SERMON: CALL OF THE WILD – AND THE RULE OF LAW

By Courtenay Barnett

Dear beloved we are gathered once more at the altar of the Almighty truth. The sermon for today reflects on a few aspects of world affairs.

In the official global narrative it is said that the United Kingdom and the United States of America are bastions of freedom, rights, justice and democracy. These two countries are also projected and portrayed as respecters and upholders of the rule of international law. Really?

In the immediate post World War 11 period the United Nations was established as a global institution for the peaceful resolution of international disputes and issues affecting the nation states of the world.

Within that UN system exists the International Court of Justice (ICJ).

In 2003, contrary to Article 2 of the UN Charter, the then US Secretary of State, Colin Powell, lied to the UN Security Council that there were Weapons of Mass Destruction ( WMDs) in Iraq; upon that fictitious basis the US accompanied by the UK illegally attacked Iraq, causing the deaths of over one million Iraqis.

In 2011 Libya was the most prosperous state on the continent of Africa. By measures of overall  prosperity no African country was close. The measures of GNP per capita, levels of infant mortality and standard indicia for objectively measuring a country’s socio-economic status and global ranking confirmed that observation. Additionally, Libya did not owe at the time of the attack on the Libyan state any external international debt. The US and the UK illegally bombed and succeeded in destroying  Libya to reduce the country to the status of a poverty stricken ‘failed state’ burgeoning terrorists.

In 1973, there was a democratically elected government in Chile and the US enabled the overthrow of its elected leader, Salvador Allende.

 In 2019, the US, as it had sought to do in Syria, is trying to supplant the Venezuelan government and implant a ‘regime change’ supplicant willing to do the bidding for the US in Venezuela.

That is the world in which we live, and as wars, interventions, and intelligence services events unfold around the world, this all happens within the midst of a global arms bazaar.

Just recently, as of 25th February, 2019, I read a Judgment/’Opinion’ ( i.e. there is a technical legal difference between one and the other – and the UK government shall contend that it is an ‘Opinion’ that was delivered by the ICJ and as such is not binding ) : “LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965” the Opinion  is entitled. The ICJ ruled by a majority of 13 to 1 ( of the total 15 judges sitting in the permanent ICJ for a 9 year term) that having regard to international law, the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968, following the separation of the Chagos Archipelago from Mauritius. In consequence the UK has no colonial authority over the Chagos Islands in the Indian Ocean. The one dissenting Judge on the main point  was US Judge Donoghue.

In a more technical legal sense the issues went deeper as to whether the Court would be effectively deciding on a bilateral dispute between states over territorial sovereignty. Judges Tomka and Donoghue were in agreement on that point contrary to the majority decision. The main legal question framed by Mauritius was however one of ‘decolonization’ as follows:-

     “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”; A bit of history is necessary to comprehend the depth of injustice inflicted upon the Chagossian people by way of the combined efforts of the US and UK.

In the 1960s, at a time when some 1,500 people were  living as families inhabiting the Islands, with homes, villages, schools, cemeteries and communities in situ, the US noted that the largest island within the group of the Chagos Islands, Diego Garcia, was of military strategic importance for the US. Britain controlled the islands as a colonial territory, and the US made a deal with the UK. At a discounted price and in exchange for a Polaris nuclear submarine the UK agreed to permit the islands to be militarily used by the US. The US made one stipulation; that the islands would be depopulated.

The UK rounded up all the islanders, depopulated the islands, then dumped them first in the Seychelles Islands, and there imprisoned them, and then further removed them all and abandoned them in Mauritius.

The Chagos islanders first made efforts in the domestic courts in England, seeking justice.

The UK High Court in 2000, ruled that the depopulating of the islands was illegal. By route of the Royal Prerogative, then Prime Minister Tony Blair, bypassed both Parliament and the Court’s Judgment to ensure that the islanders could not return to their homeland. Blair was effecting superimposition of political contrivance and convenience over established law.

In 2008 the matter returned to court on appeal by the UK government and the English court at the highest level, the Supreme Court, demonstrated what Professor J.A.G. Griffiths of the London School of Economics had termed, ‘the politics of the judiciary’ and ruled in favour of the UK government. Yet the legal issue did not end there.

Domestic law is subsumed under International Law, and it is expected that the rulings of domestic courts should be congruent with legal standards existing under International Law. So, the matter ended in the ICJ at the Hague and the Chagossian people had their further day in court and won, being found legally entitled to return to their homeland.

The UK had fought strenuously to restrain and jurisdictionally restrict the ICJ from proceeding to exercise any jurisdiction and thus not give its legal opinion. Here is how the ICJ ruled on that aspect of the case:-

“88. The Court therefore concludes that the opinion has been requested on the matter of decolonization which is of particular concern to the United Nations. The issues raised by the request are located in the broader frame of reference of decolonization, including the General Assembly’s role therein, from which those issues are inseparable (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 26, para. 38; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 159, para. 50).

