Issue 4, Spring 2016
Western Sahara Review
Revista del Sahara Occidental
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Western Sahara Review promotes the right of the Sahrawis to self-determination.
I t is independent. Its objective is to provide a forum for analysis, debate and information about the Sahrawi struggle. Contributions will include topics in the spheres of political strategy and diplomacy, history, law, economics, and
culture.
Articles published in the review are the views of their authors, who may prefer to remain anonymous to readers but must identify themselves to the editors. They may be written in English, Spanish or French. Once accepted for publication, they will only be edited for style and clarification. The review will be published on an occasional basis.
The intention is that the review's content is original and does not repeat well known positions. It is not an academic publication – although contributions from academics are welcomed – but rather an attempt to provide readers with opinions and information with which to advance the cause of self-determination, a cause that is currently at an impasse. So, articles should be written in a style that is accessible to readers who are not expert in particular disciplines.
Proposals for articles for future editions of the review are welcomed, particularly from Sahrawis living under occupation, in the camps, or in exile elsewhere.
Copyright for the articles and photographs used remains with the originators.
The review is published online free of charge to make it accessible to as many people as possible. In return, readers are asked to publicise its existence to others to ensure that it is widely read and its articles widely discussed.
The contact address for the review is: saharareview@gmail.com
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It is two years since the last edition of WSR was published — too long an absence even for an occasional publication. In that period, the Sahrawis have won some important tactical victories, particularly on the legal front, and two of these are discussed in articles in this issue. These victories are valuable and should be both celebrated and built upon. But, as another contribution argues, the indifference or hostility of key international players means the diplomatic cards remain firmly stacked against Sahrawi self-determination. Meanwhile, the occupying power broadens its attack on the Sahrawi identity in the cultural sphere, and this is discussed in an article below. As this edition was published, the UN Security Council again renewed Minurso’s mandate. The secretary- general’s report bemoaned lack of progress in nine years of negotiations, impediments to Minurso’s very circumscribed operations in the occupied territory, conditions in the camps. Words of frustration from a man unable to force the hand of international powers. There is no prospect of a breakthrough at the UN. Indeed, the US presidential election may well worsen things. But the Sahrawis’ nation-building has never been done in the corridors of power. It has been achieved through successive popular mobilisations behind new strategies. Has the time come for a new strategy?
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How National Interests Trump International Legality
Western Powers and the Decolonization of Western Sahara
By Yahia H. Zoubir & Souadou Lagdaf
F orty-one years after its inception, the conflict over Western Sahara that has pitted
the Sahrawi people’s nationalist aspirations against Morocco’s irredentist claims has yet to be resolved. This conflict is a major source of tensions between Rabat and Algiers, which has undermined regional cooperation and integration efforts. Regardless of numerous UN resolutions calling for a free and fair
referendum on self-determination for the Sahrawi people, the conflict has remained frozen.
While some Western pundits argue that the reasons for the stalemate are a problem of identification of Sahrawi voters or other alleged technical issues impeding the holding of the referendum, we argue in this paper that the influence of external actors is the major obstacle that has prevented a definitive resolution of this protracted conflict. The three primary players outside of North Africa are Spain, France and the US, which each has privileged relations with Morocco that include political, economic, and security interests.
This brief article details the interests of these foreign powers and how their policies trump international legality, prolonging the conflict in Western Sahara, while subtly supporting Morocco’s irredentist claims to the detriment of the Sahrawis’ legitimate
rights. Western support for Morocco’s autonomy plan is no more than a well- concocted subterfuge to legitimize Morocco’s annexation of the former Spanish colony.
Geopolitics as impediment to resolution
In spite of their public discourse on human rights, international law, and democracy, the policies of the powers external to the Maghreb region do not abide by these principles when it comes to Western Sahara for reasons that trump any consideration for international legality, let alone justice. The resolution of the conflict lies in Washington and Paris and not at the UN in New York. Having failed or rather been unwilling to allow the holding of a referendum on self- determination as inscribed in UN resolutions, they have favored the option of autonomy that would permit Morocco to incorporate the territory it has illegally occupied since 1975. In order to understand the non-resolution of this conflict since the 1970s and the stalemate that has prevailed since the mid-1990s, it is necessary to analyze the respective roles of foreign actors in this conflict and to understand the positions and interests of each.
