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

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	05-5049
Decision title	Appeal from the United States District Court for the District of Columbia
Decision date	21 April 2006
Parties	Olivier Bancoult Jeanette Therese Alexis 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	Appeal from the United States District Court for the District of Columbia
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 a decision of 21 December 2004, the District Court for the District of Columbia held that the case was not justiciable as it required the judiciary to review political questions. On appeal, the Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court.

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 exportation 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.

The plaintiffs appealed.

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 (pp. 2-4).

Core legal questions

Under what conditions may the political question doctrine apply to bar US courts from exercising jurisdiction over a case?
Considering the above, did the District Court for the District of Columbia err in applying the doctrine to the present case in order to bar further proceedings?

Specific legal rules and provisions

Alien Tort Claims Act.
Federal Employees Liability Reform and Tort Compensation Act.

Court's holding and analysis

The United States Supreme Court in Baker held that one of the following factors must be present for the political question doctrine to apply: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question (pp. 7-8).

The decision to establish a military base at Diego Garcia is not reviewable as it was an exercise of foreign policy and national security powers that could not be re-examined without making a policy determination of a kind clearly for non judicial discretion – the third Baker factor is at play (p. 14). The appellant’s claims cannot be extricated from the decision to establish the military base and do more than merely touch on foreign policymaking. The Court can no more review the decision to establish the military vase that it can review the manner in which that decision was carried out. To do so would be to meddle in foreign affairs beyond the institutional competence of the judiciary (pp. 15-16).

Claims against the individual Appellees are barred due to the political question doctrine. The case is not justiciable (p. 18).

Further analysis

T. Poole, 'Judicial Reciew at the Margins: Law, Power and Prerogative', LSE Law, Society and Economy Working Papers 2010;
P. H. Sand, 'Diego Garcia: British American Legal Black Hole in the Indian Ocean?', Journal of Environmental Law, 2009, Vol. 21, pp. 113-137;
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;
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;
'Federal Courts – Political Question Doctrine – DC Circuit Holds Claims of Harms to Native Inhabitants of the British Indian Ocean Territory caused by the Construction of a US Military Base Nonjusticiable – Bancoult v. McNamara, 445 F.3d 427 (DC Cir. 2006)', Harvard Law Review, 2007, Vol. 120, pp. 860-867;
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 District Court for the District of Columbia, Olivier Bancoult et al v. Robert S. Mcnamara et al., Civil Action No. 01-2629 (RMU), Memorandum Opinion, 30 September 2002;
US District Court for the District of Columbia, Olivier Bancoult et al v. Robert S. Mcnamara et al., Civil Action No. 01-2629 (RMU), Memorandum Opinion, 21 December 2004.

Social media links

T. Thienel, 'The Political Question Doctrine et al.: In Violation of International Law?', The Core, 9 June 2006 (Part 1; Part 2).
J. Ku, 'The Ever Murky Political Question Doctrine – A Useful Shield for US Foreign Policy', Opinio Juris, 24 April 2006.