Chagossians suffer blow in fight to go home as court rejects WikiLeak cable
Posted on Apr 19, 2013
US embassy cables allegedly detailing UK plan to stop return to Indian Ocean islands used by US military is ruled inadmissible
Classified American embassy cables obtained by WikiLeaks cannot be used as evidence in English and Welsh courts because they breach diplomatic privilege, judges have ruled. The decision by Lord Justice Richards and Mr Justice Mitting in the high court will have far-reaching consequences and is a severe setback for the use of material obtained from leaks or whistleblowers.
Lawyers representing exiled islanders from the Chagos archipelago had planned to exploit revealing official documents, obtained by WikiLeaks and published in the Guardian, to question a Foreign Office official, Colin Roberts. He was commissioner for the British Indian Ocean Territory (BIOT), which covers the Chagos Islands, in 2009 when the cable was written by the US embassy in London.
The US cable quoted Roberts, who is due to become the next governor of the Falkland Islands, telling the Americans that as a result of imposing a marine protected area (MPA) on the territory, there would no longer be "human footprints" or "Man Fridays" on the islands. The US rents a military base on the largest island, Diego Garcia, and the Chagossians have been in a long-running dispute with the Foreign Office about their right to return home.
The case is the first one resulting from the leak of classified US cables in which UK officials had been ordered to appear. WikiLeaks material has been deemed admissible in other cases, notably the UN-backed special court for Sierra Leone in The Hague.
To avoid confirming the WikiLeaks cable's authenticity, Steven Kovats QC, counsel for the Foreign Office, said the government would stick to a policy of "neither confirm nor deny" anything about the documents. The policy is known in Whitehall as NCND.
But the judges warned that Roberts could not avoid answering questions by relying on the NCND policy. Kovats then argued that the Diplomatic Privileges Act 1964, which incorporates the 1961 Vienna Convention on Diplomatic Relations into domestic law, meant the alleged cable, or copies of it held by newspapers, were inadmissible in evidence.
In their ruling, the judges agreed and said that the 1964 Act prevented them from considering whether the cable contained an accurate record of the May 2009 meeting. Article 24 of the Vienna Convention states: "The archives and documents of the mission shall be inviolable at any time and wherever they may be."
Outside the court, Sam Brown of law firm Clifford Chance, which is representing the Chagossians, said: "We are extremely disappointed that the court has decided not only to reverse the ruling it made on whether the policy of NCND prevented Foreign Office officials being asked questions about the accuracy of US cables, but also to exclude the cables from evidence in their entirety.
"This decision, that has potentially global ramifications, means that the real reason the MPA was created in the Chagos archipelago may never be known. The foreign secretary [William Hague] has opposed the use of WikiLeaks cables in court so as to deprive the Chagossians of the opportunity to cross-examine the BIOT commissioner as to his motives for the MPA, which were recorded by the US officials as being the best way to defeat the resettlement of the islands by their rightful inhabitants, with no human footprints or Man Fridays."
Earlier in the hearing, Roberts denied he had said the MPA was a plan with an "ulterior motive" – namely, to prevent the islanders from returning.
Asked by Nigel Pleming QC, counsel for the islanders, about the alleged "Man Fridays" comment, Roberts, talking generally, said he "absolutely" agreed and would never have used the phrase in such circumstances. He refused to answer questions about the authenticity and accuracy of the cable's contents.
The case has been brought by Louis Olivier Bancoult, chairman of the Chagos Refugees Group, who has seized on the leaked cable to argue in the high court that the decision to impose an MPA by the then foreign secretary, David Miliband, in 2010, should be declared unlawful. The leaked US cable was seen as a key element in their claim.
The inhabitants of the archipelago were removed in the 1960s and 1970s when the UK agreed that the US could build its base on Diego Garcia.
Their removal and the imposition of a marine reserve is also being contested at the permanent court of arbitration in The Hague. Earlier this year Britain was told it would have to justify its decision before a full hearing of the tribunal.
The Mauritian prime minister, Navinchandra Ramgoolam, has said the decision to establish a 1,400,000 sq km (540,000 sq mile) marine reserve was carried out in defiance of assurances given to him at the time by the then prime minister, Gordon Brown.
The Diego Garcia agreement signed by the US and UK in 1966 expires in 2016. Both parties must agree to extend, modify or end it by December 2014. Ramgoolam told the Guardian last year that the objective of Mauritius was to "reassert sovereignty" over the Chagos islands. The case continues.
Owen Bowcott. Legal affairs correspondent The Guardian, Thursday 18 April 2013