Not One Grain Of Sand

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‘NOT ONE GRAIN OF SAND’: INTERNATIONAL LAW AND THE CONFLICT IN THE WESTERN SAHARA

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Stefan Simanowitz

MPTY time is a dangerous thing’, Jadiya Hamdi tells me over a glass of sweet tea. ‘It can kill a human soul’. As an exile herself, she understands how the physical hardships faced by the 165,000 Saharawi people living in refugee camps in the Algerian desert are in some ways easier to bear than the psychological ones. Temperatures of 120 degrees, sandstorms, and dependence on external supplies of food and water are things that the refugees have resigned themselves to enduring. But the despondency that comes of waiting in exile whilst promises are broken and hopes repeatedly dashed is something to which they can never adjust. The dispute in Western Sahara is one of the longest running and most disregarded conflicts in the world. Known as ‘Africa’s last colony’ Western Sahara is a sparsely populated, arid place with a beautiful seven-hundred-mile coastline. A former Spanish colony – Spanish Sahara – it has been subject to an occupation by neighbouring Morocco for the past thirty-four years. The resultant humanitarian rights crisis is scandalous in itself, but perhaps a greater outrage is the abject failure of the international community to adequately address the ongoing situation. For over three decades international law has been flouted whilst governments around the world are complacent or complicit in permitting the occupation and even profiting from it. About the size of Britain, Western Sahara lies along Africa’s Atlantic coast. Descended from Bedouin Arabs who arrived in the thirteenth century and integrated with the Sanhaja population, the Saharawi have wandered the territory’s deserts rearing sheep, goats and camels for centuries. They have their own rich nomadic culture and traditions as well as their own distinct Arabic language, Hassaniya. In 1884 at the height of the ‘scramble for Africa’, the Spanish colonised the territory but did not settle much of the country, staying largely in port towns along the coast. However, the discovery in the 1960s of large phosphate deposits beneath the desert sands led to the setting up of a large Spanish mining infrastructure. As decolonisation movements gained momentum across the continent, it became increasingly clear that the Spanish would have to cede control of Western Sahara. In 1973 a Saharawi independence movement, the Polisario Front, began an insurgency against the Spanish colonial rule. As preparations were being made for transition to independence the Moroccans and Mauritanians both asserted territorial claims over the area. These claims were dismissed by the International Court of Justice (ICJ) in 1975. In their

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ruling the ICJ declared that whilst there had been ‘legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara’ the facts did ‘not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco’. The ICJ also upheld United Nations (UN) resolution 1541 (XV) of 1960 on the decolonisation of Western Sahara and the right of its people to self-determination. In response to the ICJ ruling the Moroccans organised a mass mobilization known as the Green March where hundreds of thousands of Moroccan civilians crossed the boarder into Western Sahara. With Franco on his deathbed, the Spanish hurriedly signed the Madrid Accords in which they agreed to divide Western Sahara between Morocco and Mauritania in exchange for continued fishing rights and partial ownership of mining interests. In February 1976 the Spanish withdrew from Western Sahara, the Moroccans and Mauritanians occupied much of the territory and the Polisario Front declared the creation of the Saharawi Arab Democratic Republic (SADR). A fifteen-year war ensued, the Mauritanians withdrawing in 1979. The fighting was brutal, with the Moroccans using their well equipped army and air-force to full effect but the Saharawis conducting an effective counter insurgency. In 1991 a ceasefire was declared and under the terms of a UN agreement a referendum for self-determination was promised. Seventeen years later the Saharawis are still awaiting that referendum. Despite efforts by the international community the referendum has been continually obstructed by the Moroccans who have remained in occupation of roughly three quarters of Western Sahara. Over half the Saharawi population still live in exile, living in four large camps in the inhospitable Algerian desert separated from their homeland by a more than 1500 mile (2500 km) fortified barrier known as ‘the wall’.