Spain’s swinging policy
As the ex-colonial power, Spain’s responsibility in failing to decolonize the territory is indisputable. Madrid’s policy toward the dispute has been constricted by its wish to maintain
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good rapport with pro-Sahrawi Algeria and with Morocco. Therefore, Spain has adopted a bilateral policy of friendship and cooperation to establish
a balance while seeking to strengthen
political and economic ties with both. Thus, except during the Spanish- Moroccan crisis (2001-03) under the premiership of José Maria Aznar
(1996-2004), Morocco has remained Spain's privileged interlocutor, while relations with Algeria remained
relatively good. Spain has avoided being antagonistic to Morocco owing to the salience of its strategic interests:
the enclaves of Ceuta and Melilla; the dependency of the Spanish and Canary Islands’ fishing fleets in Saharan waters, which required fishing agreements with Morocco; participation in the phosphates mining company of Bou-Craa in Western Sahara; the presence of Spaniards living and working in Morocco; terrorism; and, clandestine migration. While Spain has not recognized Morocco’s and Mauritania’s sovereignty over the territory — it only handed Morocco the ‘administration of the Territory’ under the terms of the Madrid Accords of November 1975 —
it nonetheless signed fishing
agreements with these two countries so Spanish vessels could operate along the coasts of the disputed territory. The
Spanish socialist government of José Luis Rodríguez Zapatero and his foreign minister Miguel Angel Moratinos were the most pro- Moroccan, going against Spanish civil society’s unequivocal support to the Sahrawis. Spain put its relations with Morocco above its responsibility to conduct the decolonization of Western Sahara to its conclusion. Spain no longer wishes to have conflicting relations with Morocco as was the case under José Maria Aznar; Spain truly fears Morocco’s reaction should it show too much support for the
Sahrawis. In fact, as revealed in the Wikileaks cables, Spain favors the autonomy option and thus offered Morocco its services to develop the autonomy plan. Today, Spain is fearful of threats from Morocco to open the gates to illegal migrants into Spain, as it did in August 2014. So, Spain will continue to take cover behind the useless UN-sponsored process of negotiations between Morocco and Polisario to avoid alienating Morocco, while proclaiming its public support for self-determination in order not to alienate its pro-Sahrawi civil society, on the one hand, and Algeria, an important economic partner, on the other.
France: the grandeur de la France nostalgia
Although the US is the power that made it possible for Morocco to invade Western Sahara with impunity and provided it with the necessary diplomatic support at the UN during the Cold War, France is the power that probably played the most critical role in allowing Morocco to hold on to the territory. France’s position has been consistent and politicians on both the Right and the Left have made no secret of their alignment with Morocco, making it plain that France would use its veto power at the UN Security Council, should the UN move to impose a solution that is not acceptable to Morocco. France has a position toward Morocco comparable to the one the US maintains with Israel; France serves as Morocco’s surrogate at the Security Council. In sum, France would exert all its powers to prevent the independence of Western Sahara, which it argues is potentially yet another ‘failed state’ that today could constitute a safe haven for international terrorists. The reality, however, is more straightforward. First, France refuses to
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have an independent state that would — allegedly — fall under Algeria’s influence. Second, it fears a referendum would destabilize the kingdom, and bring down the pro- Western monarchy to which France has provided substantial economic, political and military support. In fact, France sought, partly successfully, to offset the SADR’s diplomatic gains by coercing, through financial blackmail, African countries to withdraw their recognition. Third, Morocco displays more compliant behaviour towards Western interests than Algeria.
There are three additional points that inform France’s position toward Western Sahara. The first two are directly linked to France’s colonial past in Algeria: France has never recovered from the ‘loss’ of its Algerian colony, its biggest colonial prize. France still aims to undermine the old nationalist elite that fought and defeated France and has run the country since independence in 1962. The second derives from a sympathy with Moroccan claims of ‘unfair’ drawing of the borders in favor of Algeria to the detriment of Morocco. The Moroccan establishment argues that France amputated the kingdom during that era and that France should today repair that injustice by allowing Moroccan irredentism and the ‘recovery’ its ‘lost provinces’ regardless of the rejection of those claims by the International Court of Justice. The third point is economic in nature: thousands of French citizens and enterprises are located in Morocco; 25 percent of tourists who visit the kingdom annually are French. France is Morocco’s principal trading partner and main investor with close to 70 percent of total foreign direct investments in the kingdom.
The unwavering French position has — perhaps wittingly — hindered the prospects for Maghreb integration, declaratory statements on the necessity for Maghreb unity notwithstanding. France has always favored a divide- and-rule policy in the Maghreb and the Western Sahara serves as one of its main instruments.
The US and the primacy of security interests
In principle, Washington supports the right to self-determination as guaranteed in the UN Charter, which requires that Spain hold a referendum. But, similar to France and Spain, political, military and economic interests have determined the de facto US position: steadfast support for the Moroccan monarchy, a reliable ally in the Arab world. The US has since 1975 not only sided with Morocco, but was also instrumental in Morocco’s colonization of the territory. The end of the cold war did not result in any major shift in policy. Support for Morocco in the US Congress has remained significant, not least because Morocco is one of the few Arab countries that are friendly to Israel. The Global War on Terror (GWOT) since the attacks of September 11, 2001, has also strengthened Morocco’s standing in US policy despite the remarkable improvement in US- Algerian ties. While this latter development has compelled Washington to pursue a relatively more cautious policy toward the conflict, its attachment to Morocco remains unwavering. In the area of economics, Morocco and the US established a Free Trade Area in 2004 that entered into effect in January 2006, while Morocco rose to major non-NATO ally of the US. Unsurprisingly, the consequence of such relations is that the US publicly seeks a political solution that is
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‘acceptable’ to all parties but pursues one that is favorable to Morocco.
Because of the established close friendship with Morocco, coupled with the ongoing need to keep Morocco in the antiterrorist coalition, the US alleviates Morocco’s fears by constantly using language that does not compel the Palace to comply with UN resolutions. When Morocco proposed the autonomy plan in April 2007, which Washington helped to craft, the US gave it full support, describing it as “a serious and credible proposal to provide real autonomy for the Western Sahara.” The US also encouraged direct negotiations between the two protagonists without preconditions, while downplaying Polisario’s counterproposal, which was much closer to international legality. Empowered by such support, Morocco, in the several ‘negotiations’, has refused to discuss any other option than its unspecific autonomy proposal.
