The International Court of Justice And The Western Sahara
The story is happening in december 1974. At the the request of the U.N General Assembly, the U.N Secretary General asks the International Court of Justice (ICJ) located in The Hague (Netherlands) to give an Advisory Opinion on the Western Sahara issue by answering two questions :
1. Was Western Sahara (Rio de Oro and Sakeit El Hamra) at the time of colonization by Spaon a territory belonging to no one (terra nullius) ? and 2. What were the legal ties between that territory and the Kingdom of Morocco and the Mauritanian entity ?
On October 16th, 1975, the Court delivered its advisory opinion which came like this :
" With regard to Question I, "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?",
- decided by 13 votes to 3 to comply with the request for an advisory opinion;
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain was not a territory belonging to no one (terra nullius).
With regard to Question II, "What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?", the Court
- decided by 14 votes to 2 to comply with the request for an advisory opinion;
- was of opinion, by 14 votes to 2, that there were legal ties between this territory and the Kingdom of Morocco of the kinds indicated in the penultimate paragraph of the Advisory Opinion;
- was of opinion, by 15 votes to 1, that there were legal ties between this territory and the Mauritanian entity of the kinds indicated in the penultimate paragraph of the Advisory Opinion ".
- decided by 13 votes to 3 to comply with the request for an advisory opinion;
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain was not a territory belonging to no one (terra nullius).
With regard to Question II, "What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?", the Court
- decided by 14 votes to 2 to comply with the request for an advisory opinion;
- was of opinion, by 14 votes to 2, that there were legal ties between this territory and the Kingdom of Morocco of the kinds indicated in the penultimate paragraph of the Advisory Opinion;
- was of opinion, by 15 votes to 1, that there were legal ties between this territory and the Mauritanian entity of the kinds indicated in the penultimate paragraph of the Advisory Opinion ".
That's it.
This is the exact ICJ Opinion on the Western Sahara. But that's half (or three quarters, depending on your position on the conflict) of the cup...the court completed its opinion quoted above by a "penultimate paragraph of the Advisory Opinion" that explains the nature of the ties between the Western Sahara and Morocco and Mauritania. So here is that juicy part fully quoted again :
" The materials and information presented to the Court show the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Court's conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory ".
In the war of arguments that characterizes the Western Sahara conflict, both Morocco and the Polisario try to use the ICJ decision to their favor. Morocco holds on to the decision itself which recognizes the existence of legal ties between the kingdom and the territory of Western Sahara. Morocco further relies on the first part of the explanatory paragraph which recognizes the existence of legal ties of allegiance between the Sultan (King) of Morocco and some sahrawi tribes. On the other hand, Polisario uses the other part of the explanatory paragaraph which doesn't recognize the existence of Moroccan sovereignty on the territory and aknowledge the right of self determination of the peoples of the territory.
The same thing happens with both parties supporters. Don't be surprised when reading about the subject if you find that the original text of the ICJ Advisory Opinion is largely cut to reflect only one position or to try to influence readers.
posted by StudentintheUS @ 7:06 AM
34 comments
34 Comments:
Whatever may be the arguments advanced by the two parties or their supporters, the most important part of the ICJ's ruling is the CONCLUSION, which reads as follows:
"On the other hand, the Court's conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory ".
The conclusion affirms two things:
1. There were no ties of sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.
2. The applicability of GA resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.
In a nutshell, Morocco has no sovereignty over Western Sahara (that's why no country has recognised its annexation of Western Sahara), and the people of the territory have a right to self-determination to be exercised in a free and genuine way (that's why the UN has always reaffirmed this right).
The excerpts you mentioned are clearly quoted in the Post. However, what doesn't exist in the ICJ Advisory Opinion is the designation of the "penultimate paragraph" as a CONCLUSION. The ICJ clearly mentioned that the "penultimate paragraph of the Advisory Opinion" explains the Court's Advisory Opinion that there are legal ties between Western Sahara and Morocco and Mauritania. The ICJ didn't call it a conclusion, a summary or consider it as being the Advisory Opinion itself. Please read again the original of the ICJ decision (link in my post) to understand that.
Now, if we start calling the "penultimate paragraph" the conclusion, or quoting short and incomplete sentences, then we start interpreting the ICJ Opinion and trying to lean it towards a specific direction, as I mentioned at the end of the Post.
studentintheus,
The Polisario view that the Western Saharans are entitled to self-determination and a referendum on independence is based on the WHOLE advisory opinion. The main reason that the Polisario view is right is precisely because it doesn't "cut" and pick out those parts of the ICJ ruling that suits it. And the Moroccan view is wrong precisely because it does selectively interpret what is a very straightforward ruling. And then of course the UN Security Council and General Assembly have always interpreted the ICJ opinion to mean exactly what the Polisario says it means.
My point is that you are wrong that "The same thing happens with both parties supporters," that both sides selectively take the parts of the opinion that suit them. Only Morocco does this because the opinion as a whole clearly supports the Polisario's case.
Chasli,
As I have the advantage of not being bound by the "interpretation" of Polisario or Morocco either for the ICJ Advisory Opinion or for other UN decisions as well, I will rely solely on my knowledge of English, i.e, the ICJ says that there are legal ties between the Western Sahara and the Kingdom of Morocco as well as with Mauritania. On the other hand, the ICJ says that there is no tie of sovereingty between Morocco and the Western Sahara territory whose peoples (used in the plural) are entitled to the right of self-determination. Easy English.
It's a bit rich that you would accuse Chasli of quoting dishonestly after that little exercise in forced naïveté. What part of "not" is it that you pretend not to understand?
The ICJ clearly says that there are ties of the kind indicated in §162 ("the penultimate paragraph" in the summary). And in that paragraph, they unambiguosly specify that the ties in existence DO NOT affect the free exercise of self-determination.
