THE UNITED NATIONS AND WESTERN SAHARA

Distinguished Members of Government and of the Diplomatic Corps, Distinguished Members of the University, Friends of Western Sahara,

I am indebted to our hosts here today for sponsoring this Conference on International Law and Western Sahara, and I applaud the Republic of South Africa for its continuing support of the Sahrawi people. In particular I thank the Department of Foreign Affairs and Ambassador Van Tonder, Director for North Africa, and the University of Pretoria and Professor Michelle Olivier of the Law Faculty, for providing us, and those interested in international law, with this extraordinary forum to exchange ideas. I note to Professor Olivier that I lectured here, in the Law School, in 1971 or so on the Angela Davis case, a cause celebre at that time. I thank too all our distinguished colleagues who traveled here from all over the world and add their own luster to this program. I admire Professor El Ouali who came here from Morocco to defend the indefensible. I cannot agree with his position, but I have to acknowledge his pluck. As lawyers say in my country, when you don’t have the law, argue the facts. When you don’t have the facts, argue the law. When you have neither, it is probably not a bad idea to storm off which is what Professor El Ouali chose to do today.

While I am acknowledging people, let me add that I have had the honor over my career in government to work with two formidable authorities on the United Nations: The late Ambassador Jeane Kirkpatrick whom I knew when I was at USAID’s Sub-Saharan African Bureau, and Ambassador John Bolton with whom I worked at USAID when he was a mere lawyer. I am indebted to them both for their many insights which I reflect in these remarks today.

Eleven years ago, I shared a tent in Tindouf with Jose Ramos Horta who had just won the Nobel Prize for his courage in fighting for the independence of his people in East Timor. Until I met him, I thought that heroes were just people I read about in books. In Ramos Horta I had the pleasure of meeting one in flesh and blood.

Today is déjà vu all over again. I have the honor to be on the same program as Aminatou Haidar, a Sahrawi heroine who comes here just after being awarded the Robert F. Kennedy Human Rights Award in Washington, D.C. It was my honor to be one of her sponsors for that award.

Ms Haidar is a non-violent, peaceful demonstrator in her home, Western Sahara, for the self-determination of her people and for the release from Moroccan prisons of Sahrawi political prisoners. For her peaceful protests the Moroccan invaders of her country have, for the last 20 years, beaten her, imprisoned and held her incommunicado for months on end and ruined her health. The next time you hear the Moroccans talk about the good they are going to do for the Sahrawi people, remember what they did and are doing to the Sahrawi people. Remember this brave, frail woman whom you see here today with your own eyes and what the Moroccans have done to her.

The Moroccans have promised Aminatou more of the same if she doesn’t quit her protests. If you have seen a bootlegged copy of the 2006 U.N. Human Rights Committee’s Report on Western Sahara, I say bootlegged copy because the U.N. will not release it officially (It’s not for public consumption, you see), you know the Moroccans mean business. Freedom House and similar human rights organizations give Morocco-occupied Western Sahara and Zimbabwe the same bottom-dwelling score, just beating out Tibet, Cuba and North Korea. Will she quit? Or will she carry on, agreeing with Elie Wiesel: “There may be times when we are powerless to prevent injustice, but there must never be a time we fail to protest.” I know the answer. So do you. To paraphrase the Irish poet, William Butler Yeats: All of us here today say that our glory is that we have such a friend as you, Aminatou.

THE REFERENDUM THAT NEVER WAS

My first experience with the U.N. was like being written into a Woodie Allen script. I was hired by Sahabzada Yaqub Khan, a distinguished Pakistani statesman who was then serving as Secretary General Boutros-Ghali’s representative for Western Sahara. He reminded me of Nigel Bruce, the fine old character actor who played Dr Watson in the Sherlock Holmes films, a little stodgy and dotty at times as I suppose many men of his accomplishments are. What I remember most is Erik Jensen’s account of Yaqub Khan’s visit to Western Sahara. He asked Jensen, who was in charge of MINURSO at the time, about a large flag flying outside his office: “Why are you flying the Israeli flag?” Of course, the flag was not Israeli, but Moroccan. Both flags do have a big star in the middle, and, after all, no one’s perfect.