In 2008, the US made it plain that it opposes an independent state and that “some form of autonomy under Moroccan sovereignty is the only realistic way forward to resolve this longstanding conflict”. This position has remained unchanged under the presidency of Barack Obama, whose priorities lie in Iraq, Syria, Ukraine, and the war against the Islamic State (IS). Secretary of State Hillary Clinton, current presidential candidate, has adopted a position that is irrefutably favorable to Morocco. Hopes that the Obama administration would uphold international legality were dashed when Clinton reiterated in late November 2009 that there was “no change in the Obama administration’s position as far as the Moroccan autonomy plan in the Sahara is concerned”. US-Moroccan relations are so strong that the US backed away
from an initial willingness in 2013 to include the protection of human rights in UN ceasefire monitor Minurso’s mandate. This was likely due more to the weight that Spain and France had thrown against the proposal than to Morocco’s posturing threats to reduce its security cooperation with the US. Regardless, the swift reversion to a position favorable to Rabat is a measure of the importance that foreign powers actually accord to their proclaimed support for human rights, international legality and democracy.
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Spain’s Audencia Nacional Decisions — their import for justice in Western Sahara
Jeffrey J. Smith, Faculty of Law, McGill University
R ecent months have brought an unexpected and useful extension of law to the
“question” (as the UN phrases it) of Western Sahara. These legal developments have coincided with Sahrawi people marking four decades of occupation and struggle for self- determination. The people of Africa’s last colony have proven remarkably resilient in the face of the failure of the law in their pursuit of a place among nations. It is this which has been the common thread of legal developments that have the potential to move the Sahrawi people closer to self- determination.
These recent legal developments have their origins in the decision of Sahrawis and their governing entities, the Saharawi Arab Democratic Republic (the SADR) and the Frente Polisario, to seek for themselves the benefit of the law and especially remedies from its international dimensions. The three principal developments have been: (i) two decisions of Spain’s appeals court the Audencia Nacional allowing criminal investigations by Spanish authorities in present-day Western Sahara; (ii) an October 2015 legal opinion of the African Union that made clear (and resolute) that organization’s understanding of the status of the Sahrawi people and expressed a renewed framework for them to realise self-determination; and (iii) the December 2015 decision of the Court of Justice of the European Union that, on application of Polisario, struck
down a 2012 decision of the European Council to extend free trade with Morocco into Western Sahara. (A fourth development must be noted, one sometimes overlooked but important all the same: the treaty accession of Polisario to the 1949 Geneva Conventions. In mid-2015, the Swiss Federal Council accepted the step, thereby putting the Sahrawi national liberation movement on an equal footing of access to international humanitarian law as state members of the Conventions.) These developments are equally important, but it is their combination that is consequential. Forty years after the last significant legal event for the Saharawi people, the rule of international law for them has been affirmed. That previous event was, of course, the October 1975 advisory opinion of the International Court of Justice (the ICJ) for the UN General Assembly, clarifying the legal circumstances for the Assembly to fulfill its decolonization responsibility for the people of the then Spanish Sahara. The advisory opinion should have been, if international law was to be regarded by the UN and states concerned with Western Sahara, the last word. After exhaustive evidence, the ICJ concluded that no state had a claim to the territory of Western Sahara and that the Sahrawi people were entitled to exercise their right of self-determination.
Recalling the 1975 opinion connects history to the two decisions of the Audencia Nacional four decades later that are the subject of this article. For directly as the ICJ gave its opinion and Western Sahara was invaded by its neighbouring states to the north and
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south (themselves only decolonised in recent decades), Spain abandoned its colony. It did so through the façade of an apparent continuing responsibility under the November 1975 Madrid Accords treaty with Mauritania and Morocco. But its de facto and domestic legal withdrawal was meant to be permanent. The same month, the national parliament, the Cortes, approved Ley No. 40/1975 — The Decolonisation of the Sahara — which was to have made for a definitive end to colonial responsibility for the territory together with any support for the Sahrawi people in their self- determination. (A post-Franco Spain was content to remain involved in Western Sahara through fisheries agreements with Morocco into the late 1980s and by sharing ownership of the phosphate mining enterprise in the territory until 2002). Quite apart from extending Spanish criminal law into Western Sahara — and through it international criminal law — the Audencia Nacional decisions reverse Spain’s declared legal position with the Sahrawi people. (The two decisions are Audiencia Nacional Auto no. 40/2014 (July 4, 2014), and Sumario 1/2015 (9 April 2015.)