In real easy English:
QUESTION: Does Johnny have a fotball?
ANSWER: Sure Johnny has a ball. But it's not a football, it's a basketball.
The court has accordingly concluded that Johnny does have a ball, which is of the kind described in the sentence above."
Alle,
First, I didn't accuse anybody of dishonesty. I described a fact: people who quotes only excerpts from the ICJ instead of the whole decision. Any accusation came from your mind not mine.
Second, there was no exercise of "forced naivete", but a presentation of the full Advisory Opinion of the ICJ. I call that a small research, unless you have a problem with people knowing about other parts of the ICJ Opinion...but that's your problem.
Third, I clearly quoted and added Bold character to the court statement about the right of the people(s) of Western Sahara to self determination. You don't need to create counter arguments to a problem that doesn't exist.
Fourth, again, the court stated clearly that there are allegiance ties between SOME sahrawi tribes and the Moroccan throne. Your analogy with basket and foot-ball is completely displaced. We are talking here about a territory with humans living in it, not sport balls. In fact, as a follow up to that idea, one of the core obstacles of solving the Western Sahara conflict is not the referundum or Algeria, or any other subject, the core problem is the inability and the refusal of Polisario and Morocco to fully recognize the existence and the legitimacy of Sahrawis who are loyal to the other party. The fact that both parties don't acknolwedge that fact, which is reflected in the ICJ Advisory Opinion, makes that conflict one of the most complex political issues in the world.
StudentintheUS,
Saharawis acknowledge the existence of those who are loyal to Morocco. I'm one of them and have no problem with the Polisarians.
BUT, I agree that all should be allowed to have a say through......YES, A REFERENDUM, that Morocco doesn't seem to like.
Those pro-Morocco, like me, can then vote for INTEGRATION !!!!
Larbi -- That's the best thing I've heard all day. What bugs me isn't that Sahrawis aren't independent, I don't care much about that. It's that they -- as the ONLY people in post-colonial Africa -- have been denied the right to chose for themselves.
Studentintheus -- Yes it is reflected in the ICJ opinion that there are different kinds of people in the territory, and that Morocco had sovereignty ties with some of the northernly Tekna tribes (but not with other Tekna tribes, or with the Reguibat Lgouacem confederation, the Reguibat Sahel confederation, Izerguiyine, Ouled Dlim, Ouled Tidrarine, etc, etc, etc -- it's also a question of majority/minority). That's why they, completely unambiguously, say there must be a free and fair exercise of self-determination, so it can be democratically decided who gets their way. It's not about tribe, it's about every individual's right to be part of a self-ruling political community.
What I have a problem with is that you tried to make it out that it is "unclear" whether the ICJ says that self-determination should prevail or not. It can't get any clearer: they say, in the conclusion, that it should.
I think it is good that people take the time to defend international law, but I am not too sure I understand why this discussion keep arrising over and over again.
The ICJ ruled that legal ties existed between Morocco and some Saharawi tribes, but not of "such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory".
This is furthermore not *only* the opinion of the ICJ. It is the opinion of the UN and the international community, and also the reason for that no country has recognized Moroccan sovereignity over Western Sahara.
It would be nice if the Moroccan state some day entitled its people to discuss this question in an open manner, and for example stopped teaching students in school that the ICJ ruled in favour of Moroccan rule over WS.
With a clear and open discussion, the good arguments would most likely win and this sad conflict would come to an end - granting the Saharawi people their right of selfdetermination.
Laroussi,
This is why I published the ICJ Advisory Opinion on Western Sahara. So as EVERYBODY read exactly what the Court had said about the issue.
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it is unfortunate that the international court of justice and its resolution about the future of Western sahara is mentioned again and again, as if the court 's recognition of the existence of legal and historical relationship between the Western sahara region does not seem to be accepted and approved by those who keep arguing the court's decision.
It is a fact of life that the Sahrouis were in the past centuries and still remain nowadays Moroccan citizens , even those who have opted to join the Polisario front , their parents and ancestors recognize their Moroccanity , and furthere more some of them serve in the Moroccan liberation army which fought for decades the spaniards .
In my view those who are not ahappy with the court decision are invited to look into historical dfocuments which prove this long standing relationship withthe inhabitants of the sahara and the central government of Morocco
WHY THE TRUE FACTS MATTER
An answer by Moulay Ahmed Maalainin
Journalist/ researcher
To « Why the facts matter » a response by the Saharawi
Journalists and writers Union
To “Why the Maghreb matters” a policy report by the
Potomac Institute and John Hopkins
University SAIS
INTRODUCTION :
On the 31st of March 2009, the Potomac institute for policy studies and the conflict management program the Johns Hopkins University (SAIS) has published a 15 page report entitled: “Why the Maghreb Matters: threats, opportunities, and Options for Effective American Engagement in North Africa”, the introduction of such report reflects the importance of the Maghreb region to the United States of America. The first paragraph of the introduction points out the main concern of the Americans, and their priorities: “The Maghreb matters to the United states for reasons ranging from its strategic geographic position on the Mediterranean and at the western end of the Arab-Muslim world, to the threats posed by the increase of terrorism in the region, to the economic opportunities and resources it offers the US. The US needs a policy to promote American interests in the area by treating the five North African states as a region and working to strengthen the economic and security ties among them – and with the US and Europe- and by taking the lead in promoting a resolution to the Western Sahara region conflict based on the proposal of autonomy within Moroccan sovereignty now on the table at the United Nations (UN) and supported by a bipartisan consensus in the US congress.”( see Why The Maghreb matters 31 March 2009/Potomac institute for policy studies)
Within few days, and exactly on the 5th of April 2009 the Union of sahraoui journalists and writers responded in a 10 page report entitled “Why the facts Matter” expressing its frustration to the report mentioned above “the Saharawi journalists and writers Union (UPES) would like to express its indignation and frustration with the recent publication of a biased, un-factual, and patronising report entitled “why the Maghreb Matters” (see why the facts matter/The Sahraoui Journalists and writers Union/ 5 April 2009)
Although differences of points of view are perfectly acceptable when it comes to disputes and conflicts, but the fact of the matter is that defending the thesis of the Polisario front at the expense of the historical reality, and the true facts of the conflict is not acceptable at all , as the aim of this response basically to the 10 page response of the Union of Sahrawi journalists and writers is to provide the Maghreban /Arab/and international opinion public the truth and the whole truth surrounding the Western Sahara region conflict .