Erik Jensen had many stories like this and was a wonderful raconteur, a fine mimic of Boutros-Ghali among others and generally very amusing company. He was a real life version of Bertie Wooster, Wodehouse’s silly Englishman with his spats and monocle. Jensen was a gentleman but without spats and monocle and unfortunately no match for his opposite number, Mohamed Azmi, a thug and King Hassan’s enforcer in Western Sahara. Azmi was the incarnation of Graham Greene’s Captain Segura, from Our Man in Havana, charming during the daylight hours, but vicious when night fell and the Johnnie Walker Black flowed. He was a scrupulously religious fellow, however, never partying before 9 p.m. during Ramadan. The brooding omnipresence over the dramatis personae was U.N. Secretary General, Boutros Boutros-Ghali, a close friend of King Hassan and someone who should have, for that very reason, recused himself from participating in the Western Sahara issue. Boutros-Ghali’s egregious ego and blunders got him ousted as Secretary General, something unheard of in U.N. history where almost everything from embezzlement of funds to demanding sexual favors from subordinates is regarded as a peccadillo. He was also guilty of what Winston Churchill called “terminological inexactitude,” or what you and I would call tall tales. I remember reading in a Washington paper his account of his visit to Western Sahara. He said it took him 4 or 5 days to fathom the complexities of the competing Moroccan-POLISARIO positions. In fact, and I know this because I was there, he spent one day in Western Sahara, and half that time he was eating couscous with the Moroccans.

These would have been stories to dine out on if things had turned out differently. My job in MINURSO was to run that referendum on the future of Western Sahara, one of the reasons for which MINURSO was created, but these same laughable characters turned that referendum into a tragedy, an enormously expensive tragedy for the Sahrawi people.

I documented my experience with MINURSO in testimony before the U.S. Congress. I was able to do so thanks to the late Chuck Lichenstein, a former U.S. ambassador to the U.N. and deputy to Ambassador Kirkpatrick. Despite, or because of, his proximity to the United Nations, he was not a great admirer of that body. It was he who said after the Soviets, with impunity, shot down a Korean passenger plane in 1983: “If, in the judicious determination of the members of the United Nations, they feel they are not welcome and treated with the hostly consideration that is their due, the United States strongly encourages member states to consider seriously removing themselves and this organization from the soil of the United States. We will put no impediment in your way, and we will be at the dockside bidding you farewell as you set off into the sunset.” It was Chuck who felt the United Nations’ actions in Western Sahara were so outrageous, even by U.N. standards, that my story had to be told. He gave up his place on that congressional panel in order that I could do so.

My testimony was hastily put together and brief. In a nutshell, I said that the referendum had serious problems from the start. Inexplicably, Erik Jensen had decided to allow the opposing parties themselves to process applications to vote in the referendum. As a result, the Moroccans were able to and did disenfranchise vast numbers of Sahrawi voters. The same problem did not exist in the POLISARIO centers in Algeria where the only applicants were POLISARIO supporters. There was nobody to disenfranchise.

The referendum continued to slide downhill once the application process began. In Western Sahara, terrified Sahrawis asked us to keep an eye on them, but discreetly, because any overt contact with the U.N. could get them “disappeared.” I said at the time that it reminded me of this country, South Africa, during apartheid, when I could meet and talk freely with black people in the safety of the U.S. Embassy but would be ignored by those same black people when I encountered them publicly because they quite reasonably feared repercussions if seen talking to a foreign official. Oh yes. Did I forget to mention? Under Moroccan occupation, Western Sahara was and is a police state.

There were delays and more delays. On one occasion, like something out of a French farce, the referendum was delayed for two weeks, at a cost of $100,000 a day, over Morocco’s demand for an exchange of letters to discuss the interpretation of an adverb used in a referendum notice.

In addition to the delays, which were interminable, there was infiltration by the Moroccan Security Forces photographing every Sahrawi in the identification process, Moroccan taps on all international phone lines in and out of MINURSO and, in a word, Moroccan control of what was supposed to be a United Nations operation. For all his amusing skills, Erik Jensen did not have the gravitas, let us say, in place of a harsher word, to deal with a thug like Azmi. To complete the picture, at the end of my stay in MINURSO, I was making my reports to both Erik Jensen and Mohamed Azmi simultaneously. Even the veneer of an independent U.N. mission was gone by that time.

It turned out that what I thought I had been discovering on my own was common knowledge. As NY Timesman Chris Hedges reported in that newspaper, foreign diplomats in Rabat were amused at Morocco’s brazenness, but no Morocco-watchers were actually surprised. The American Embassy political officer knew what was going on in MINURSO, and another MINURSO officer, like U.N. Ambassador Albright, a Wellesley grad, personally briefed the ambassador’s staff that Morocco was turning the referendum into a sham. An intelligence official asked me on July 4th of that summer: “What accounts for that [bleeping] weakness in MINURSO that lets Morocco dominate of the referendum?” Even Human Rights watch was able to prepare a 44-page document on Morocco’s violations of Sahrawi rights because it seemed everyone knew what was going on in MINURSO.