Western Sahara and International Law Western Sahara is classified by the UN as a non-self-governing territory, a term used to describe a nation whose people are yet to attain a full level of self-government. Whilst over eighty countries have recognised the Saharawi Arab Democratic Republic no country recognises either the Moroccan annexation or its claim to sovereignty over Western Sahara. The UN has passed over a hundred resolutions on Western Sahara, the first, Resolution 3458 (XXX) in 1975, declared unequivocally that the General Assembly reaffirmed ‘the inalienable right of the people of Spanish Sahara to self-determination, in accordance with General Assembly resolution 1541 (XV)’. Enforcement of this resolution was blocked by the US establishing a pattern that has continued ever since whereby UN Resolutions on Western Sahara are passed but not enforced.

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Under international law, the situation of Western Sahara is unambiguous. The division of Western Sahara by Spain in 1976 breached Chapter XI of the UN Charter, the Declaration Regarding Non-Self-Governing Territories which requires an administering power to ‘develop self-government to take due account of the political aspirations of the peoples’. Morocco’s invasion was a serious breach of the UN Charter and should have invoked Chapter VII (‘Threats to the Peace, Breaches of the Peace and Acts of Aggression’) rather than merely being dealt with as a dispute under Chapter VI. The ongoing settlement of tens of thousands of Moroccans into the territory is a breach of Article 49 of the Geneva Convention. As a result of the resettlement programme it is estimated that the Moroccan settler population now outnumbers the indigenous Saharawi population by as much as three-to-one. The resettlement has given the Moroccans a pretext to block the referendum by insisting on the eligibility of the Moroccan settler community to vote and challenging the numerous voter registration lists presented by the UN Mission for a Referendum in the Western Sahara (MINURSO). Another ongoing breach of international law is the exploitation of Western Sahara’s natural resources and it is not just the Moroccans who are breaching these laws. Indeed many foreign governments and companies are involved in deals with Morocco in order to gain access to Western Saharan resources. This lucrative trade has helped to ensure that action to end the political and humanitarian crisis in Western Sahara has not been high on the international political agenda. Ironically, the earth beneath the arid and infertile deserts of Western Sahara contains a large proportion of the world’s known phosphate reserves. Phosphate is needed for the production of fertilizers and is an essential part of modern agriculture. Phosphate reserves however are finite and extraction is predicted to peak in the coming decades. Between 2007 and 2008 the price of phosphate rose by a staggering 800 per cent and its soaring price has meant that Morocco gains over $1 billion a year from its exploitation of Western Saharan phosphates. As well as phosphates, Western Sahara also has other valuable minerals including iron ore, titanium oxide, vanadium, uranium and zirconium. Recent explorations indicate potential onshore and offshore reserves of oil and gas and the waters along Western Sahara’s coastline are among the richest fishing waters in the world. In 2005 the EU and Morocco signed the EU Fisheries Agreement under which the EU pays Morocco to permit 119 European boats to fish Morocco’s Atlantic waters. The agreement fails to distinguish between the waters of Morocco and those of Western Sahara meaning that EU vessels are illegally fishing Western Saharan waters. As well as the fisheries treaty, the European Union last year agreed to grant Morocco ‘advanced status’ relations reducing trade restrictions and

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increasing political and economic cooperation between Morocco and the EU. So far, the EU has indicated that the territory of Western Sahara will be included in the deal. This contrasts not only with the EU’s agreement with Israel, where occupied Palestine is excluded, but also with the US-Moroccan free trade agreement, which excludes Western Sahara. Under General Assembly resolution 1514 (XV), the natural resources of Western Sahara should belong to the Saharawi people. In 2002 the UN Legal Counsel Hans Correll declared that exploration and exploitation activities are being carried out ‘in violation of the principles of international law applicable to mineral resource activities in Non-Self-Governing-Territories’. General Assembly Resolution 63/102 of 2008, called on Member States to take ‘legislative, administrative or other measures in respect of their nationals and the bodies corporate under their jurisdiction that own and operate enterprises in the Non-Self-Governing Territories that are detrimental to the interests of the inhabitants of those Territories, in order to put an end to those enterprises’. This has not been done. As well as falling under international laws of decolonisation and armed conflict the Moroccan occupation of Western Sahara is also subject to international human rights laws and numerous bodies including the UN High Commissioner for Human Rights have raised concerns over violations of human rights in the occupied territory. A 2008 report by Human Rights Watch found that Morocco has violated the rights to expression, association, and assembly in Western Sahara. An Amnesty International report of the same year found that ‘politically motivated administrative impediments have been used to prevent human rights groups obtaining legal registration and curtailing their scope of activities’. Since May 2005 there have been a series of nonviolent protests by the Saharawi population – the ‘intifada’ – which have been violently broken up by Moroccan forces and numerous people have been arrested, tortured or have ‘disappeared’. Indeed, since the Moroccan occupation over 500 Saharawis have been declared missing. There have been calls for MINURSO to be given a human rights monitoring role in order to prevent abuses in the occupied territory. MINURSO is currently the only UN Peacekeeping mission without such a role. Earlier this year the passing of Resolution 1871, went some way to acknowledging the need for the UN to monitor human rights abuses by stressing the ‘importance of making progress on the humanitarian dimension of the conflict as a means to promote transparency and mutual confidence through the constructive dialogue and humanitarian confidence-building measures’.