The process of decolonisation of Moroccan territories and the Western Sahara issue
The process of decolonization of Moroccan territories which were occupied by Spain took place through negotiations; in this respect Morocco regained the north zone in April 1956, Tarfaya and Tan Tan in 1958, Sidi Ifni in 1969, and the Western Sahara region in 1975 .It is not by chance that the general assembly resolutions adopted in 1965 and 1968 confirming the right to self-determination refer not only to the inhabitants of Sidi Ifni, but also to those of Western Sahara. In fact the UN recognize two different decolonization problems, that of territories which at the time of colonization had no international juridical status to which the procedure providing for self-determination and independence applies, and other territories constituting an integral part of state, this is clearly the case of Western Sahara as the international court of justice in the Hague expressly recognized that Western Sahara was not a territory without a master but one over which Morocco exercised its sovereignty “ ….. That at the time of colonization of Western Sahara by Spain, the Cherifian state had a particular character is certain. The particularity lay in that in hat it was founded on the religious link of Islam which united the populations, and on the allegiance of the various tribes to the sultan through the intermediary of their caids or sheikhs , more than on national territory” ((4) see international court of justice /advisory opinion 16/10/75) . From the Moroccan point of view regaining Western Sahara in accordance with the treaty of Madrid of 14 November 1975 has marked the end of a continued struggle that lasted over a century .the treaty in question created tension in the northwest of Africa. The Algerians blamed Morocco for not recognising that the sahraouis had the right to make their own decisions. What the Algerians did not appear to realize was that the entire Moroccan population, including sahraouis, had been fighting for the return of the Sahara since 1884, when Spain laid claim to the area, and since gaining the incomplete independence in 1956; Morocco had continued the fight for unity and territorial integrity.
The legal ties between Western Sahara region and the kingdom of Morocco were actually recognized in the treaties which took away Moroccan independence. These treaties are the basis to assess the ties that always existed between Western Sahara region and the Kingdom of Morocco. To start with, there is the Anglo-Moroccan agreement of 13 march 1895, clause I of which reads as follows: “If this government buys the building etc…in the place above – named From the above-named company, no-one will have any claim to the Lands that are between Wadi Draa and cape boujdour, and which are called Tarfaya above-named, and all the lands behind it, because all this belongs to the territory of Morocco”
Great Britain thus recognized that Moroccan territory extended to cape boujdour, including SEGUIA AL HAMRA. Moreover, the letters annexed to the treaty of 4 November 1911 signed between France and Germany, state: “Germany will not intervene in any special agreements which France and Spain may think fit to conclude with each other on the subject of Morocco comprises all the part of northern Africa which is situated between Algeria, French west Africa and the Spanish colony of Rio de Oro (wadi dahab)”.
The Alaouite dynasty has ruled Morocco since the mid-seventeenth century. In pre-colonial times, three of the Alaouite Sultans: Moulay Rachid, Moulay Ismail, and Moulay Hassan, were already pursuing active Saharan policies. In 1905-1906, Sultan Moulay Abdul Aziz sent military support to sheikh Maouelainin to support him in his fight against the French. Morocco continued the struggle against its division and occupation at the beginning of the nineteenth century. Moroccan resistance on the central government as well as the popular level, prevented the entire occupation of Western Sahara and the rest of Moroccan territory until the beginning of the last century, when this became unavoidable. However, the fight continued in different forms and finally led to the recognition of Morocco’s independence in 1956. The Moroccan Spanish declaration of 7 April 1956 and one signed with France on 2 march of the same year, contained confirmation of Spain’s desire to “respect territorial unity guaranteed by international treaties” and the commitment to “take all necessary steps to put this into effect” . In the same year the Moroccan army of liberation started organizing guerrillas for an offensive against the Spanish at Ifni, and Western Sahara region. In 1957, the Moroccan Liberation army succeeded in pushing the Spanish back to the coast. It was only with the aid of French troops that Spain was able to re-establish itself in Western Sahara.
After Morocco independence late King Mohammed V formally claimed Western Sahara as an integral part of the Kingdom. In 1957, he set up the “direction des affaires sahariennes et frontalieres”, and on 25 February 1958 he formally demanded the return of Western Sahara to the motherland Morocco. He said in a famous speech in the little oasis town of M’hamed on the edge of the Sahara: “we will continue to do everything in our power to recover our Sahara and all that which, by historical evidence and by the will of its inhabitants, belongs as of right to our kingdom”
Late King Hassan II’s initiative in organizing a peaceful march to the Sahara, in November 1975 led to the Madrid agreement of 14 November 1975, it was in practical terms, the first step towards the process of decolonization of the west Saharan territories.
The green march (Al Massira al khadra in Arabic), could be described as the master stroke which resolved the dispute between Morocco and Spain. Plans for the march, which was named after the holy colour of Islam, were first announced by King Hassan II on 16 October 1975.recruting offices were set up throughout morocco, and by 20 of October as many as 524,000 volunteers were said to have registered. The march caught the imagination of the Moroccan people. It was portrayed as a holy march , and its participants were told that they would be armed only with the coran and they should consider themselves as Mujahidin, or holy warriors, in a campaign to reclaim Islamic territory from the Spanish invaders. The marchers numbered 350,000 volunteers and gradually assembled in a vast tent city near Tarfaya .It became evident to the Spanish government as much as to western observers of this remarkable mobilization, that King Hassan II would be unable to call off the march or fail in his pledge to send the marchers across the border even if he had wished to do so , he said : “ I can not turn 350, 000 Moroccans who have responded to my call with enthusiasm into 350,000 frustrated Moroccans”.