THE UNITED NATIONS IN ACTION IN THE INTERIM, OR RATHER UNITED NATIONS’ INACTION

But first as they say on television, a word from our sponsors: A brief look at the United Nations: the history, rhetoric and the reality.

In 1693 William Penn published his “Essay toward the Present and Future Peace of Europe.” It called for the creation of a “parliament of princes,...to adjudicate territorial controversies and uphold the rule of law.” This parliament would have jurisdiction over such controversies and impose judgments, enforceable by arms, against unwilling states. This, an early version of what we would now call jus cogens, Penn reasoned, would ensure peace in Europe and restore the reputation of Christianity.

Fast forward to the League of Nation: The failure of the League of Nations, as Harold Nicolson noted, was due to the fallacy that one could apply to external affairs the institutions and practices of legislative processes in liberal democracy. “Among peace-loving peoples,…violence could or would be superseded by reason,” as defined by majority vote, one state, one vote. A fine utopian concept. It just didn’t work.

One world war after the failure of the League of Nations, former United States Secretary of State, Cordell Hull, returning from the 1943 Moscow conference where Britain, the Soviet Union and the United States had agreed to create a postwar international organization to keep the peace, announced: “There will no longer be need for spheres of influence, for alliances, for balances of power…by which, in the unhappy past, the nations strove to safeguard their security or to promote their interests.” This kind of dreaming still persists as you can see if you read the handouts from groups like the United Nations Association. Just a few years ago, Lewis Henkin of Columbia University Law School made an equally bizarre statement; “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

There has been no shortage over the past 60 years of bloviation about what the U.N. promises, such as Bernard Baruch’s “We must elect world peace and world destruction”, and it goes on and on. Even presidents have been gullible. As Dr Johnson said, “Lapidaries are not under oath.” What the U.N. actually delivers as opposed to promises is a different story, as former U.N. diplomat Conor Cruise O”Brien’s observed: “You can safely appeal to the U.N. in the comfortable security that it will let you down.”

Dean Acheson, who was there when the United Nations was created, described the Charter as being sold to the American people as “almost Holy Writ”, raising hopes that could only lead to bitter disappointment. Former U.N. Undersecretary General Brian Urquhart described it thus: The U.N. Charter sets out “a system of maintaining international peace and security which “assumes that all governments will play the roles assigned to them. Those involved in disputes will avail themselves of the means available in the Charter to settle those disputes peacefully. If they fail to do this, the membership of the United Nations, under the guidance of the Security Council, will take a series of steps designed to persuade them to do so. The governments concerned will heed and obey the injunctions of the Council. And if in the end, the threat to peace persists, the Council, led by its permanent members, will apply enforcement measures, ranging from economic sanctions to military sanctions, to restore peace and security.”

The Charter had made these assumptions about the behavior of nations, and these same assumptions were proved wrong, almost immediately, by the actual behavior of countries involved. It was the difference between rhetoric and reality, between a letter to Santa Claus and the real world.

In Ambassador Kirkpatrick’s words, …”the Charter of the United Nations reflected our national optimism and our predilection for faith in good works. It was idealistic to the point of utopianism. …And it was doomed from the start.” The United Nations has had successes in keeping the peace, but, she added, “few could be found today who would seek to justify the United Nations solely or even mainly on grounds of a successful record of conflict resolution. “The simple reality, as General Marshall reminded Ernest Bevin in1947, is that “the transfer of a vexatious problems to the United Nations does not render them any less complicated or difficult.”

Ambassador Kirkpatrick added, “I am more bothered by far by the tendency of the United Nations to make conflict resolution more difficult than it would otherwise be, at least in a good many cases.” Someone once asked Chuck Lichenstein what would have happened if there had been a U.N. during our own Civil War. “It would probably still be going on,” he responded.

The paradox of bringing problems to the U.N. as Ambassador Kirkpatrick noted is that the number of parties involved is dramatically extended, bringing into conflicts nations who would not be otherwise involved and requiring them to choose sides, thus polarizing instead of resolving conflicts. As noted by Yeselson and Gaglione in their book on the U.N., bringing an issue to the U.N. is frequently viewed as a hostile act, given the United Nations’ reputation for partisanship and conflict exacerbation.

