Olivier Bancoult et al. v. Robert S. McNamara et al.

Court	United States District Court for the District of Columbia, United States
Case number	01-2629 (RMU)
Decision title	Memorandum Opinion
Decision date	21 December 2004
Parties	Olivier Bancoult Terese Mein Marie Isabelle France-Charlot Chagos Refugee Group Chagos Social Committee Robert S. Mcnamara Donald H. Rumsfeld Thomas Moorer Melvin R. Laird James R. Schlesinger George T. Churchill James L. Holloway III Eric D. Newsom United States of America Halliburton Corporation De Chazal Du Mée Brown & Root Inc.
Categories	Genocide
Keywords	Forcible transfer, jurisdiction, persecution, torture
Links	Memorandum Opinion
Other countries involved	Chagos Archipelagos

Summary

The Chagos Archipelagos are a collection of small islands in the middle of the Indian Ocean. Under British administration since 1814, they were home to approximately 1000 inhabitants by the 1960s who lived on and cultivated the land, educated their children and raised their families.

In 1964, the British and the United States governments entered into secret negotiations the outcome of which was the establishment of a military base on Diego Garcia, the Chagos Archipelagos largest islands. In order to do so, from 1965 until 1971, the population of Chagos was forcibly relocated: those who had left on trips abroad were denied re-entry, an embargo was put in place preventing the delivery of crucial food supplies, and the remaining population was forcibly loaded onto ships and relocated to Mauritius and the Seychelles.

The present civil suit is brought by the indigenous peoples of Chagos, their survivors and their descendants against the United States and a number of high-ranking individuals within the US Government whom the plaintiffs consider responsible for their forcible relocation. By its memorandum opinion of 21 December 2004, the United States District Court for the District of Columbia dismissed the plaintiffs’ motion on the ground that the named individual defendants were all federal employees at the time (e.g. former Secretaries of Defense, Admirals) and therefore benefited from immunity from prosecution under US law. Alleged violations of the Alien Tort Claims Act do not fall within the accepted exception to immunity because the Act itself does not create substantive rights and obligations that can be violated.

Procedural history

On 20 December 2001, the plaintiffs, all indigenous Chagossians, their survivors and their direct descendants, filed a complaint before the United States District Court for the District of Columbia seeking relief for their people’s forceful removal from the Chagos Archipelagos by the United States and their deportation against their will to another land.

On 21 March 2002, the Department of Justice provided a Certificate of Service affirming that the individual defendants’ in the case were acting within the scope of their federal office at the time of the incidents.

The plaintiffs’ motion was dismissed on 30 September 2002 as the District Court requested further submissions as to the exercise of subject matter jurisdiction in the present case.

On 18 November 2003, the plaintiffs filed an amended complaint in order to respond to the request for further submissions from the District Court.

Related developments

Proceedings in the United States:

The plaintiffs appealed, but without success: by a decision of 21 April 2006, the United States Court of Appeals for the District of Columbia Circuit affirmed the decision of the District Court by holding that the case was non justiciable.

Proceedings in the United Kingdom:

The islanders also brought three lawsuits before British courts in 1999, 2002 and 2006. They lost all cases, including the two appeals. These cases were:

High Court of Justice, Queen's Bench Division, R v. Secretary of State for Foreign and Commonwealth Office ex parte Bancoult, Case No: CO/3775/98, Judgment, 3 November 2000 ([2000] EWHC 413);
High Court of Justice, Queen's Bench Division, Chagos Islanders v. Attorney General and Her Majesty’s British Indian Ocean Territory Commissioner, Case No: HQ02X01287, Judgment, 9 October 2003 ([2003] EWHC 2222 (QB));
High Court of Justice, Divisional Court, R (on the application of Louis Olivier Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, Case No: CO/4093/2004, Judgment, 11 May 2006 ([2006] EWHC 1038 (Admin)).

See also R. Alford, 'High Court Rules on Displacement of Chagos Islanders', Opinio Juris, 12 May 2006; and BBC, 'British Colonial Files Released following Legal Challenge', BBC News, 18 April 2012.

Proceedings before the European Court of Human Rights:

On 20 September 2004, the islanders also lodged proceedings in the European Court of Human Rights alleging violations of the European Convention on Human Rights.

On 11 December 2012, the Court ruled that the British Indian Ocean territory does not come within the jurisdiction of the Convention and therefore the case was declared inadmissible (Chagos Islanders v. The United Kingdom, European Court of Human Rights, Application No. 35622/04, 11 December 2012). See also J. Vidal & O. Bowcott, 'Chagos Islanders Forced into Exile left ‘Dumbstruck’ by Court Ruling', The Guardian, 20 December 2012.