The road to law
Recalling the long, hard path of the people of East Timor people to their self-determination, a single event helped to allow Spain’s domestic criminal law system to be turned to successfully in the first of the two Audencia Nacional decisions. In East Timor (now Timor-Leste) that seminal event was the 1991 Santa Cruz massacre in the capital of the Indonesian occupied territory, Dili. It brought into focus the cruel barbarity of an annexation project that had persisted since December 1975. For Western Sahara, the comparable event
was the November 2010 violent denouement at the hands of occupying Moroccan authorities of the Sahara protest camp at Gdeim Izeik outside El Aauin. While nowhere near the scale of killing at Santa Cruz, the death of one particular Sahrawi resulted in a complaint of murder brought before Spain’s criminal justice system. The contention was that, as with other complaints for serious crimes in Western Sahara after 1975, that Spanish courts had jurisdiction that reached into the territory. International law more or less uncontroversially supports such a result: Originally colonising countries cannot transfer away or diminish their responsibilities for non-self-governing peoples such as the Sahrawi. Indeed, while Spain was legislating away its duties in November 1975, it was at the same time (through the Madrid Accords) committing to join with Mauritania and Morocco to administer an eventual process or act of self-determination. (This commitment, too, is a dead letter. The present agreement for Sahrawi self-determination, dating from UN negotiations and Security Council resolutions that became effective in September 1991, is one between Polisario, Morocco and the UN. It is the UN that has the obligation to administer the process of self- determination, one generally accepted as culminating in a referendum of the Sahrawi people to choose between incorporation or an associated status with Morocco (and — in theory — Spain, or independence.)
As 2011 wore on and a Spanish magistrate pursued investigation of the Gdeim Izek case, it became clear there would be no response from Moroccan authorities to requests through formal diplomatic channels to provide information. The case was referred to the Audencia Nacional for clarification
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as to whether it could proceed with such a procedural shortcoming. On July 4, 2014, a panel of the court declared that the magistrate did have continuing jurisdiction and that he was to exercise it. The judgment was straightforward and its operative part brief. The reasoning was that, because Spain had responsibility for the decolonisation of the Sahrawi people as a matter of Article 73 of the UN Charter, Spanish jurisdiction extended to and had run without interruption in Western Sahara since 1975. It is worth recalling Article 73 here, both as the original basis for the collective project of states to end colonialism and for the heavy legal burden it places on the countries involved:
Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self- government recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories …
Unsurprisingly, Article 73 is discussed in the 2015 AU legal opinion and CJEU judgment, as well as being perennially mentioned in annual reports of the UN Secretary-General to the UN Security Council concerning the “question” of Western Sahara, together with UN General Assembly resolutions reminding the international community of the imperative to decolonise Western Sahara. (A casual
observer could be forgiven for concluding that the 1975 ICJ advisory opinion, coupled with Article 73 and the constantly restated demand of the international community in the form of UN resolutions presents all the law that is needed in the case of Western Sahara. Perhaps it does. But international law’s basic obligations are ones without effective compliance mechanisms.)
Settling into criminality
Only months later, the Audencia Nacional’s second decision advanced the markers of the law again. It did so in three ways. First, it built in detail on the 2014 judgment, although without direct reference to it. Second, the judgment contained longer discussion of the nature of Spain’s criminal law jurisdiction in Western Sahara and how it had continued uninterrupted since
1975. Third, and most importantly, it
confirmed that international criminal law, being part of Spanish law, was a source of law reaching into the territory. Spain was, of course, an early and enthusiastic supporter of the creation of the International Criminal Court in 2002 under the 1998 Rome Statute treaty. The treaty obligates Spain to first take jurisdiction over international crimes committed by its citizens or where they take place where it has territorial jurisdiction. The 2015 judgment leaves no doubt that Spanish courts must not hesitate, where the case warrants it, to apply international criminal law in Western Sahara. Momentously, this extends to all persons alleged to have committed crimes there, whatever their nationality. It also means that individual persons outside of Western Sahara knowingly helping — “aiding and abetting” — such crimes face criminal liability. The implications here for the taking of Western Sahara’s
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natural resources under occupation and the export trade in them — the war crime of pillage — are obvious.
The most remarkable part of the 2015 Audencia Nacional judgment was its subject. This was not a case of a crime alleged to recently have been perpetrated under occupation. The judgment is the legal foundation for an ongoing investigation into acts considered to collectively amount to genocide from the start of Western Sahara’s occupation in 1975. Named were 12 Moroccan individuals said to have a directing responsibility for serious crimes intended not only to remove the Sahrawi from Western Sahara (recalling that half the Sahrawi population fled from an armed advance and into the refugee camps in Tindouf), but to eliminate them as a distinct people. In the language of the Rome Statute, a person must have an intention “as such” to eradicate a people or distinct population. The charge is never an easy one to prove, and the tragic cases from Rwanda and Yugoslavia in the 1990s bear witness to this most difficult of international crimes to pursue. For Western Sahara, that will be true, too.
The problem of applying law in Western Sahara suffers from several phenomena. A first is that the case of the Sahrawi people has become obscure, perhaps more so in the aftermath of the 2011 Arab Spring and the mass humanitarian crisis in Syria (and the collapse of the governing order in nearby Libya). But the comparative problem of Western Sahara, after 40 years of occupation and a quarter-century of a stalled UN- led process and relative to the serious cases of Namibia and East Timor that saw considerable crimes by their occupying regimes in the day, is that its circumstances — those of the
Sahrawi people — have come to be viewed in the light of present circumstances that seem to avoid collective disapproval and action by the community of states. Here lies the core of the “problem” of Western Sahara. States may disregard thinking about and calling for the application of international law (be it Article 73 or the law to conserve Sahrawi natural resources) because they can elect the easier path of deferring to a UN that has assumed (and failed) in this particular decolonisation project. It is this that makes the Audencia Nacional decisions the most legally consequential of recent developments. (There is no question that the CJEU judgment will have considerable political impact.) That is because the application of international criminal law can be — as jurists in the English common law tradition like to put it — an “unruly horse”, one not tamed by the preference of governments anxious to keep the “question” of Western Sahara removed from their shores.