Negotiating a Settlement Despite many attempts to break the long-running diplomatic stalemate, progress towards a resolution has been tortuously slow. In 1997 the then

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UN Special Envoy, James Baker (a former US Secretary of State), managed to get an agreement between representatives of Morocco and the Polisario Front on an identification process for voters and a code of conduct for the longawaited referendum. MINURSO attempted to verify the legitimacy of over 200,000 prospective voters, but when they presented the completed list in 2000, Morocco blocked the referendum, lodging over 130,000 appeals. In 2003, in an effort to side-step disagreements over voter registration, Baker presented a proposal based on the agreement which had settled the East Timor dispute whereby an autonomous Western Saharan Authority would be created giving Western Sahara five years of autonomy within the Kingdom of Morocco. At the end of the five-year period a referendum would be held to determine whether Western Sahara was to be granted independence, autonomy or should be permanently integrated into Morocco. Although it represented a significant move away from their traditional position, Polisario accepted this proposal as the ‘basis of negotiations’. The Baker plan quickly gathered international support culminating in a unanimous endorsement by the UN Security Council. However, fearing that they might loose such a referendum, the Moroccans rejected the proposal outright. The situation has remained stagnant ever since despite further efforts to break the deadlock. In June 2007, the Security Council requested the two parties to begin direct negotiations without preconditions. These began in June of the same year culminating in a fourth round of negotiations in April 2008. No progress whatsoever was made. Whilst Polisario have made it clear that they are willing to support a referendum to determine the future of the country, Morocco continues to oppose any referendum that even raises the question of the status of her ‘Saharan provinces’. Indeed the intransigence of Morocco’s position was made clear by King Mohammed VI in 2007. ‘We shall not give up one inch of our beloved Sahara’, he said. ‘Not a grain of its sand’. In the refugee camps in Algeria there is a palpable sense of frustration with the failure of the diplomatic process. For decades they have watched whilst liberation movements have swept to victory across the continent. In 1975 and again in 1991 it seemed that Saharawi independence was at hand, only to have it snatched away. Since the 1970s, many thousands of refugees have travelled abroad – many to Cuba – for schooling and university education in preparation for the process of nation-building. On their return to the camps they find the situation unchanged with no job prospects and little to fill the empty days. Mohamed Awah, 32, was one such refugee who spent thirteen years gaining an education in Cuba. Now he has begun to question the value of the Master’s degree in economics he gained in Havana University. ‘Perhaps rather than learning to use a calculator it would have been better if I had been taught to use a gun’. This sentiment reflects a rising militancy particularly among some young Saharawis in the

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camps. The Prime Minister of SADR, Abdelkader Taleb Omar recently admitted that despite Polisario’s commitment to a peaceful path to independence they are coming under pressure to return to armed struggle. Although this would be very unlikely to happen without support from Algeria, there is a real danger that this conflict could, at any time, flare up into violence. In a situation where Polisario will not negotiate away their right to selfdetermination, Morocco will not countenance any proposal that contains even the possibility of independence and the Security Council is unwilling to enforce the resolutions to resolve the dispute, it is difficult to see how this deadlocked peace process could be revived. Nevertheless, there are some recent signs that give cause for cautious optimism.