As soon as Spain accepted the reopening of negotiations, on 9 November 1975, late king Hassan II ordered the marchers to return to their homes. On 14 November 1975, an accord was signed in Madrid to crown the negotiations with Spain by Morocco and Mauritania, in accordance with article 33 of the United Nations charter, and resolution 380.The difference of opinion over Western Sahara which, until 1975, divided Morocco and Spain does not therefore date from the time when the United Nations organization took an interest in the issue. It dates back to the period in morocco’s history when, during the nineteenth century, the country was faced with the ambitious appetites of the colonial powers and their desire to divide Morocco in order to subjugate it.
King Mohammed VI, immediately after his enthronement in 1999, set forth a development strategy built on social and economic development. Initially, the new young King is seen as a reformer, keen to liberalize the economy, root out corruption and establish the rule of law and democracy. When he was crown prince he was beside his father late king Hassan II in most the national and international activities, and in particular when it comes to the Western Sahara region issue. In this respect during summer of 1996 a delegation of the Polisario front led by Bachir Mustapha Said met the crown prince then Sidi Mohammed, that was in practical terms his first direct and secret meeting with the Polisario delegation in Morocco, the aim of the meeting was about the application of Autonomy principle in western Sahara, in fact the Polisario delegation was to a certain extent in favour of such settlement and also of continuing direct negotiations with the late king Hassan II
The sahraoui Arab Democratic republic
The “SADR” is a contradiction with the request by Polisario front for a referendum on self-determination. the unilateral proclamation by Polisario of the SADR is a violation to the international law, particularly that the sahraoui Arab Democratic Republic has no territorial existence, it is set up in Tindouf inside Algeria territories, it has no attribute of sovereignty, and exists only on the territory of a foreign country. As to the recognition of the “SADR” no European country, no Arab and Muslim country apart from Algeria recognizes the “SADR”. An imminent figure of the Polisario front Mustapha Bouh ( who went back to Morocco), admitted the following “we must be clear that the diplomatic campaign was a relative failure in the Arab world and in the Middle East, the Polisario and the SADR were very weak, not even Yasser Arafat wanted to have relations with us, nor did China ….. the majority of the capitals that were to be opening diplomatic relations with SADR were doing under the friendly and insistent pressure of Algeria ( see interview with Mustapha Bouh , 5 august , 2005 with ESISC) .
As to the number of countries which actually still recognized the “ SADR” is 27 countries after the withdrawal of the recognition of at least 52 countries , among others : Angola, Ghana, Iran, Syria, Peru, Nigeria, India, El Salvador, Kenya (source:http://www.worldstatesmen.org/western_sahara.html)
Algeria an Obstructive party to the conflict
One aspect of the present deadlock is basically a result to the Algerian non commitment to its explicit statement, which says that it does not consider itself as part of the conflict. Facts on the ground show unfortunately that Algeria is the main and strategic supporter of the non elected and non democratic Polisario.
In his report of 19 February 2002, the former secretary general of the UN Kofi Anan informed the security council on the visit of the Algerian president to Houston on 2 November 2001during which he told the UN secretary general personal envoy James Baker that Algeria and the Polisario are ready to discuss and negotiate the splitting of the territory as a political solution to the dispute over western Sahara. This initiative proves Algiers direct involvement in the conflict .In addition, Algeria continues under the leadership of Bouteflika to exert a direct control on the refugee camps, particularly by strictly controlling and limiting the movement of sahraoui refugees. Algeria and its president should be held responsible for the non-implementation of the convention on the refugees’ status of 1951, by virtue of which any contracting state, which is Algeria in the case of sahraoui refugees on its soil, gives the refugees living regularly in its territory the right to choose to remain, or to move freely.
In the 28 February 2006 Algeria took part in the festivities of the Polisario for the 30th anniversary of its creation, there is no doubt that Polisario would not organize such a big military parade in Tifariti without the approval of the army approval. For the same occasion Bouteflika seized the opportunity to send a message to the leadership of Polisario where he described Morocco being “the colonizer country”.
When it comes to the recent developments concerning the Moroccan substantial autonomy proposal. The secretary general personal former envoy for Sahara Van Walsum stated (in his press conference at the headquarter of the UN, after presenting his report to the UN chief) that the Moroccan proposal to grant substantial autonomy to the western Sahara “was the result of an extended political process of national and international consultations” .As to the role of Algeria in the conflict Mr Walsum recognized the pre-eminent role of Algeria, “Algeria has in this whole dossier (Sahara issue) played an absolutely pre-eminent dominant role ever since1975” this is the third time that a senior UN official dealing directly with the western Sahara issue that recognized in a diplomatic Worthing to what extent the Algerians are directly involved in the western Sahara dispute ,and even in the decision making on behalf of the separatist movement called Polisario
During the last decade a number of Algerian politicians, and even former policy makers and military generals have expressed openly their total disagreement with Boutaflika’s politics towards the future of western Sahara .Anouar Haddam one of the leaders of the Islamic Salvation Front told “ALKHABAR” a daily Algerian newspaper “ Sahraouis would never agree to separate themselves from Morocco” . Louisa Hanoun the general secretary of the Algerian labour party said “the western Sahara issue is an artificial problem” she added “Morocco is the only Maghreban country that is facing external plans ton split its territories”.