The allegations of the 2015 genocide decision — and they remain only assertions of past serious crimes — are troubling. The acts under investigation include murder, torture and illegal detention. Credible independent human rights interlocutors have made clear that such acts continue up to the present. The September 2012 report of the Washington-based Robert F. Kennedy Center for Justice & Human Rights (as it was then) is instructive in this regard. It is clear that extensive investigation was done into the events of the occupation in its early years. The allegations date for the most part from 1975 until 1978, with others through the 1980s until 1992. Credit is due to AFAPREDSA, the Sahrawi Association of Families of Imprisoned and Missing Persons, which persevered in collecting extensive evidence.
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The 12 named Moroccans — one is now dead — were among the “managers” of the early occupation. One was the governor of the territory, others local civic heads (walis), senior Royal Moroccan Armed Forces (FAR) officers, and commissioned police officers. (Morocco’s presence in Western Sahara, it should be recalled did not extent to Dakhla and places south until after Mauritania departed the territory in 1979 after a peace treaty with Polisario.)
The recital of alleged crimes in the 40 page decision makes for grim reading, one not found in the historical or academic record. The severity of the early occupation and toll in human
suffering is stark; a piercing light in the grey fog of consideration by which people now understand Western Sahara
as a banal process toward the self-
determination of its people. In an infamous 1975 interview (one can readily find it on the internet), a western television reporter asks Morocco’s King Hassan II what awaits when Morocco enters Western Sahara. The monarch pledges no quarter or mercy for the Sahrawi army. But, in the event, it was a brutality visited on the Sahrawi people.
A central allegation is the napalm
bombing of the Um Dreiga refugee camp in February 1976, an event long confirmed by survivor testimony (and their recorded condition) and the physical evidence at the scene. (The best account of the incident can be found in Carlos M. Beristain and Eloisa Gonzalez Hidalgo’s monumental 2012 work, El Oasis de la Memoria: Memoria Histórica y Violaciones de Derechos en el Sáhara Occidental.)
Even those familiar with the colonial history of Spanish Sahara will
welcome the court’s recital of the essential facts and the Spanish legal framework then and now that had to be addressed. The court also noted (on page 8) that the 1991 UN created mission in Western Sahara (Minurso) continues without a mandate “to monitor the protection of human rights”. Very little is made of the application of Spain’s criminal law into the territory. Here, the Audencia Nacional was content to recite the national and international regime applicable to Western Sahara, including the 1948 Genocide Convention and the 1975 ICJ advisory opinion.
This time, there was little discussion of Article 73 and none of the Rome Statute. There seemed to be little need to justify the extension or continuity of criminal law into the territory, as if such a result was entirely expected in the ordinary course. And, indeed, international criminal law has similarly evolved, to what seems to be a surprising universality given its difficulties in the half century after the Nuremburg and Tokyo war crimes trials. The biggest surprise may be the reaction of the jurists and those who study the law for its just application in the case of the Sahrawi people: We have long been content that the right of the Sahrawi people to self- determination is well established and that, given the intractable situation, no new legal innovations would be useful. The tide of reasoning in this second decision is a subtle one, as if the path of Spanish criminal law would naturally have led to such a result.
Innovating to justice
The delivery of justice for the Sahrawi people is something else altogether. International law works without compulsion between states, and most
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clearly upon a UN that has not seen to its stated responsibility for the Sahrawi people. The great legal innovation of requiring states to act to meet their obligations for self-determination (or ensure respect for international humanitarian law, as the case of Syria so tragically demonstrates) will be found only in the realm of theory. But, if the law’s progress is measured in tentative half steps, the Audencia Nacional decisions will prove to be a great leap forward. That is because
they undeniably illuminate the criminal nature of any otherwise anodyne and disregarded “question” of decolonisation reserved for the United Nations. Justice is first an appreciation of the essential facts, how they are wrong, and can be remedied both systemically and from case to case. The law’s innovation for the Sahrawi people, 40 years on, continues.
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Advancing self-determination over natural resources
By Aisha Dennis*
I n a key development for supporters of the Sahrawi right to self- determination, legal challenges to
the EU-Morocco Association Agreement and the Fisheries Partnership Agreement are to be heard at the Court of Justice of the European Union.
If a tin of sardines or a packet of cherry tomatoes in your local supermarket is labelled as produce of Morocco, there is a good chance that it comes from Western Sahara, but Sahrawi people are not benefitting from their sale. European and Moroccan fishing vessels trawl Sahrawi waters, depleting fish stocks and displacing the small- scale traditional craft of Sahrawi fishermen and women. Meanwhile, Moroccan companies operate large agricultural complexes, cultivating water-intensive crops, particularly tomatoes, whilst Sahrawis struggle to cope with water-scarcity.
Sahrawi agricultural workers, and fishermen and women’s unions report discrimination in the labour market, with the majority of jobs created by these industries going to EU and Moroccan workers, including settlers and seasonal workers.
