Philippe Sands: Brexit was ‘an absolute bloody nonsense and everybody knows it’

Imagine if, just a few years before the Irish Free State came into being, Britain created a new colony of the Aran Islands and later forcibly removed all of the islanders, with no return date.

Incredible? Not to Liseby Elysé, who was among 2,000 natives of the Chagos Islands in the Indian Ocean forcibly deported by Britain between 1968 and 1973 to Mauritius and the Seychelles. Aged 20, Elysé, and her husband, with hundreds of other islanders, were directed on an April evening in 1973 to pack one suitcase, board a ship and leave her birthplace of Peros Banhos.

This happened after Britain dismembered the Chagos Archipelago from Mauritius in 1965 – three years before most of that country got independence – under a secret deal to create Britain’s last colony, the British Indian Ocean Territory (BIOT), including one island, Diego Garcia, for the Americans to use as a military base.

Over the next half century, there were significant international law developments aimed at dismantling colonialism, including a UN resolution affirming the right to self-determination and the territorial integrity of former colonies, championed by an Irish diplomat Frederick Boland, father of poet Eavan Boland.

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These, and a determined campaign over four decades by Elysé and other Chagossians, the Mauritian government and international lawyers, led to an International Court of Justice (ICJ) opinion in early 2019 that Britain’s dismemberment of Chagos from Mauritius was an unlawful act. A UN general assembly resolution followed, requiring Britain to end its colonial administration of the BIOT by November 2019.

Britain ignored all that until last month when negotiations were announced indicating it may be on the verge of returning Chagos to Mauritius and allowing the Chagossians finally return to their island homes.

‘Manifest lawlessness’

In his latest book, The Last Colony, Philippe Sands charts the long battle between Britain and Mauritius for sovereignty over Chagos, leading to the ICJ’s 2019 decision the detachment of Chagos was not based on the free and genuine expression of the people concerned.

Sands, who represented Mauritius during 12 years of that battle, is “cautiously optimistic” Britain’s changed attitude to Chagos may signal a more positive approach by it to the Northern Ireland protocol and a pulling-back from what he calls its “manifest lawlessness” over the last five to six years.

He spoke to The Irish Times in advance of his trip to Dublin on Thursday to deliver the Free Legal Advice Centre’s (Flac) annual justice lecture.

The British-French lawyer in a previous book, Lawless World, revealed a memo showing former British prime minister Tony Blair had told former US president George Bush he would support US plans to invade Iraq before Bair had sought legal advice about the legality of that invasion.

The Last Colony weaves the story of Chagos and Elysé with the development of international law, the gradual demise of colonialism since the second World War and Sands’ evolving relationship with international law.

Elysé was in court as a witness in the case before the ICJ but, because she cannot read or write, her statement was pre-recorded and presented by video, says Sands. “It lasted three minutes and 47 seconds and was a transformative moment in the entire case.”

Sometimes in tears, sometimes angry, Elysé told the court: “Nobody would like to be uprooted from the island where he was born, to be uprooted like animals. And it is heartbreaking. And I maintain justice must be done… I must return to the island where I was born…”

There was, Sands says, “a silence, that moment when she spoke to the court, an individual who was at the heart of this complicated legal story. She brought it to life in a different way.

‘Real people’

“I think it transformed the perceptions of the judges who felt she is not some distant theoretical account, this is real, about real people today.”

Now involved on behalf of Mauritius in the negotiations with Britain over Chagos, Sands is “cautiously optimistic that justice will finally be done”. That could see the US military base on Diego Garcia being protected under a long-term arrangement under Mauritian sovereignty, the Chagossians being able to go home if they want to and, in light of plans for a marine protection area, “a proper effort to protect the environment of that extraordinary place”.

Sands says the story of Chagos is particularly resonant for Irish people “because it is about British colonialism” and because of Frederick Boland’s contribution to advancing the end of colonialism.

Boland championed the passage by the UN general assembly in late 1960 of Resolution 1514 which declared “all peoples have the right to self-determination” and proclaimed a principle of “territorial integrity” of a colonised country.

Boland said his country “has not yet recovered its historic unity” and he expressed support for the integrity of colonial territories, the idea no colony could be dismembered in the period before independence.

Eighty-nine nations voted in favour of Resolution 1514, none voted against and nine abstained, including Britain, France, the US and Australia. The British delegate said it could accept self-determination as a principle, but not a “legal right”, and said nothing about territorial integrity.

“There is a very Irish element to Resolution 1514,” says Sands. “I think it was very personal for Boland.”

