co, a Seychelles company, whereby the latter company was asked to manage the islands on behalf of the Crown. This management lasted a couple years.
Throughout internal discussions about resettlement options for the Chagossians, memoranda from this period show that the U.K. Government was fully aware that it proposed to expel native islanders from their homeland, and insofar as they considered the legal rights of the islanders, showed determination to override such legal rights. In 1965, the Queen enacted the BIOT Order, empowering the Commissioner to ‘make laws for the peace, order and good governance of the territory’. Using the powers vested upon him, under Section 11 of the BIOT Order of 1965, the Commissioner enacted BIOT Ordinance of 1971. Section 4 of the 1971 Ordinance provided for the compulsory removal of all the inhabitants.
The British Government started to forcefully remove the indigenous population out of the islands in order to allow the US Government set up and operate its naval military base on Diego Garcia. That the US Government required only one-third of Diego Garcia is a fact that has been recorded; why it insisted on totally depopulating the archipelagos is another thing and is yet to be understood.
The other islands are more than 200 miles away from the base and are not occupied by the military except as resort islands for the military personnel during their time off. That the outer islands were depopulated and ethnically cleansed in order for the US military personnel to enjoy them during their time-off is, to this date, the only explanation that makes sense, except to the Chagos Islanders.
Some 2,000 Chagossians were illegally removed from the Chagos Islands and shipped to Mauritius and Seychelles in conditions which amount to inhuman and degrading treatment. The islanders were removed unwillingly and without consultation.
There were campaigns of threats conducted by the U.K. and U.S. military officers in order to scare the population. This included the flying of military aircrafts at unusually low altitude causing the Chagossians to go into states of panic. The domestic animals were killed; it started with an attempt to food poison the dog population which proved unsuccessful. The military personnel then decided to capture all dogs on all the islands and brought them into a wide hangar for them to be gas chambered, causing thousands of dogs to be killed. Such actions had a psychological effect on the Chagossians, especially the younger ones who, until today, still have vivid recollection of those traumas. By 1973, the Chagos Archipelago had all its permanent inhabitants completely banished.
The conditions on the ships transporting them were appalling. They were effectively dumped on the quayside in Mauritius or Seychelles, with no one to receive them and with no provision for their housing or employment.
In 1998, the Chagos Islanders retained the services of Mauritian Attorney Sivakumaren Mardemootoo and of UK Solicitor Richard Gifford from Clifford Chance LLP. The Chagossians were advised that they challenge the legality of the British Indian Ocean Territory Immigration Ordinance of 1968 which expels the indigenous population out of the islands. The lawyers were then instructed to apply for a review of that Ordinance on several grounds, including the argument that it surely could not be lawful to remove an indigenous population from its homeland and that the removal was therefore against the principle of ‘peace, order and good government’ which governs the principle of colonial administration at that time
After years of poverty, unemployment and struggle for the Chagossians who had been “discarded” on the foreign shores of Mauritius and Seychelles, proceedings were brought by way of judicial review in the High Court in England in August 1998 by a Chagossian man named Olivier Bancoult. This year marked the beginning of a long battle between the Chagossians and the U.K. Government; a battle which is still ongoing and will not cease until justice is done.
In the judicial review proceedings, the validity of the 1971 BIOT Immigration Ordinance was challenged and on the 3rd November 2000 the Divisional Court (Laws L.J., Gibbs J.) held that Section 4 of the Immigration Ordinance was ultra vires the BIOT Constitution. No power to award damages or compensation arose by reason of this unlawful administrative act, and the Divisional Court declined or had no power to award any restitutionary remedy. It was publicly announced by the then Foreign Secretary, Robin Cook, on the 3rd November 2000 that: “I have decided to accept the Court’s ruling and the Government will not be appealing”.
In 2003, the military base in Diego Garcia was used by the US for ‘Operation Iraqi Freedom’, the legality of which remains highly questionable.