89. Moreover, the Court observes that there may be differences of views on legal questions in advisory proceedings (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34). However, the fact that the Court may have to pronounce on legal issues on which divergent views have been expressed by Mauritius and the United Kingdom does not mean that, by replying to the request, the Court is dealing with a bilateral dispute.

90. In these circumstances, the Court does not consider that to give the opinion requested would have the effect of circumventing the principle of consent by a State to the judicial settlement of its dispute with another State. The Court therefore cannot, in the exercise of its discretion, decline to give the opinion on that ground.

91. In light of the foregoing, the Court concludes that there are no compelling reasons for it to decline to give the opinion requested by the General Assembly.”

Even US Judge Donoghue voted with the unanimous majority on this aspect of the case concerning jurisdiction. Yes, she did dissent on the main point of the case. It is therefore expected that the government of the UK will honour the decision; ‘expected’. The nature of such an international decision is that it is treated as advisory.  Some legal scholars have argued that the Court needs always instead to examine critically why the request had been made and what the effect of giving an opinion will be. It seems that the ICJ in this decision headed in that general direction. For, the member states of the UN are expected to act in accordance with findings of that authority as a duty imposed by the UN itself. At paragraph 182 of the ICJ’s ruling stated:-

“182. In response to Question (b) of the General Assembly, relating to the consequences under international law that arise from the continued administration by the United Kingdom of the Chagos Archipelago, the Court concludes that the United Kingdom has an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius.” My emphasis “ …  that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius.”

Also, learned Judges of the ICJ, might I respectfully add that standards of ‘good governance’ in countries such as the UK and US would suggest the need for such compliance.

One might even go further, myself a mere  student of international law, observing, quite factually, that the language deployed in international law, references ‘civilized nations’; indeed – invading, bombing, kidnapping, and capturing territories would appear more  the conduct of criminals who consistently  ignore well established law than the lawful  conduct of ‘civilized nations’.

It can further be noted that WikiLeaks published a US Embassy diplomatic cable from 2009. It stated, “Establishing a marine reserve might indeed, as the FCO’s [Colin] Roberts stated, be the most effective long-term way to prevent any of the Chagos Islands’ former inhabitants or descendants from resettling.”

The people of the Chagos Islands had remained as a possession of Britain and those  people therefore were a  British responsibility throughout their entire ordeal. However, the ICJ judgment/opinion  also found that at the time of the expulsions to Mauritius, Mauritius had been unlawfully coerced to give to Britain, its territory of the Chagos Islands. As the court said:-

“…this detachment was not based on the free and genuine expression of the will of the people concerned.” ( ICJ)

Seems that legally, there is more than a little returning to be done.

Some of us in the congregation of humanity understand the good sense of standing with this Altar’s message of the importance of remaining within the flock of the rule of international law; others outside ( who I still invite in to this beloved ‘civilized’ congregation of all humanity) embrace ‘Empire’, ‘exceptionalism’ and ‘exclusivity’ – while we the faithful, the humane, the peace loving – reject those options.

One more easily might summarise the entire case from a simple and balanced perspective of a human being invoking the meme: do unto others as you would have them do unto you. How would the entire population of Wiltshire feel if they were kidnapped and placed in a strange land? A ‘little bit mistreated’ I suspect.  Should it therefore be construed as permissible, humane or somehow legal for Britain to be permitted to kidnap and depopulate for the sake of its profiteering in the Chagos Islands? Thus, with legal reason, the ICJ Judges in the majority concluded at paragraph 178 of the Opinion:-

“Accordingly, the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination.”

To my mind, the British Government’s conduct in the Chagos Islands was, quite literally, criminal. Calculatedly criminal conduct as is evident. The UK did not just ignore economic justice; social justice; racial justice; but conjoined those injustices with violations of the right to family life and the right to self-determination and more. It simply acted as a law unto itself, having abused state power and not even post-judgment in 2019 is accepting and/or understanding that by reading between the lines of the decision, the ICJ is indicating all those violations. Respecters of ‘The Rule of Law’?

Having carefully read the ‘Opinion’ I can only conclude that the Court and the Judges sitting there did the best that they could do to obtain and deliver justice. For, in the final analysis, it cannot be expected that more be delivered in this case, such as it was structured; the Judges could only have merely done what they clearly stated as that which honest government should otherwise never have done. The Judges themselves cannot be asked further to do the jobs of politicians, who ultimately are left to honour and implement the Court’s decision.

Not much more do I have to say today.

PEACE AND JUSTICE.

So endeth my sermon.

AMEN! 

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* COURTENAY BARNETT is a graduate of London University. His areas of study were economics, political science and international law. He has been a practising lawyer for over thirty years, has been arrested for defending his views, has been subjected to death threats, and has argued public interest and human rights cases. He lives and works in the Caribbean.