United States

Although there is a general assumption that the focus insofar as litigation is concerned has been principally on the UK as the latter bears the primary responsibility regarding the deportation, we believe a clarification is needed. The CRG has explored the litigation route in both the United Kingdom and the United States.

Indeed, regarding the United States, on December 20, 2001, a group of Chagossians filed a civil suit seeking compensatory and punitive damages, as well as declaratory and injunctive relief, including the right to return to their homeland. This case involved claims made by the indigenous population of the Chagos Archipelago and their descendants against the United States of America, De Chazal DuMée & Co.(“DCDM”), various current and former officials of the Departments of State and Defense, and the Halliburton Corporation (the “Defendants”).  The Chagossians claimed that the Defendants:

  1. forcibly removed them from their homes;
  2. deposited them on islands without any type of transitional aid to be discriminated against as outcasts;
  3. destroyed their homeland by building a military base that continues to expand; and
  4. racially discriminated and continues to discriminate by refusing to allow Chagossians to return to their homes, even as employees of the military facility.

The individual federal defendants moved for dismissal and substitution of the United States Government for them. The US Government submitted its Westfall Act certification, 28 U.S.C. 2679 (d)(1), granting employer immunity on the individual defendants. The Plaintiffs filed their preliminary injunction, contested the certification and demanded that the individual defendants remain in the case. The US District Court for the District of Columbia denied a preliminary injunction and rejected Plaintiffs' requests.

On November 12, 2002, Plaintiffs filed their first amended Complaint on behalf of a class of Chagossian plaintiffs, represented by named plaintiffs Olivier Bancoult, Jeanette Therese Alexis, Marie Isabelle France-Charlot, Chagos Refugees Group, and the Chagossians Committee (Seychelles). They filed an amended Complaint alleging forced relocation; torture; racial discrimination; cruel, inhuman, degrading treatment; genocide; intentional infliction of emotional distress; negligence; and trespass in the US District Court for the District of Columbia against defendants Robert S. McNamara, Donald H. Rumsfeld, Admiral Thomas Moorer, Melvin R. Laird, James R. Schlesinger, George T. Churchill, Admiral James L. Holloway, III, Eric D. Newsom, and the United States of America. Plaintiffs invoked the jurisdiction of the District Court under 28 U.S.C. §§ 1331, 1350, and 1367 (2006). On March 21, 2002, defendants submitted a Motion to Dismiss Plaintiff’s Complaint and on December 21, 2004, the District Court granted Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), holding that the political question doctrine rendered Plaintiffs’ claims non-justiciable.

Plaintiffs appealed to the US Court of Appeals for the District of Columbia Circuit on October 3, 2005. Plaintiffs argued that their claims did not present a non-justiciable political question because they did not challenge US policy. Instead, Plaintiffs alleged justiciable claims of tortuous conduct and international law violations that are clearly within the purview of Article III courts. The Chagossians further argued that defendants’ forcible removal of the Chagossians from their homes, which left them in abject poverty in a foreign land, was so egregious that the Defendants were not entitled to immunity under the Westfall Act.

On April 21, 2006, the Court of Appeals affirmed the dismissal, concluding that “all the claims in this case present non-justiciable political questions” and that the political question doctrine precluded the Court from exercising subject matter jurisdiction.

Plaintiffs filed a timely petition for rehearing or rehearing en banc on June 5, 2006, arguing that (1) the recent developments in Appellants’ U.K. litigation necessitated a remand and (2) the panel mistakenly held that the court lacks jurisdiction to hear Appellants’ claims based on the political question doctrine. The petition was denied on July 11, 2006. Appellants filed a timely notice of appeal and in May 2006 filed a petition for certiorari to the US Supreme Court. Later that year, the petition was denied.

On the 21st February 2008, U.K. Foreign Secretary David Miliband, admitted before the House of Commons, the use of Diego Garcia by U.S. planes on extraordinary rendition flights.

In November 2010, SPEAK members held meetings in Washington D.C to discuss U.S Congress lobbying efforts with a view to commence hearings on Capitol Hill. There were several in-depth discussions and meetings on the various sensitive aspects of the Chagos file.

On March 3, 2011, advocates from UNROW and SPEAK accompanied Olivier Bancoult to meet with Representative Alcee Hastings (D.FL) to discuss the issue of working together towards establishing a congressional committee to review the plight of the Chagossians.  At the meeting, Rep. Hastings had a small contingent of people with him, which included Marlene Kaufman (General Counsel, Commission on Security & Cooperation in Europe) and Dr. Mischa Thompson (Policy Advisor, Commission on Security & Cooperation in Europe).  This meeting was designed as a follow up on prior meetings of Glyn Ford, a former member of the European Parliament, and Rep. Hastings, as well as other members of the United States’ Congressional Black Caucus.

SPEAK is urging Rep. Hastings to focus Congressional attention on Chagos and specifically to convene hearings on the issue of reparations for the Chagossians.  Rep. Hastings has received SPEAK’s efforts very warmly, and he expressed his support for the Chagos people and the advocacy efforts.  SPEAK plans to pursue each of these leads he is suggesting for follow up meetings. With the support of Congress, a resolution for the Chagossian people is within reach. This is the immediate objective on Capitol Hill.

SPEAK is also in discussion with many distinguished people who lend themselves to the Chagossian campaign, including Nobel Laureates Joseph Stiglitz, Nelson Mandela, Archbishop Desmond Tutu, and Jean-Marie Le Clezio. Ideally, this coalition to putting together a public letter to President Obama calling on the US Government to allow the Chagossians to return and to provide proper compensation and resettlement assistance.

In that respect, SPEAK had a working session with Nobel Laureate Joseph Stiglitz on April 19th, 2011 in New York to discuss ways to resolve the Chagos Islanders plight. Among the items on the agenda was a meeting with President Obama to secure his commitment and support on the way forward, writing an “open letter” to President Obama that would be published in major US and UK media sources requesting him to lift the ban prohibiting Chagossians from traveling to their islands, and testifying at the Congressional hearings on behalf of the Chagossians. He was also requested to make personal suggestions on how to effectively bring an end to this situation

The forceful removal and continuing exile of the Indigenous Chagos Islanders by the U.K. and U.S. Governments, as summarised above, has perpetrated human rights violations on a grand scale and yet for technical reasons, the U.K. and U.S. courts have been unable to uphold the fundamental human rights of the Chagos Islanders against the U.K. and U.S. Government policies respectively. Both the House of Lords in London and the U.S Supreme Court in Washington DC have, in fine, ruled that on account of the political question doctrine, the courts will not interfere and this is how the fate of the Chagos Islanders’ fundamental human rights have been dealt with.