The Way Forward In his Cairo speech in June, President Obama talked boldly about a ‘new beginning’ with the Muslim world. Despite the myopic coverage in the Western media, the focus of Obama’s project is not merely the Middle East but includes a redefinition of US relationships with Islamic nations in North Africa and the countries of the Maghreb. It seems likely that President Obama is cognisant that the failure to bring a just peace in Western Sahara is impacting on both the credibility of the UN and the stability of the wider region and beyond. Indeed, earlier this year both Iran and Venezuela broke off diplomatic relations with Morocco over the issue of Western Sahara. Obama’s speech in Cairo included a recognition of the historic ties between the US and Morocco and an acknowledgment of the fact that in 1787 Morocco was the first nation to recognise American independence. Morocco has been a key ally in the so-called ‘war on terror’ and in 2004 America conferred Major non-NATO Ally status on Morocco. Morocco was one of the destinations for US rendition of suspected terrorists and offers the US navy and air-force access to her ports, airspace and runways. The US, together with France and Britain, has been instrumental in helping to ensure that no action has been taken by the UN Security Council against Morocco over Western Sahara. Despite ongoing and historic alliances there are nevertheless indications that the Obama Administration is keen to disassociate itself from a Moroccan plan for autonomy in Western Sahara. Attempts by the Moroccans to depict the Polisario Front as a terrorist group have singularly failed. In July the Spanish newspaper, El Pais, noted that when discussing Western Sahara, neither President Obama nor his Ambassador to the UN, Susan Rice, have made reference to the Moroccan autonomy proposal and suggest Obama may put pressure on Morocco to accept a solution to the conflict which conforms with international law. The recent appointment of Christopher Ross as the new UN Special Envoy to Western Sahara is also expected to give renewed energy to resolve the

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conflict. After touring the region and meeting the key players in June, Mr Ross concluded that he was ‘optimistic’ about the prospects of a breakthrough. His visit came just months after the Security Council unanimously adopted resolution 1871 extending the mandate of MINURSO until 30 April 2010 and calling for ‘negotiations without preconditions and in good faith, with a view to achieving a just, lasting and mutually acceptable political solution, which would provide for the self-determination of the people of Western Sahara’. On 10th and 11th August informal meetings took place between representatives of Morocco and Polisario in the Austrian town of Drnstein. Although the detail of what was agreed in these closed_door negotiations was not made public, Mr Ross’ statement at the end of the talks gives reason for cautious optimism. ‘The discussions took place in an atmosphere of serious engagement, frankness, and mutual respect’, he said. ‘The parties reiterated their commitment to continue their negotiations as soon as possible, and [I] will fix the date and place of the next meeting in consultation with the parties.’ The UN was founded in order to prevent the aggressive expansion of territory by force by any nation. Yet in Western Sahara, the Security Council has failed to take effective action to challenge Morocco’s blatant contravention of the UN Charter. This is a dispute that falls under its jurisdiction but the UN has chosen to pass resolutions which it does not enforce. Rather than imposing sanctions on Morocco, governments around the world sign trade deals which enable them to exploit Western Saharan resources. In the meantime the Saharawi population are either subject to human rights abuses within occupied Western Sahara or left to languish in refugee camps in the desert. During the sixteen-year war that finished in 1991, captured Moroccan prisoners would not be held behind walls or barbed-wire fences. Instead they would be corralled into open compounds in the desert. Prisoners were free to leave at anytime. But in the Sahara there is nowhere to go. Although conditions in the refugee camps are by no means wretched, with all basic needs taken care of by international aid agencies, life there remains unremittingly hard. Issa Brahim, a 32-year-old mother of four who was born and raised in the Dakhla refugee camp, describes the difficulties of living in the camps. ‘We have nothing here’, she says. ‘We are without work, we are without water, we are without land for our goats to graze. But we are not without hope’. Greatest among Issa’s hopes is to set foot in her homeland for the first time.

Stefan Simanowitz, a writer, journalist, and human rights campaigner, travelled to the refugee camps in Algeria and is campaigning to raise awareness of the situation and increase international political pressure for a resolution to the conflict. To find out more or join the campaign visit www.freesahara.ning.com