Capital that Morocco raises by selling fishing licences and exporting produce to the EU is not invested in infrastructure for the Sahrawi people, who lack adequate healthcare and educational provision. Instead, a portion is invested in the infrastructure of the Moroccan fisheries and agricultural sectors in Western Sahara.
In other words, it is invested in the architecture of occupation.
Two treaties, agreed by the European Union (EU) and Morocco allow or encourage this to happen: the Association Agreement and the Fisheries Partnership Agreement (FPA). A UK-based NGO, Western Sahara Campaign (WSC), recently won the right to have its challenge to both Agreements heard before the Court of Justice of the European Union (CJEU).
The Campaign argues that, properly interpreted, the Agreements cannot apply to Sahrawi land or waters. The FPA applies only to the “the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco” and the Association Agreement excludes from preferential tax treatment, produce originating from outside the territorial boundaries of Morocco, as defined under international law.
However, in practice, the FPA allows EU member states to grant licences to European fishing vessels to fish in Sahrawi waters because it fails to delimit the southern boundaries of its application and the lawful limitations of Moroccan jurisdiction. The Association Agreement permits Morocco to declare the country of origin for produce it exports, even if it is from Western Sahara, so it enables the Kingdom to benefit from preferential trade tariffs on Sahrawi produce exported to the EU by labelling it as Moroccan.
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These lacunas or gaps in the treaties’ provisions, reflect a failure to recognise the right of Sahrawi people to self-determination over their land and natural resources, legitimise Morocco’s forty-year occupation of Western Sahara and incentivise the continued unlawful settlement of contested territory through preferential tax treatment and fishing-licence fees.
The European Commission’s failure to address these issues is, in turn, a breach of international law. The EU and its member states are legally obliged to promote the realisation of the right to self-determination, to end serious breaches of this pre-emptory norm and not to recognise as lawful or aid in any way, its violation, or other violations of principles of international law. The latter include strict conditions for the lawful exploitation of natural resources in non-self-governing territories.
According to the UN General Assembly, and former UN Legal Counsel Hans Corell, the exploitation of natural resources in a non-self- governing territory, can only be lawful if it is undertaken “in collaboration with the peoples of the Non-Self Governing Territory”, “for the benefit of the people of the territory” and “in accordance with their wishes”. In this context, the intended recipients of such benefits are the Sahrawi people because, as a matter of law, the former are the sole beneficiaries of the right to self-determination and sovereignty over their land and its resources.
The requirements identified by Mr Corell have not been met. Indeed, in their current form, the FPA and Association Agreement do not require the parties to meet these obligations, as there is no mention of the Sahrawi people in the text of the legislation.
The minutes of a meeting between the EC and Morocco, at which the implementation of the FPA and its 2013 Protocol were discussed, acknowledge that the local population must benefit from the treaty. However, since Morocco has historically argued that this group includes settlers and migrant workers who outnumber Sahrawis, this cannot be read as confirmation that the Sahrawi people will benefit from the exploitation of their resources or that exploitation will be carried out in collaboration with them or in accordance with their wishes. Collaborating with, or benefitting settlers or occupying forces, or investing in the infrastructure established by an occupying power on occupied land, does not fulfil the relevant legal requirements.
Further, EU Law mandates that proper consultation is conducted during the drafting stage of such treaties, yet the EC did not actively solicit the views of Sahrawi people as part of a formal, open and transparent consultation process, in order to establish what their wishes and interests were prior to their enactment. Consulting Morocco or Sahrawis put forward by Morocco, would not have constituted meaningful consultation. Nor could consultations with representatives of the Sahrawi people carried out now, ex post facto, render the agreements or their implementation thus far, lawful.
Serious concerns were raised by several EU member states before the Protocol to the FPA came into force in 2013. Denmark and Sweden voted against its adoption, whilst the UK and the Netherlands abstained because compliance with international legal obligations, particularly in relation to Sahrawi people, was left to the discretion of the Moroccan authorities.
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In relation to the Association Agreement, the European Parliament Rapporteur on Trade maintained in 2012: ‘the rapporteur feels unable to guarantee that this free trade agreement will comply with the international treaties binding the European Union and all its Member States’.
The Respondents in this case, the Commissioner for Her Majesty’s Revenue and Customs and the Secretary of State for Environment, Food and Rural Affairs, argue that as a de facto administering power of Western Sahara, Morocco has the right to exploit the natural resources there, assuming there is no proof that the agreements do not benefit Sahrawi people.
Yet Morocco is a de facto administering power due to the fact of occupation. It is not an administering power as a matter of law. It cannot lawfully benefit from the rights of an administering power, because it does not fulfil the obligations of the latter or
view itself as bound by them. Further, the Respondents’ formulation wrongly places the burden of proof on the occupied population. There should be no question that the agreements benefit them — this ought to be written into the legislation.
In a landmark decision made by the General Court of the European Union, a key part of the Association Agreement has recently been annulled in a case brought by Polisario Front. However, the EC has appealed the decision and the appeal will be heard at the CJEU, possibly alongside WSC’s case.
*Aisha Dennis is a member of the legal team at Leigh Day working on the case for Western Sahara Campaign.