The former Algerian prime minister Abdelhamid Ibrahimi, insists that the leadership of the army is behind the dispute over western Sahara dispute, in his latest interview with the daily newspaper “ATAJDID” on the 12 December 2006 he said “the autonomy plan was discussed when I was prime minister with president Benjdid, provided that Morocco preserves its sovereignty over its territory, including foreign and defence policies. The agreement was made, and president Benjdid did not refuse”
When it comes to the army leadership it is worth mentioning that the former general and defence minister Khalid Nezar advocates a political solution to the conflict, he said “the settlement of western Sahara conflict should be achieved through the application of such substantial autonomy as proposed by king Mohamed VI”
It seems that although the political leaders and most of the former generals of the Algerian army are explicitly against their president’s policy towards the Sahara, Bouteflika is determined to follow the instructions of the generals with the aim to achieving the strategic goals as seen by the Algerian army intelligence leadership which have nothing to do with the wellbeing of sahraouis
Morocco’s autonomy plan as a practical solution to the conflict
On Wednesday, April 11, 2007 the Moroccan government submitted its proposal for a substantial autonomy for the Western Sahara region to the newly nominated secretary general of the United Nations organization, taking the first step, which the international community has called for repeatedly, toward a political direct dialogue with the parties concerned i.e. : Algeria and the Polisario front.
The conflict between the Kingdom of Morocco, and the Algerian-backed Polisario front, dates back more than three decades. From 1975 until an UN-brokered cease-fire agreement in 1991.
The terms of 1991 cease-fire agreement were not fully met until august 2005, when the Polisario, under pressure from the international community released the over 400Moroccan prisoners of war. During their very long capture the Moroccan POW’s faced barbaric torture, and forced labour from both: the Algerian and Polisario military intelligence services. On April 2003, the France libertés foundation led an international mission of inquiry on the conditions of detention of Moroccan POW long held in the refugee camps in Algeria, the French foundation produced detailed accusations of torture, forced labour, arbitrary detentions, and summary executions of captured soldiers, that revealed the true nature of the Polisario front, which had long portrayed itself as a victim.
Allowing the sahraoui people to vote on a referendum seems like a simple solution, but the Polisario had insisted on restricting the voter lists locked that process into more than six years of fruitless discussion. The UN became aware of the fact that referendum is in practical terms impossible to carry out since sahraouis do not live only in Morocco, but also in Algeria, Mauritania, and Mali. This means simply that there should be a change of these countries borders, in order to organize a just and fair referendum, since the countries concerned would totally reject the idea, the general secretary of the UN confirmed that the organization of such referendum is impossible politically and technically.
Recognizing this deadlock, the UN shifted its approach to encouraging direct negotiations between Morocco and the Polisario. Even if the idea of autonomy is not new, The Moroccan Proposal for substantial Autonomy is the first, and the only practical proposed framework for a political solution, and from it the two sides can craft a final agreement. It preserves Moroccan sovereignty, but gives the Western Sahara sufficient autonomy to become effectively self-governing. The project consists of giving Western Sahara a substantial autonomy within Moroccan sovereignty. According to the autonomy proposal sahraouis will have an elected regional parliament, with power over local policies in terms of management, and decisions, and president of a local government, the right to create local laws, as long as they do not contradict Morocco’s constitution, regional judiciary to rule regarding local laws, and control of local police, schools, economy, infrastructure, taxation and housing. The Kingdom of Morocco would control external defence and foreign relations, national judiciary, religious affairs, with King Mohamed VI as the highest religious authority.
The Moroccan proposal is an answer to the UN Security Council resolution and to the constant international community appeals for a political solution to the Western Sahara issue, as it is a fruit of national and international consultations. The King Mohamed VI supervised closely the process of drawing up such a proposal that guarantees peace, security, and stability in the region of North Africa on one hand, and gives the Western Sahara sufficient autonomy to become effectively self-governing on the other hand. The UN charter, the ultimate international jurisprudence stipulates that self-determination must take into account the territory integrity and unity, so autonomy remains one of the best solutions for self –determination, this type of substantial autonomy exists in the most highly developed countries across the world.
The philosophy behind the Moroccan proposal is that Sahraouis claims will be satisfied, and Algeria will keep its dignity, provided Morocco remains sovereign over its southern territories .
Although both Algeria and Polisario refused the Moroccan proposal, before it was submitted to the UN, and even before finding out about the content of it .the secretary general personal former envoy for Sahara Van Walsum recognized ( in his press conference at the headquarter of the UN , after presenting his report to the UN chief) the role of Algeria in the conflict “Algeria has in this whole dossier (Sahara issue) played an absolutely pre-eminent ,dominant role ever since1975” this is the first time that a senior UN official dealing directly with the western Sahara issue that recognized explicitly in a diplomatic Worthing the extent of Algerians direct involvement in the western Sahara dispute ,and even in the decision making on behalf of the separatist movement called Polisario while Algiers keeps insisting that “it is not a part in the conflict”.
The conflict impede the construction of the Arab Maghreb Union (UMA), hindering any form of agreement between the neighbouring countries, while keeping sahraoui families from returning home to live among their own .It also created a center of tension in the north west of Africa encouraged by the proliferation of human traffic, in particular in the form of clandestine immigration, weapons trafficking, drugs, the deviation of goods in the camps as well as the appearance of terrorism.
The UN charter, the ultimate international jurisprudence stipulates that self-determination must take into account the territory integrity and unity, so autonomy remains one of the best solutions for self –determination, this type of substantial autonomy exists in the most highly developed countries across the world
THE LACK OF DEMOCRATY AND VIOLATION
OF HUMAN RIGHTS IN TINDOUF REFUGEE CAMPS
The lack of real democratic practices in the refugee camps in Tindouf reflects undoubtedly The manner of arbitrary arrest were carried out, according to “an independent committee of inquiry into allegations of violations of human rights, crimes, abuses and various other irregularities brought against the Polisario front” some victims were brought to the polisario’s administration complex at Rabouny, not far from Tindouf, or to the offices of the polisario military security. They were then transferred in secret to places of detention and torture, mainly to Rachid prison, known within sahraoui refugees as the black prison. Others were arrested at work, during their military training, or in their camps.generaly speaking the victims of arbitrary arrest were transferred to Rachid prison in early evening or at night, hands tied behind the back, eyes blindfolded or the whole face hooded to prevent recognition of their captors or the place they were being taken, at this particular stage detainees were not informed of the charges against them.