Despite a strong statement by the Foreign Secretary on 10th June 2004 the U.K. Government passed into law the British Indian Ocean Territory (Constitution) Order 2004 and the BIOT (Immigration) Order 2004. These are Orders in Council under the Crown’s prerogative powers and have not been subject to Parliamentary scrutiny. By declaring that no person has the right of abode in the territory, or the right to enter it except as authorized, these Orders purport to abrogate existing rights to live in the territory which the Chagossians possess.
Additionally, in June 2004, the Government issued a statement announcing the abandonment of the Feasibility Studies which had provided a favourable report on the feasibility of returning the population but included some general comments about the possibility of difficulties for a resettled population which had not been based on any scientific study. No attempt had been made to identify costs and benefits of resettlement, and no attempt had been made to identify partnership funding from public or private sources.
In 2004, the United States reiterated the aforementioned concerns and emphasized that these have become more serious since September 11, 2001. Again, the United States, maintained that the resettlement would severely compromise the military base on Diego Garcia. The United States approved the measures adopted by the Majesty in 2004 in preventing any attempt of resettlement.
This provoked a further challenge by Mr. Bancoult (Bancoult (2)) in 2006 where the UK Divisional Court (Hooper LJ, Cresswell J) held the Orders to be irrational. In the Court of Appeal (Clarke, Waller and Sedley LJJ), the Orders were unanimously held to be a breach of a legitimate expectation created by the Foreign Secretary, and Sedley LJ held them to be an abuse of power. Criticism of the policy of exile became increasingly strident ("repugnant" – Hooper LJ, "affecting one of the most fundamental liberties known to man” – Sedley LJ).
In 2008, the United States admitted that to the use of renditions flights. David Miliband the then former Foreign Secretary of the UK confessed that answers given by him in Parliament denying the use of rendition flights were untrue and misleading. Lord Hoffman in the House of Lords stated that, ‘On the 21February 2008 the Foreign Secretary told the House of Commons that, contrary to previous assurances, Diego Garcia has been used as a base for two extraordinary rendition flights in 2002[...] There are allegations which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. ‘
In 2008, the UK Secretary of State appealed to the House of Lords on the question on the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004.
The House of Lords basically held that this was a matter of foreign policy and the judiciary should not interfere.
Lord Bingham in 2009 in Bancoult (2) [UK Court] succinctly stated that, ‘[D]espite highly imaginative letters written by American officials to strengthen the Secretary of State’s hand in this litigation, there was no credible reason to apprehend that the security situation had changed. It was not said that the criminal conspiracy headed by Osama Bin Laden was, or was planning, to be active in the middle of the Indian Ocean.’
On the 1st April 2010, U.K. Foreign Secretary David Miliband announced the creation of a Marine Protected Area (“MPA”) in the British Indian Ocean Territory (“BIOT”). This will include a “no-take” marine reserve where commercial fishing will be banned. It was based upon the continued prohibition on the population returning to its homeland, around which the MPA would be designed. Although Mr. Miliband stated that he had “taken the decision to create this marine reserve following a full consultation and careful consideration of the many issues and interests involved”, it is clear that no consideration was given to the interests of the Chagossians, the consultation document expressly excluding their claims to return, and the Facilitator's report having scant regard to their evidence. Members of the Chagos Refugees Group in Mauritius and the Chagos Social Committee (Seychelles) are angered and frustrated by the inadequate opportunity given to them to participate in the consultation process and having their rights yet again ignored.
In 2010, a diplomatic cable published by WikiLeaks, from the FCO to the US State Department stipulated that, “establishing a marine park, would in effect put paid to resettlement claims of the Archipelago former residents.”
In 2011, according to the Libyan Intelligence Ministry, documents revealed that the MI6 in collaboration with the CIA utilized Diego Garcia to stage post illegal rendition to Tripoli. Furthermore, allegations of torture supported by evidence at the Guantanamo trials, especially ‘water boarding’, in Diego Garcia have been widely reported. Shamefully, according to documents disclosed during the Belhadj case, it is conspicuous that the US and the UK jointly committed acts of torture and therefore incur both should incur responsibility.