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Festivals and ‘world music’ caravans:
the cultural battle for Western Sahara
By Violeta Ruano, Music Department, SOAS, London
T hroughout history, culture and cultural representations have been a powerful means of
expression, as well as control, of individual and collective identities. Expressive culture and its performance on different socio-political levels are part of the daily lives of the inhabitants of any nation, imagined or otherwise. They are also key elements in the construction of tight communities — for example during post-colonial processes of reunification — and their promotion in the outside world. So, it is not surprising that post-colonial nations in Africa have dedicated important resources to the creation and maintenance of “ministries of Culture that were assigned responsibility for recovering and recuperating the past” (Askew, 2002: 13). The question is who decides on the past that is going to be recovered and promoted, and how.
Since the death of Moroccan king Hassan II in 1999 and the protests that followed the coronation of his son Mohamed VI throughout Western Sahara and other contested areas, the Moroccan regime, and particularly its ministry of culture and Office National de Tourisme (National Tourism Office), have developed a set of policies of acculturation and national hybridisation that aim at the inclusion of diverse ethnic identities into an overarching national ideal (Boum, 2007). These highlight the ‘historical’
1 www.sahara-online.net/ (accessed: 8 February, 2016).
connection of those cultures with Morocco through various means — TV channels, websites, academic conferences, mass cultural festivals — promoting a ‘collective national consciousness’ (ibid: 215) with political, territorial, and touristic purposes, despite these communities being otherwise marginalised.
In this article, I focus on some examples of these policies currently operating in Western Sahara, arguing that culture has become a new key battlefield in the 40-year-long conflict in Africa’s last colony.
The Moroccan attempts to display and promote a hybrid Moroccan-Sahrawi national identity in Western Sahara are many and varied. They include the indoctrination of Sahrawi students in and outside the classroom, the celebration of Moroccan national holidays with mass performances of Sahrawi poetry and music, the promotion of Sahrawi coastal cities — especially Dakhla — as ‘Moroccan’ touristic paradises, the creation of promotional websites about the culture of the ‘Moroccan Sahara’, 1 as well as the organisation of several annual cultural festivals in the desert and in key cities under occupation. Some of the most high profile of these are: the Taragalte Festival in M’Hamid El Ghizlane, 2 which celebrates the Moroccanness of the Bedouin desert culture; the Moussem Festival in Tan Tan (ironically, the birth town of Sahrawi revolutionary leader El Uali
2 http://www.taragalte.org/?lang=en (accessed:
7 February, 2016).
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Mustapha Sayed), 3 which in 2005 was included in the Unesco list of Masterpieces of Oral and Intangible Heritage of Humanity as part of Morocco’s national cultural heritage; 4 the Festival International Rawafid Azawane in the capital of Al Aaiun; the Boujdour Festival; 5 and the Festival of Hassani Poetry in the coastal city of Dakhla. 6 Staged for five years running now (2007-2011) this last festival has become internationally recognised and an important touristic destination, attracting foreigners to participate in cultural and sporting activities, including surfing, beach camping, traditional nomadic singing, and poetry recitals. But, during the 2011 event, the festival led to mass protests by the local population in Dakhla and other Sahrawi urban centres, 7 leading to its cancellation.
In addition, Moroccan policies of acculturation in Western Sahara are also represented by the recent celebrations on 6 November, 2015, in Al Aaiun of the 40 th anniversary of the Green March — the mass migration of 350,000 Moroccan settlers, backed by troops, into Western Sahara in 1975 that marked the symbolic beginning of the occupation in the territory. These celebrations, typically an annual national holiday, included the first visit to Al Aaiun of Mohamed VI in years, accompanied by a mass deployment of security forces and the smothering of the city in Moroccan flags. 8 They also
3 Although they are located in southeast Morocco, both M’Hamid El Ghizlane and Tan Tan, locally known as the doors of the Sahara desert, stand on traditionally Sahrawi land. 4 http://www.unesco.org/culture/intangible- heritage/26arb_uk.htm (accessed: 7 February,
2016).
5
7 February, 2016). 6 www.dakhla-festival.com/index_en.htm (accessed: 7 February, 2016).
involved the organisation of the third staging of the Caravan de la Marche Verte (Caravan of the Green March), with more than 300 Moroccans and international visitors travelling from Marrakesh to Al Aaiun by car, motorbike and other means, sponsored by the Maghreb Motor Sports Association. 9 Participants, who paid around €174 for three days of lodging, transport, insurance and merchandise, were given red and green t-shirts, emulating the Moroccan flag, as well as flags and other nationalistic paraphernalia. Through the coordination of a physical and very visual reminder of the invasion of Western Sahara, disguised as a cultural and touristic event, Morocco restates every year its political and geographical claims over the territory.
And the examples keep multiplying. A few months earlier, in January 2015, a joint Moroccan-Malian initiative started circulating throughout some of the most well known ‘world music’ circles, and particularly among the lovers of the relatively new ‘desert blues’ sound, developed in West Africa throughout the 1990s and 2000s (Durán, 2013). The second Caravan Culturelle pour la Paix (Cultural Caravan for Peace) 10 — a mass trans- Saharan cultural convoy that involved the touring of musicians and other artists from different North-West African countries, including Morocco, Mauritania, Burkina Faso, Niger, and
7 www.afrol.com/articles/37450 (accessed: 8 February, 2016).
(accessed: 8 February, 2016). 9 lematin.ma/journal/2015/la-3e-edition-de-la-
(accessed: 8 February, 2016).