As he stated in his recent book, Surrender is not an Option, John Bolton had hoped, when he was United States ambassador to the U.N., to do something to resolve the Western Sahara question, the longest, most protracted conflict in the history of the United Nations, but the U.N. Peacekeeping system didn’t permit it. Morocco had agreed to a referendum but “consistently blocked taking the steps necessary to conduct it, such as voter identification and registration. That was a clear example of the limitations of UN Peacekeeping…there simply was no chance of success if any of the parties to a dispute dug in his heels and refused to cooperate. In that sense, at least, with respect to UN operations directly affecting them, almost every U.N. member has a kind of veto, not just the Security Council’s Five Permanent members. This is undoubtedly why the UN so often resembles the League of Nations in its achievements.”

Some distinguished commentators, such as Pedro Pinte Leite who is here today, and Ambassador Salka Embarek, who are extraordinarily capable of defending their positions, have criticized the former Special Representative Peter Van Walsum for stating, in so many words, that while international law was on the side of the Sahrawis, the Security Council would have to find a solution between legality and realpolitik. What was amazing about this statement was, as John Bolton pointed out, that Van Walsum “had, at last, spoken the unspeakable.” Until then, serious statesmen would not dare to admit publicly that the UN would consider compromising between “international legality” and “political reality.” Van Walsum was willing to say it: The emperor has no clothes.

The conclusion Bolton draws from Van Walsum’s blunder or candor, depending on your point of view, is sobering: Morocco will never permit a referendum, and so there is no reason for the UN to try to stage one. However, since no one will be able to figure out what to do with MINURSO, it is on its way to acquiring a “near-perpetual existence.” In such a capacity, while it could not promote a resolution to the conflict, it is capable of prolonging or complicating it. Thus, terminating MINURSO is appealing because it would either force Morocco to get serious about a referendum, or, if not, it would, at least, remove the obstacle to Morocco’s getting together with Algeria, the proctector of Sahrawi sovereignty, to deal with the problem directly. Opposing Bolton’s plan was the State Department via Eliot Abrams, hawking what we now call the autonomy plan.

CURRENT OBSTACLES TO RESOLVING THE CONFLICT: THE AUTONOMY PLAN

As George Orwell said, there is always room for one more custard pie. Even in serious discussions like these, it is important to be able to stand back and note the absurdities. It has been reported that 168 members of Congress have come out to sign a letter in support of the Moroccan autonomy plan. This has to be put into perspective, and Ian Williams of Britain’s Guardian has done just that. He points to a 1992 poll by Spy Magazine of 24 Republican Members of Congress asking them what they proposed to do about the situation in Freedonia. Freedonia, of course, doesn’t exist. It is the fictional country in the Marx Brothers’ movie Duck Soup. Nonetheless, all the members polled “waffled in a statesmanlike way about the efforts they would take to ensure stability there.” Williams concludes that 160 of the 168 signatories of the autonomy letter had never heard of Western Sahara a month before they sent the letter. “When the learned members of congress rush to sign a fact-free letter on foreign policy, you can be sure there is a lobby at work.” As someone who has spent a great deal of time in the halls of Congress, I say Amen.

More interesting, though, is that most of the 50 members of the House of Representatives African Sub-committee, that is, members who really do deal with African issues daily, signed an opposing letter demanding that the United States support Sahrawi self-determination. But, Williams points out, without Moroccan money behind it, not many heard that story.

When James Baker took over as the Secretary General’s Personal Representative for Western Sahara, Baker met with King Hassan and the POLISARIO leadership about what they wanted, and both said: “We want a free and fair referendum. We don’t want to talk about autonomy. We want to talk about a referendum.” And Baker began the series of European meetings that resulted in the Houston Accords signed by both sides.

Baker failed because even though Morocco signed and sealed its agreement to hold a referendum, (twice!) it simply refused to take the necessary steps to do so. Pace Andre Malraux, kicking over the chessboard is indeed an effective, if not a legitimate, move in chess.

The law in the Moroccan-Sahrawi dispute is clear. It just doesn’t matter:

The World Court found that Morocco’s historical ties to Western Sahara were insufficient to establish sovereignty, but Morocco has ignored that decision.

The World Court also found no legal reason why General Assembly Resolution 1514 (XV) on the decolonization of Western Sahara should not be carried out and, in particular, that the principle of self-determination, in the form of a referendum reflecting the free and genuine expression of the will of the peoples of the territory, should proceed. Morocco has not permitted these things to happen.

Morocco has twice broken its treaty obligations to hold a referendum and now quite simply says “No Way, Jose.”