During the last three decades torture was used by the military services of the Polisario with the aim to forcing detainees to confess to being agents to foreign countries, or involved in any forms of conspiracy. According to the independent committee of inquiry into violations of human rights by the Polisario, it is in possession of a detailed list of 43 people who died under torture, or as a direct consequence of the ill-treatments suffered. This list needs to be completed, and up dated as the figure seems to be higher than what it is disclosed. A number of witnesses who fled to Morocco described the phenomenon of “summary executions” without any legal procedures, detainees who were spared from being executed, were not informed of their conviction or any charges. They were in most cases subject to forced labour, during the period of torture, prisoners could easily experienced days without food. Medical care is in practical terms inexistent.
THE DIVERSION OF HUMANITARIAN AID
Sahraoui refugees in the Tindouf camps depend on humanitarian aid donated by
Numerous UN organizations, in addition to international non-governmental
Organizations. It is believed and even proved that much of the humanitarian aid does
not reach the refugees, instead it is In most cases sold on the black market in
neighbouring countries by the Polisario. In this Respect the international community
have called in numerous occasions for the Implementation of a census, and an audit
system to make sure that the management of the Humanitarian aid is transparent. Both
Algeria, and Polisario has refused to allow independent Oversight of its management of
humanitarian assistance. Important quantities of diverted International humanitarian
aid sent for refugees in Tindouf camps have been found on the Markets in Algeria, and
Mauritania, but also in Mali and Niger, some still in their original Packaging. The sums
recovered would be used to finance the front, and also its leader’s way Of life, at the
expense of sahraoui refugees. These diversions according to the report of the US
Committee for refugees published in year 2000 “Humanitarian workers have reported
that more than 30% of the children from 5 to 12 years old were underfed, more than
70% of the Children of less than 5 years old suffered from anaemia”, in its 2001 report
the committee announced “more than 15000 children are in need of shoes”, and finally
in its 2003 report, its Said “some donors in private, have asked for a control of the
distribution of food to Make sure that the political and military leaders were not
diverting the aid”
HUMAN RIGHTS ASPECTS AND ITS CONSEQUENCES
The Polisario is severely accused of human rights abuses : the detention, killing ,and the abuse treatment of Moroccan prisoners of war from late 70’s to 2006, other accusations are that a big number of sahraouis are kept in the Tindouf camps against their will, and do not enjoy freedom of expression. In a report published in 2003; Amnesty International concluded that “freedom of expression, association, and movement continued to be restricted in the camps controlled by the Polisario near Tindouf in south western Algeria”.
The Polisario remains a totalitarian military and political movement, with single party system, from inside the Polisario reports are talking about more than 6000 sahraoui children, and adolescents are currently living in Cuba, in most of the cases against the will of their parents, and under the pretext of schooling, some of them are subject to obligatory military training.
A full and comprehensive report of an independent committee of inquiry into allegations of violation human rights, crimes ,abuses ,and various other irregularities brought against the Polisario front, was submitted to the special political and decolonisation committee (fourth committee) of the United Nations on the 4th of October 2006.This 40page documented report deals with the following aspects:
• The condition of detention, the use of torture, the absence of even the minimum level of judicial process, malnutrition of prisoners, and the absence of medical care.
• Forced labour , rape ,and The abdication of Moroccan citizens within the international recognized frontiers of Morocco
• An education system more concerned with indoctrination than learning-Allegations of deportation of sahraoui children to Cuba
• Allegations of misdirection of humanitarian aid by the leadership of the polisario
• The separation of families.
Freedom of movement
To make sure that Sahraoui refugees, whether they are free or not to leave the camps in Tindouf Human rights Watch interviewed tens of Sahraouis , and asked them questions such as whether they used the official border crossing or took a clandestine route ; whether they told others of their plans or intended destination . according to the latest report of Human rights watch, of December, 2008, under the title “Human rights in western Sahara and the Tindouf refugee camps” former camp residents now living in western Sahara region confirmed that when they left the camps they concealed their ultimate destination, fearing that Polisario would block their departure if it became known"(human rights report , december , 2008) these same individuals for the most part said they kept their plans secret from others in the camps. They said they did so not only out of fear that the Polisario might prevent them from leaving, but also because the prevailing feeling in the camps is that is shameful to opt for life " under Moroccan occupation" "They taught us to hate Morocco from when we were young, that the Moroccans would torture and mistreat you" said a former Polisario official who left the camps by the end of 2006 and settled in Al-Ayoun , and this is how he left according to a statement he made to Human rights watch : " I left my wife , child, and six other relatives , in a truck . The owner of the truck is an officer in the security forces. When we reached the border post, he talked to the guards, and there was no problem; my parents and brothers are still in the camps, they have suffered no reprisals, because we left. The authorities came to my father and asked where i went, and he answered Mauritania, and that was it. (human rights watch interview, El –Ayoun, march 8, 2008 . The source asked to remain anonymous, fearing reprisals against family members who where still inn the refugee camps)
Hamra checkpoint, the main Algerian- Mauritanian border point, is a long drive on extremely difficult roads from the main cluster of refugee camps in Tindouf. Polisario and Algerian guards the checkpoint, registering the ID’s of drivers and passengers, sahraouis told human rights watch, if the guards asked the reason for their travel, sahraouis leaving for Moroccan controlled areas have to lie, explaining that they were travelling to Mauritania to visit relatives or for other purposes. The guards then allowed them to pass. Some Sahraoui refugees in Tindouf said that they have to obtain an authorization from the Polisario leadership headquarters in Rabouni camp to leave only to Mauritania; others said they got the approval at the border, provided they mention that they are actually going for a visit to Mauritania.
