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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 30 September 2002, the United States District Court for the District of Columbia dismissed the plaintiffs’ motion on procedural grounds, namely that it required further submissions with regards to the exercise of jurisdiction over the claim considering its implication of the United States, a party that ordinarily cannot be sued unless there has been an implicit or explicit waiver of immunity. 

The events giving rise to the case have occurred in the municipality of Bosanski Šamac (Bosnia and Herzegovina) in 1992. After the Serb forces took over control, non-Serb civilians were detained at several prison camps throughout the municipality. One such facility was the primary school in Bosanski Šamac (Bosnia and Herzegovina). Milan Simić together with other Serb men severely beat and mistreated several detainees held at the primary school during the summer of 1992. In May 2002, Simić pleaded guilty to the crime against humanity of torture. Trial Chamber II entered a finding of guilt, and was left with the issue of determining the appropriate sentence for Simić.

With respect to the aggravating factors, Trial Chamber II accorded relevance to the gravity of the offence, Simić’s position of authority, the vulnerability and inferior status of the victims, and Simić’s discriminatory intent.

Trial Chamber II also took into consideration mitigating circumstances, including: Simić’s guilty plea, his remorse, his voluntary surrender, his lack of prior criminal conduct, his comportment at the Detention Unit and general co-operation with the Trial Chamber and the Prosecution.

After balancing these factors, Trial Chamber II sentenced Simić to 5 years of imprisonment.

The principle of non-refoulement prohibits deportation of a person if there is a significant risk of that person being subjected to torture in the country of arrival. The principle has been repeatedly in the spotlights since 2001, as states came under increasing obligation to deny safe havens to terrorists. However, as this case proves, the principle was an issue even before September 11, 2001.

The Federal Court and the Court of Appeal rejected Suresh’s complaint against the decision to deport him. The Supreme Court held that the Minister of Citizenship and Immigration should reassess that decision, most importantly because both the Canadian constitution and international law rejects deportation to torture, as there would be a clear connection between the deprivation of someone’s human rights and the Canadian decision to expulse that person. Still, the Court did not exclude the possibility that in some cases, Canada may deport despite risk of torture. Also, the Court held that the Immigration Act had not provided Suresh with sufficient procedural safeguards.  

The Ad Hoc Tribunal acquitted the Accused of both charges, as it found none of his subordinates to have committed serious human rights abuses. In addition, the Tribunal found that the Accused has not disregarded important information and has acted in the best of his power to stop the human rights violations.

East Timor’s foreign minister described the judgment as ‘scandalous’, whereas activists in Indonesia considered the judgments of the Ad Hoc Tribunal to be “mock trials...[as] a result of pressure from the military.” Florendo de Jesus, one of the witnesses, testified that he had recognized several people among the attackers as TNI (Indonesian National Armed Forces) members, one of them being his own uncle. The public outrage, mostly taking place in East Timor, came as a consequence of a belief that the Ad Hoc Tribunal is failing to try the Indonesian commanders involved in the violence, as well as from the previous acquittals, specifically those of army Lieutenant Colonel Asep Kuswani, police Lieutenant Colonel Adios Salova and mayor Leonita Martins.

The Ad Hoc Tribunal acquitted the three defendants of the charges entered against them and found that the prosecution had not been able to establish a link between the TNI (Indonesian National Armed Forces) and Polri (Resort Police of the Police of Republic of Indonesia), on the one hand, and the BMP, on the other. The former were official governmental bodies, whereas the latter were militia. The judgment was publicly criticized as it was argued that the TNI and the riot police were indeed involved in the violence, including the killing of the 22 civilians.