Morocco illegally invaded Western Sahara in 1975 and has occupied it illegally since that date. The Economist called Morocco’s action an Anschluss. Morocco has ignored Security Council Resolutions condemning its actions and has not budged. As John Bolton has observed, Morocco has de facto control of Western Sahara. It is now trying to stretch that into de jure control through its autonomy plan, which, on the face of it, is, as Emhamed Khadad pointed out in the Wall Street Journal, completely circular reasoning. Morocco’s offering an autonomy plan, in a place it has no legal right to be, to the people of a region it is illegally occupying, is the stuff of Alice in Wonderland.

Instead of provoking cries of shame from the international community, the autonomy plan is actually receiving support. Imagine that, even though Morocco’s plan does not allow for Sahrawis to become independent, ever, a right that is theirs under law. The plan is receiving support even though it is based on the assumption that Western Sahara belongs to Morocco, something the World Court specifically said it does not. It is receiving support even though it would endorse the long discredited and disreputable concept of lebensraum, the expansion of a country’s territory by military force. In fact, as Dr. Zunes has pointed out, it would be the first time since the founding of the U.N. and the ratification of the Charter, that the international community endorsed such a concept, unthinkable to the founders of the United Nations who had just fought a war to end those very kinds of abuses.

Some of my colleagues, former United States ambassadors to Morocco, have come out with a letter endorsing Morocco’s autonomy plan. I am sure that they meant well, but their facts and reasoning generate what the Spanish call verguenza ajena, the embarrassment you feel at someone else’s blunder. For example, they characterize the POLISARIO as an “Algerian-backed rebel group” that “challenges Morocco’s historical sovereignty” over the area, “sometimes referred to as Western Sahara.” Ambassador Breica made a forceful response to these statements, to what is really propaganda. All of us here know better, and it would be tedious to repeat the obvious refutations here. The letter does show the kinds of low tactics, and let us call a spade a spade, the lies, Morocco is not above using to influence public opinion.

The POLISARIO as rebels? Really? I prefer to think this couplet characterizes the POLISARIO:

Cet animal est très méchant,
Quand on l’attaque, il se défend.

In his recent presentation to the United Nations’ 4th Committee on Decolonization, Dr Pedro Pinto Leite noted that the second decade for the Eradication of Colonization is coming to an end, but that Morocco’s colonization of Western Sahara continues unabated and with impunity. Let me suggest that if Morocco’s autonomy plan is accepted by the international community, we can forget about decolonization. The day Morocco’s autonomy plan is accepted, we will be seeing the beginning the first decade of the New Colonialism.

I said earlier that the law on the matter was clear and on the side of the Sahrawis, but it doesn’t matter. Recent developments seem to support this conclusion. Cynics always thought the law didn’t matter: “An international law for nations?” Voltaire queried. “Next they’ll be talking about a code of conduct for highway robbers and gangsters.”

PROSPECTS FOR RESOLUTION

Possible Solutions:

A direct referendum permitting Sahrawi independence as an option or a referendum permitting Sahrawi independence as part of a Morocco autonomy plan. Realistically, neither is going to happen, unless Morocco can be manipulated into taking the referendum seriously. Pope John Paul II once spoke of two possible solutions for Central Europe, one practical and one supernatural: “In one, Our Lord, the Blessed Mother and saints come down and lead the governments to righteousness. The supernatural one is that the governments agree to cooperate with each other.” What we need here is a supernatural solution.

The much-maligned Peter Van Walsum was on to something, although some want to kill the messenger. He was wrong, of course, to suggest that the Security Council decide this issue by off-setting the rights and wrongs of the situation, in a word, the law, with the political realities, but he was reflecting what many people, unfortunately many in my own State Department, are thinking. Machiavelli may have died nearly five centuries ago, but his political philosophy is alive and well, and we have to deal with it and its acolytes like Herr Van Walsum.

There is no future for the Sahrawi people in MINURSO as it now exists and no reason for them to support its continued existence.

In my judgment, John Bolton is right is supporting the elimination of MINURSO because, even if it is not eliminated, the very threat of doing so is likely to force Morocco to take the referendum seriously or face the reality of having to deal with the Sahrawis’ protector, Algeria, a win-win situation. It is, it seems to me, the best option: the one with the highest likelihood of success and the fewest risks. Replacing MINURSO offers hope of a solution, something in very short supply these days.

But, critics will say, what will replace MINURSO if it is gone. Going back to my old friend Voltaire, if you have a bear in your living room, you don’t ask what will replace it. You simply get rid of it.

Thank you.


FRANK RUDDY
U.S. Ambassador (ret.)