Yeslim Ould Ismail Ould el-Melkhi, a pharmacist, who left the Tindouf camps in April 2007, put it this way: “ it is pretty chaotic situation in the camps . Everybody is preoccupied with trying to provide for his basic needs, if you want to leave, you just make the necessary arrangements, and you head for the Hamra checkpoint. You show your ID, they write your name down, and they let you pass. They understand the problems that people face in the camps. You must not tell them you are going to Morocco, but otherwise they do not care if you leave “(human rights watch interview with Yeslim ould el-Melkhi, foum el –oued , march 5, 2008)
Abdellah Mala’ainine, who left the camps for Morocco in 2006, also said that leaving was not hard, provided you keep being discreet about your destination: “you keep the fact that you might want to go to Morocco to yourself, otherwise you might be seen as inciting others” ( human rights watch interview with Abdullah Mala’ainine, El –Ayoun , march 5, 2008)
Another possible way to leave the Tindouf refugee camps is the UN –administered program of family visits. This program involves flying Sahraoui families from the Western sahara region to the Tindouf refugee camps and vice versa, for visits lasting five days. According to statistics provided by the UNHCR, the program arranged visits for 6638 sahraouis between its launch on March 2004 and October 3, 2008. Almost half of this total traveled from the Tindouf camps to the Moroccan –controlled territory, had chosen to remain rather than return, according to the UNHCR. (Human rights watch telephone interview with Sergio call- Norena, UNHCR chief of operators for the Western Sahara, may 9, 2008 . Calle- Norena left this post later 2008).
The process of defection from the Tindouf camps and rallying to Morocco started in practical terms at the end of the fighting, hundreds of sahraoui refugees have decided to leave Tindouf and to return to Morocco, among them political and military leaders, head of tribes, and hundreds of Polisario army officers of all levels. This situation, which is due in part to the failure to reach a settlement as well as the realities of the four refugee camps in the Tindouf area, has led to what many Sahraouis denounce as the concentration of power in thee hands of few political stagnation, and lack of transparency , freedom of speech and movement, in this respect the brother of El Ouali Ould Mustapha Sayed, the Polisario’s first secretary general expressed on 31 October 2006 serious misgivings about the current leadership : “ many sahraoui officials alongside of simple soldiers, fled to Morocco because they could no longer stand the chaotic, static, and unjust status quo …. Some even say that this exodus towards Morocco and other destinations suits the Polisario’s leadership and that, in some ways, they encourage it. This because the Polisario’s leadership refuses to change its practices, reviews its policies and positions, or responds to the totality or at least to the majority of its critic’s claims”( see “arretons l’hemorragie” at www.arso.org/opinions/baba Sayed38.htlm)
Due to the increasing number of Sahraoui refugees who decided to go back to Morocco after an over three decades of sufferings, and making use of the late king Hassan ii appeal “the homeland is clement and merciful”. Polisario has prevented the Sahraoui populations from fleeing the four Tindouf refugee camps, following an order issued by their leader Mohammed Abdelaziz, during November 2007. According to the European committee in charge of the Western Sahara issue, this blockade was ordered by Abdelaziz on the pretext that “if the return movement to Morocco continues at the current pace, the camps will be emptied”
Although the Polisario is making sure that no refugee is allowed to flee the Tindouf camps particularly to Morocco, it seems that the number has increased over the five years or so , in this respect it is worth mentioning the following among others , as nearly one hundred Sahraouis have returned to Morocco during the last week of February 2008 to Morocco from Tindouf camps , three groups consisting of several persons that took part in Gjijimat congress held during December 2008 in Tifariti region, in the Sahara, these refugees accompanied with 20 children, arrived in the border town of El Karkrat ( 380 km south of Dakhla), in response to the late Hassan ii call “ homeland clement and merciful”, convinced , according to their statements, that the Moroccan autonomy initiative in he region of the Sahara under Moroccan sovereignty offers promising prospects that meet the aspirations of the region’s people and the consecration of unity and development . Some of these of people expressed their joy and happiness to have returned to the motherland and their support to the autonomy project proposed by Morocco. They said that their return to the motherland is part of the renewal of their allegiance to his majesty king Mohammed vi ( a French- speaking daily “ aujourd’hui le Maroc” reported on Wednesday 27/12/2007)
The number of sahraoui political, military and tribe leaders in addition to hundreds of families who opted to regain Morocco is increasing; according to the Chairman of the royal advisory council for Saharan affairs Khali Hena Ould Errachid around six thousands sahraouis have regained Morocco. Reports coming on daily basis from the Tindouf refugee camps describe the deteriorating social and economic situations in addition to the lack of freedom of expression and movement , in this context the chairman of CORCAS made it clear that Morocco is determined to bring back home all refugees .(see:www.corcas.com)
Western sahara and terrorism
In terms of the Salafi-Jihadists residing in the Maghreb and Sahel region, the prospects for peace in the Western Sahara are viewed as anathema to their goals. As long as Algiers and Rabat are at odds and Morocco is not a member of the African Union, these groups are able to traverse the region with near impunity.
Why Salafis Thrive on the Status Quo?