Looking to the future, he says: “I think the heart of the question in the Irish context is going to be the will of the people. The Good Friday [Belfast] Agreement reflects a commitment to allow the will of the people to prevail and once the will of the people in the expression of the right of self-determination indicates that they wish for there to be a united Ireland, it will happen.”

He has noted “a certain hesitation” about the idea of Irish unity among his friends in Ireland “which has surprised me and, I must confess, slightly disappointed me”.

ICJ and Chagos

He is “a strong supporter” of Irish unity, provided it is what all the people of Ireland want. While things “can take decades or even longer”, the story of Elysé and the reconnection between the Chagos Archipelago and Mauritius “is a story of reunification”. Chagos was part of Mauritius between 1814 and 1965, was dismembered in 1965 and, in 2019, the ICJ ruled that dismemberment was unlawful, meaning Chagos “has always been part of Mauritius”.

The heart of the ICJ decision on Chagos is about the will of the people, he says. “In 1965, the will of the people did not express support for the dismemberment of their country.”

That “big point” of the ICJ decision “should provide support and succour for those who support Irish reunification, and some considerable concern for those who do not”.

“Minority views, ultimately as a matter of law, and in particular international law, will not prevail in places like the Great Hall of Justice in The Hague and I think that does have consequences for what may be coming in relation to Ireland.”

Sands says he and Baroness Helena Kennedy dissented from the majority view of the commission on a British Bill of Rights out of concern the motivation for that is an effort to decouple the UK from the European Convention on Human Rights, which is embedded in the Belfast Agreement, and the UK Human Rights Act. “Any tweaking or undermining of that risks catastrophe in relation to Northern Ireland and Ireland.”

He believes British justice secretary Dominic Raab’s efforts to bring in a British Bill will fail because many Conservative parliamentarians are “appalled” by his proposals, but says it is “not a time for complacency”. The strand in the right wing of the Conservative party that imagines there is still “this thing called the British empire” has to be “firmly resisted”.

“These people, including Raab, pose a fundamental threat to the rule of law, accompanied by home secretary Suella Braverman who, goes down in history as undoubtedly the worst attorney general the UK has ever had.”

Any reasonable observer would have an anxiety for the rule of law globally, he says, and be concerned about the rise of nationalism, populism, xenophobia and the concept of “them and us”.

Respect for the idea of the rule of law is “the heart and centre of our system of government” but “is absolutely under threat”, including in Russia, China, the US and the UK. “Newspaper articles describing British judges as the enemies of the people quite recently in the context of Brexit was a dreadful moment.”

‘Halcyon days’

Brexit is the “single greatest act of self-harm that probably any country has done to itself in recent living memory”.

“I respect the decision taken, but it [Brexit] is an act of economic, diplomatic, political and legal lunacy. Brexit reflects, in my view, a British hubris, a sense in a small part of the community, mostly the older folk, of wanting to return to the halcyon days of empire when Britain was unshackled and could rule the world. It’s an absolute bloody nonsense and everybody knows it.”

Chagos, the NI protocol, the discussion of a Swiss-style agreement are, he believes, “a recognition of that which cannot yet be talked about openly, that Britain has cast itself into a wilderness and something will have to be done”. Change “will take time” but will come, he believes, predicting Britain will have reconnected with Europe within 10 years.

For Sands, law is politics and politics is law. The 1945 UN Charter was “revolutionary” but international justice, as the Chagos case shows, can move slowly.

International law is “always evolving”, he says. Actively involved in that evolution, he was the first to raise the idea of a special international tribunal for crimes of aggression and is a strong advocate for a new international crime of ecocide. Noting Belgium is the first country to incorporate the definition of ecocide into its domestic law, he “strongly hopes” Ireland will push in the EU for proper accountability for international crimes of aggression and ecocide.

“I still believe law can make a difference. I’ve had enough positive moments. I worry about the state of the world, the state of Europe, the state of the UK and yet, in the long run, I’m curiously optimistic.”

There is a but. “The climate change issue is very worrisome indeed, there I don’t know what the law is going to do. The law is dependent on political will, if the political will is not there, the law can’t deliver.”

The story of Chagos shows there are times when the law can deliver. Sands travelled with Elysé and four other Chagossians back to their island home last February, the first time they were permitted go there without a British armed escort. “It was the biggest moment of my life when they touched the soil of their island and got to their knees and prayed. We were all in tears.”

The Last Colony by Philippe Sands is published by Weidenfeld (£16.99)