10 www.culturalcaravanforpeace.org/?lang=en (accessed: 7 February, 2016).
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Mali — in an attempt to re-establish “dialogue, cultural exchanges, social cohesion, peace, tolerance and cultural diversity in the regions of the Sahel and the Sahara”, as it stated on the promotional website. The tour started with the Moroccan Taragalte Festival of Saharan Music, 11 celebrated annually in M'hamid El Ghizlane (southeast Morocco), and culminated on 21 February last year with a Peace Concert in Bamako, Mali’s capital. With sponsorship as varied as Malitel (a Malian phone company), US Aid, the Norwegian Embassy in Mali, the Belgium government, among others, this initiative was organised by the Malian Festival au Désert (Festival of the Desert), 12 an internationally recognised musical event that has usually been celebrated since 2000 in Essakane, near Timbuktu in the north of Mali. Since the Tuareg uprisings of 2011 and consequent civil war it has been exiled to Mopti in central Mali.
The official promotional poster of the Cultural Caravan for Peace, much shared through social media by audiences and participating musicians alike throughout the duration of the caravan, features a map of the region showing the key dates and stops of the tour, as well as some of the participating countries.
This map depicts a symbolic rapprochement between Morocco and Mali represented by the Caravan. It carries two significant geographical inaccuracies: first, it gives the impression that Mauritania is located directly east of Morocco, disregarding the existence of Algeria and the Sahrawi refugees living around the Algerian desert city of Tindouf; second, as we might expect from a Moroccan- led initiative such as this, the map clearly shows Western Sahara as an integral part of Morocco without leaving any room for interpretation since the word Maroc (Morocco) appears written on top of the northern Sahrawi territory. In addition, the map represents the western part of the Sahara desert — the vast territory between Morocco and Mali — as an empty piece of land, ignoring its rich cultural history.
The inclusion of Morocco in the Cultural Caravan for Peace as one of the potential peacemakers in the Sahara region, as well as purported safeguarder of traditional culture in the Sahara, contrasts starkly with the systematic denial of human rights, including cultural rights, in Western Sahara since the invasion of the ex- Spanish colony in 1975. These include abuse, police harassment, arbitrary detentions, and torture. They also manifest as prohibitions on speaking
11
www.taragalte.org/?lang=en February, 2016).
(accessed:
7
12 http://www.festival-au-desert.org/ (accessed:
7 February, 2016).
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Hassaniya and Spanish in public spaces such as schools, difficulty in accessing higher education for Sahrawi students, the banning of traditional tents in the main Saharawi cities, and the continuous censorship of any Sahrawi cultural activities that are not exclusively state-led (Deubel 2012). These have been denounced by international NGOs such as Amnesty International, Human Rights Watch and the Robert F. Kennedy Center for Justice & Human Rights, among others (see Report 2015).
In addition, the noticeable exclusion of Western Sahara and some of its most representative musicians as one of the touring countries from the region also contrasts with the past support of the Festival au Désert for Sahrawi national music band Tiris (based in the Saharawi refugee camps) that had its international debut in Essakane in January 2006, as well as with the well known advocacy for peace and human rights of Sahrawi singers Mariem Hassan and Aziza Brahim. These measures exemplify Morocco’s attempts to reinterpret the geography and history of the area to depict Sahrawi land and culture as intrinsically Moroccan.
This brief analysis of some examples of Moroccan cultural policies in Western Sahara has demonstrated how the manipulation of expressive culture is a recurrent strategy used by the Moroccan regime to assert its claim over the territory of Western Sahara. The organisation of cultural festivals and caravans exclusively led by the state allows the Moroccan regime to reinforce the idea of the existence of a distinctive ‘Moroccan-Sahrawi national identity’, as well as to present Morocco to the international community as a welcoming and peace- abiding nation despite the numerous
human rights reports that show otherwise. Culture is an increasingly important battlefield in the struggle for Sahrawi self-determination.
References:
Askew, Kelly. 2002. Performing the Nation: Swahili Music and Cultural Politics in Tanzania. Chicago:
University of Chicago Press.
Boum, Aomar. 2007. ‘Dancing for the Moroccan state: ethnic folk dances and the production of national hybridity’. In North African Mosaic: A Cultural Reappraisal of Ethnic and Religious Minorities, edited by Nabil Boudraa and Josephy Krause, 214-237. Newcastle, UK: Cambridge Scholars Publishing.
Deubel, Tara. 2012. ‘Poetics of diaspora:
Sahrawi poets and postcolonial transformations of a trans-Saharan genre in northwest Africa’. The Journal of North African Studies, 17 (2): 295-314.
Durán, Lucy. 2013. ‘POYI! Bamana jeli
music, Mali and the blues’. Journal of African Cultural Studies, 25 (2): 211-
246.
Robert F. Kennedy Human Rights; Association Française d’Amitié et de Solidarité avec les Peuples d’Afrique; Collective of Sahrawi Human Rights Defenders; Bureau des Droits de l’Homme au Sahara Occidental; Fondation Danielle Mitterrand/France Libertés; Action by Christians for the Abolition of Torture-France; Sandblast. 2015. Report: Observations and Topics to be Included in the List of Issues. On the occasion of the Kingdom of Morocco’s fourth periodic report on the implementation of the International Covenant on Economic, Social and Cultural Rights.
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