In October 2004, the African Union established its African Center for the Study and Research on Terrorism in Algiers. In essence, this center is intended to serve as a medium for cooperation among all member states in the continent's fight against its endemic terrorist threat. Since its formation, however, the center has been plagued by a number of deficiencies, not the least of which is its inability to secure an individual to assume the directorship. Aside from the usual troubles the AU has in establishing such centres, the fundamental obstacle is membership. As Kurt Shillinger states, the center's effectiveness is contingent on its ability to build "strong cooperative ties between the center in Algiers and the key states where concerns about terrorism and capacity to respond converge… This requires resolving the conflict over Western Sahara in order to integrate Morocco—the only African state not in the AU—into continental counter-terrorism strategies" (Business Day (Johannesburg), October 7, 2005).
The non-involvement of Morocco is excellent news to the Salafi insurgents operating in the Sahel. Not only is intelligence not being circulated among key interlocutors, such as Algeria and Morocco, but these same countries would remain unlikely collaborators in counter-terrorism operations. This point was underlined by U.S. Ambassador for Counter-Terrorism Henry Crumpton when he made a number of very poignant remarks toward the end of his February 2006 speech in Algiers, noting Morocco's absence from the AU and the crucial role the kingdom can play in helping resolve regional security issues.
The Madrid commuter bombings may prove to be the single event that brings about the resolution to the Western Sahara issue. The attacks, perpetrated by North Africans residing in Spain raised awareness—both in Spain and Morocco—of the threat posed to Spain by North African Salafi-Jihadists. In response to this and the almost daily news reports of illegal North Africans migrating to Spain from the Western Sahara, Madrid will likely advocate a just and widely acceptable solution to help stabilize its southern border.
Although close cooperation between Algiers and Rabat cannot be assumed initially, a widely acceptable Western Sahara resolution will significantly contribute to a thawing of relations between these two capitals. In any case, Maghrebi security is certain to be the primary beneficiary; with Morocco integrated into regional counter-terrorism operations and intelligence-sharing, Salafi-Jihadist groups will be faced with a united front. No longer will they be able to operate across the region's borders with impunity, or access weapons, finances and auxiliary personnel with the same level of ease.
Algeria and to a far lesser extent, Morocco were hard hit by waves of terror attacks carried out by AQIM, al-Qaida in the Maghreb. Developing and promoting stability and security in each country and enhancing prospects for greater political freedoms and broader economic growth will be a n important step towards the fight against terrorism .The issue of terrorism remains vital to the economic and development of the region's future to promote inter-Maghrebi cooperation, trade and unity. With some foresight the leaders of the region should seriously look into launching a 'Benelux' type model that would permit the five countries to excel from trade, business, education and even defence.
In 1989 the Arab Maghreb Union (UMA) was created. However, it was frozen in 1994 as a result of diverging political views between Morocco and Algeria over the Western Sahara,
Based in neighbouring Algeria, the Polisario has been at the core of tense relations between the Algerians and the Moroccans. The need to resolve the conflict over the Western Sahara is the key to the door of regional cooperation, and the fight of terrorism which should be eradicated.
CONCLUSION
It is notable that many statements put forward by the report by the
Sahraoui journalists and writers union (UPES) that claim to be
Independent has no basis in history and international law. Therefore I
Would like to remind the members of the Sahraoui journalists and writers,
and particularly those who have written the answer to the report by the
Potomac institute and John Hopkins the following:
1- the Polisario can not be the sole and legitimate representative of Sahraouis , especially
if we take into account that two third of sahraouis live under Moroccan sovereignty and most of them fully support the substantial autonomy project . At the same time , some of those living as refugees in Tindouf, south west of Algeria back the autonomy seeing it a solution that guaranties political , economic and social rights of sahraouis
2- Since the war brought about no solutions, the UN tried to organize a referendum
Based upon identification. Nevertheless the UN became aware of the fact that the referendum is impossible to carry out since sahraouis do not live only in Morocco, but also in Algeria, Mauritania, and Mali. This means that they should be a change of these borders, in order to organize a just and fair referendum is impossible politically and technically.
3- The Moroccan proposal meets international standards, transfers competences, and
Creates local institutions (legislative and executive) within the framework of Moroccan sovereignty, while leaving room for negotiations, it is notable that autonomy is an advanced form of self-determination
REFUGEES AT TINDOUF ARE STILL SUBJECT
TO HUMAN RIGHTS VIOLATIONS ACCORDING TO
SEVERAL H R ORGANIZATIONS
TAOUFIQ GAZOULIT
The latest report about Human rights violations in Tindouf refugee camps in Algeria, produced recently by Human Right Watch triggered again discussion within observers and policy makers and militants in the field of Human rights all over the world .
Several Human rights organizations have expressed concern over the conditions of refuges who are living against heir will in such harsh area in southwest Algeria. In this context the
Secretary General of the United Nations released a report describing the situation in the region. His report mentioned that there had been reports that humanitarian aid to the region was being hindered and that the absence of food stocks since 2006 was and still is a major and growing concern.
On December 12, World action for refugees, a Norwegian Human Rights organization released a report which denounces human rights violations in the region. The report insists that the Sahraoui refugees are subject to inhuman living conditions, and wondered if they will be allowed at all to return home in the Sahara region, called western Sahara.
The report in question confirmed that the refugee camps in Tindouf are completely dependent on humanitarian aid and that the people were denied the rights of freedom of movement, expression and even association
As to the most recent report on the Human rights in the region released by Human Rights watch (19 December , 2008) condemned the suffering and humiliation experienced by those living in the Tindouf camps and expressed a commitment a commitment to open dialogue in hopes of peace in the region;
Regardless of the future status of he ongoing Algerian Moroccan conflict over the Sahara thousands of civilian sahraoui refugees need immediate humanitarian help, according to the international law not only the leadership of Polisario front , but also the regime in Algiers have to ensure the safety and well being of he refugees ; International refugee laws are clear : since Tindouf is on Algerian land , thousands of refugee living in the area should be allowed to choose to stay put in camps , or to apply to the United Nations UBNHCR to go back to their homeland and families
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