Legally relevant facts

The Chagos Archipelago is a collection of small islands in the middle of the Indian Ocean. The French ceded it to the British in 1814 and it remains under British administration today. By the 1960s, some 1000 Chagossians lived on the islands and cultivated its land. In 1964, the British and the United States governments entered into negotiations to establish a US military facility in the Indian Ocean.

In 1965, the British detached Chagos from Mauritius and incorporated it in a newly created British Indian Ocean Territory. The Chagossian population was forcibly removed in three phases. First, entry was barred to those Chagossians returning from travels abroad. Second, an embargo prevented the delivery of necessary supplies of food in a bid to starve out the remaining population. Third, people were forcibly boarded onto ships and relocated, most often to Mauritius or the Seychelles.

Subsequently, Diego Garcia, the Archipelagos’ largest island, was appropriated by the United States and is currently in use as a military installation (par. II.A).

Core legal questions

Can violations of jus cogens norms and fundamental human rights negate the immunity afforded to federal officers and employees by virtue of the Federal Employees Liability Reform and Tort Compensation Act?

Specific legal rules and provisions

Alien Tort Claims Act, Para. 1350 of the US Code.
Federal Employees Liability Reform and Tort Compensation Act, Paras. 2671-2680 of the US Code.

Court's holding and analysis

The Federal Employees Liability Reform and Tort Compensation Act (Westfall Act) confers immunity upon all federal officers and employees in respect of their negligent or wrongful acts or omissions on the condition that they were acting with the scope of their office of employment (par. III.A.1). The plaintiffs argue that the individual defendants’ conduct amounted to torture, genocide, forcible relocation and other violations of fundamental human rights and such conduct cannot therefore be within the scope of the employment of the defendant federal officers. The District Court concluded that conduct falls within the scope of office if it is of the same general nature as that authorised. Since the individual defendants were working in their official capacities for various federal agencies, the establishment of a military base on Diego Garcia fell within the scope of their employment. Alleged use of force or misconduct in removing the population was merely incidental to the individual defendants’ job to establish the base. The individual defendants’ therefore enjoy immunity (par. III.A.2).

The Act provides for two exceptions to immunity. The plaintiffs argue that their claim falls within the second exception: violation of a statute of the United States under which such civil action against an individual is otherwise authorised. The plaintiffs allege the Alien Tort Claims Act (ATCA) is the statute violated. However, the Court concluded that ATCA does not confer rights or impose obligations or duties, which when violated would give rise to the sovereign immunity exception contained in the Westfall Act. The exception would apply only if ATCA created substantial rights or duties that could be violated (par. III.A.2).

Consequently, the sole remedy available to the plaintiffs is to pursue an action against the United States under the Federal Tort Claims Act, which requires plaintiffs first to exhaust administrative remedies. This not being done, the Court dismissed the plaintiff’s motion (par. III.A.3).

The Court also granted the defendants’ motion to dismiss on the grounds that the case involves a political question rendering it non-justiciable (par. III.B).

Further analysis

S. Allen, 'Looking Beyond the Bancoult Cases: International Law and the Prospect of Resettling the Chagos Islands', Human Rights Law Review, 2007, Vol. 7, pp. 441-482;
P.H. Sand, 'Diego Garcia: British American Legal Black Hole in the Indian Ocean?', Journal of Environmental Law, 2009, Vol. 21, pp. 113-137;
C. Nauvel, 'A Return from Exile in Sight? The Chagossians and Their Struggle', Northwestern University Journal of Interantional Human Rights, 2007, Vol. 5, pp. 96-126;
S. Bangaroo, 'A Short Analysis of the Exile of an Indigenous Population from Beginning to End', Hertfordshire Law Journal, 2005, Vol. 3, pp. 3-7;
C. H. Harwood Jr., 'Federal Tort Claims Act: Analysis', NTL World, 20 December 2001;
D. Vine, 'Empire’s Footprint: Expulsion and the United States Military Base on Diego Garcia', Ann Arbor: ProQuest 2006.

Instruments cited

Alien Tort Claims Act, Title 28, Para. 1350 of the Code of Laws of the United States of America (United States Code).
Federal Employees Liability Reform and Tort Compensation Act, Title 28, Paras. 2671-2680 of the Code of Laws of the United States of America (United States Code).

Related cases

US Court of Appeals for the District of Columbia Circuit, Olivier Bancoult et al v. Robert S. Mcnamara et al., Case No. 05-504921, Appeal from the United States District Court for the District of Columbia, 21 April 2006.