V for Victory

Regular readers will be familiar with the struggle of the Chagossians which I've followed fairly closely. All too often the tone of this coverage has been pessimistic, negative and defeatist. Today, however, we (that is those of us who support the Chagossians' fight) have got something to celebrate: yesterday the High Court ruled in their favour taking them one step closer to their long-denied dream of returning home.

You may or may not remember that in December last year the Chagossians went to the High Court to challenge the Orders in Council which prevented them from returning to the islands from which they were evicted forty-odd-years ago. The Orders passed in 2004 (entirely coincidentally on the same day as European and Local Elections) are a Royal Prerogative power which allow ministers to make decisions without Parliamentary scrutiny or approval. The Chagossians' legal team challenged the use of these powers, arguing that Ministers had exceeded their legal scope.

The ruling itself is written in the snappy, succinct style for which the British judiciary are so famous, so I haven't as yet read the whole thing. Nevertheless, a quick skim suggests that one of the key points was the issue of "irrationality." This for those of you without law degrees, is one of the grounds under which decisions can be challenged in a judicial review. It's a term with a specific definition known as Wednesbury unreasonableness after case which established it. This asks, in the words of Lord Greene, if the decision was "so unreasonable that no reasonable authority could ever have come to it." The judges seem to have concluded that the decision in this case was unreasonable on the basis that it was made without any reference to the interests of the "BIOT" (British Indian Ocean Territory, what the British state calls the Chagos Archipelago). Quoth their Lordships:

We make it clear that we are not making any judgment about the defence interests of the United Kingdom or the United States- all that we are saying is that the validity of the Order in Council made by the Queen in right of BIOT has to be tested by reference to the interests of BIOT. This Order in Council conspicuously does not do that.

They also suggest that the islanders' High Court victory in 2000 created a "legitimate expectation" on the part of the Chagossians and "that their right of abode in the Territory would continue to be respected by the defendant and would not be taken away without prior consultation with them, and there was none."


Many commentators have described the Chagossians' victory in terms of their having won the right to return to their island homes. Shortly after the ruling, Olivier Bancoult, the de facto leader of the Chagossians community, averred:

We have won a historic judgement in our favour to allow us to return to our homeland.

Our next step is that we will go to our birthplace as soon as we can. The right of the people who have been banished for so many years has been returned.

One should be wary of getting carried away at this point. Recall that the islanders have won the right to return once before, back in 2000. Then the High Court ruled their expulsion was illegal. Afterwards the government not only refused to allow the islanders to resettle, but produced a series of reports claiming resettlement would be prohibitively expensive. When nobody took these seriously they resorted to the Royal Prerogative, which brings us more or less up-to-date. I'd love to think that after this ruling the government would do the decent thing and blow their own brains out. In reality we can expect further prevarication.

In all likelihood, this prevarication will kick off with an appeal which could stretch things out for months, perhaps even years. The lovely people at the UK Chagos Support Association are encouraging supporters to write to the brand spanking new Foreign Secretary, Margaret Beckett urging her not to follow this route "in the interests of justice and humanity." Unfortunately, neither of these are characteristics for which New Labour ministers are renowned so this may just be pissing in the wind, but there's no harm in trying and if you want to do just that you can get in touch here:

Margaret Beckett,
Foreign and Commonwealth Office,
King Charles Street,
LONDON
SW1A 2AY

Remember to put your contact details if you want them to reply.

Even if the government decide not to appeal, they still have a veto over any plans to return. The agreement struck between the US and UK all owing the former to operate a military base on Diego Garcia under which both sides have a veto over who lives on the island. According to Auntie, "The US says it opposes any return on security grounds." This is patently cant given the total absence of evidence that the Chagossians pose a threat to anything other than Anglo-American claims to humanitarianism. Richard Gifford, the islanders' London-based lawyer, suggested that the judgement stated that the Americans only needed Diego Garcia for a base: "This should help the UK to say that the Outer Islands can be recovered for occupation." Bancoult echoed this suggestions promising, "The Chagossians are willing to co-habit with the Americans but they have never shown an interest in that." (In case you care I've touched on the possibility of co-habitation previously.)

In related news, the boys and girls over at Lalit have uncovered a worrying story at goings on (and near goings down) on Diego Garcia itself:

In the past 10 days, Lalit has received emails informing us of two serious near-disasters involving aeroplanes on and around Mauritian Islands of Diego Garcia, occupied by the United Kingdom and the United States Armed Forces. At the same time, Air Traffic Control in Mumbai reports that the incident in their Flight Information Route was the third in 10 days, whereas they expect 6 a year. They blame US military craft from Diego Garcia.

From the people who brought you "friendly fire": fly by the seat of your pants flying:

The first incident was a “near miss” on 2 May involving an Air India commercial passenger flight AI-962 en route between Jeddah and Kerala, reported in Daily News and Analysis Sunday night. The military plane believed to be from Diego Garcia military base was only 500 feet lower than the commercial flight instead of the regulation 1,600 metre for vertical separation, and this proximity set off the commercial plan’es Traffic Collision Avoidence System (TCAS). The Air India pilot then had to take his plane up an additional 1,500 feet. “A TCAS resolution alert warns only when there is a high probability for collision,” airport sources in Mumbai told the Daily News and Analysis. “This is a serious safety hazard,” said a senior Directorate General of Civil Aviation (DGCA) officer in Mumbai. The incident was also reported in Le Mauricien of 8 May.

The second incident was a belly landing, that is with the wheels not down, of a B1 Bomber on the Diego Garcia runway, where it skidded along for 7,500 feet and caught fire, reported by Air Force Times. About one million dollars damage is estimated by the Air Force Times. The B-1B, according to the Air Force Times comes from the Texas Dyess Air Force Base. It had been on a mission to Guam. The Air Force are not saying what the incident was due to.

That Indian air traffic controllers expect six such incidents as year is worrying enough, but note the sudden and very extreme increase. Have American pilots simply ended up with a duff load of speed or is this indicative of preparations for an attack on Iran?

File Under: Chagos, Court, Diego Garcia, Law, News, Politics, UK