Summary and Main Conclusions

Address by Ambassador Ebrahim Saley, Chief Director: North Africa – Summary and Main Conclusions at the Conference on Multilateralism and International Law with Western Sahara as a Case Study, held in Pretoria, South Africa, 4 and 5 December 2008. ----------------- Excellencies; Distinguished Guests; Ladies and Gentlemen; Colleagues; As we reach the conclusion of this Conference on Multilateralism and International Law with Western Sahara as a Case Study, on behalf of the hosts, the Department of Foreign Affairs of South Africa and the University of Pretoria, I would like to thank you all for participating and the speakers in particular for their valuable insight. We are thankful that to the University of Pretoria for having agreed to co-host this Conference with the Department of Foreign Affairs, particularly as the University celebrates its centenary year. This university with its rich heritage of academic excellence provided an appropriate setting for the discussions we have had over the last two days on such an important and relevant issue. Over the last two days we have had the honour and privilege of having heard valuable presentations from some of the world’s foremost experts on the topic that we were discussing: Multilateralism and International Law with Western Sahara as a Case Study. During our deliberations, we have reflected on the status of the territory under international law, the principle of self-determination, the respect for human rights and international humanitarian law, obligations on third states and the lawfulness and/or legitimacy of natural resource exploitation in Western Sahara. Our discussions have shown us that the conflict in Western Sahara and the response from the international community in resolving the issue presents a pertinent case study for the assertion that legality remains the essential prerequisite for the resolution of conflict between nations. We began our discussion by examining the legal claims to Western Sahara. In assessing these claims, there were differing views on the application of self-determination. The one view was that self-determination has become a peremptory norm of international law since the adoption of General Assembly resolution 1514 (XV) on 14 December 1960. Another view put forward was that there cannot be an automatic application of self-determination and that the concept of self-determination has different meanings. The historical claims of Morocco and the Saharawi people to the territory were also examined to ascertain the legality of each of the claims. During the session on the historical background on Western Sahara, we were provided with a fascinating and insightful background into the history of the territory and the origins of its colonial domination. As part of this discussion we were informed of the role of the European powers, Spain and France, in determining the status and borders of the territory and its neighbouring States. It became clear that throughout the period of European domination of the territory, Western Sahara was treated as a separate entity to that of its neighbours, including the Kingdom of Morocco. The classification as to who constitutes the Saharawi nation was also discussed. It became clear that the Saharawi’s are clearly defined as a people. We also explored the role of civil society in the occupied territories and how this is strengthening and becoming a key obstacle to effective Moroccan control over the occupied territories. The unarmed civilian resistance from within was described as a unique opportunity to build on the activities of those operating from outside to resist illegal Moroccan occupation. Analogies were drawn to similar occurrences in East Timor’s fight for independence and the fight against Apartheid in South Africa. It should be recalled that neither the United Nations nor any regional or international organisation, nor any other country in the world, has recognised Morocco’s claims of sovereignty over Western Sahara. The Moroccan territorial claims to Western Sahara have been rejected by the advisory opinions of both the International Court of Justice on 16 October 1975 and the Legal Department of the United Nations on 29 January 2002. During our in depth examination of the 16 October 1975 Advisory Opinion of the International Court of Justice (ICJ), it became clear that the Court made two significant findings. One that the territory was not terra nullius and thus not a territory not occupied by any people. Secondly, the Court asserted that no links of sovereignty existed between the territory of Western Sahara and its neighbours Morocco and Mauritania. Thus there were no ties that would affect the application of General Assembly Resolution 1514 granting the right to self-determination. What became evident during our discussion was that in the case of Western Sahara self-determination does not grant sovereignty, instead it retains or relinquishes sovereignty already granted to the territory by the ICJ decision. The role of the international community, particularly the United Nations and its Security Council was analysed and it became clear that due to the support offered to Morocco by some of the permanent members of the United Nations Security Council, Morocco has succeeded in resisting its international legal responsibilities. The illegal occupation of the territory has never been condemned and Morocco has never been forced to comply with any of it previous undertakings such as the agreement to hold a referendum. It was noted that the second decade for the eradication of colonisation is coming to an end, yet Morocco’s colonisation of Western Sahara continues unabated and with impunity. Moroccan has presented its autonomy plan as its only solution to the conflict, however it was pointed out that Morocco was offering a plan “in a place it has no legal right to be to a people of a region it is illegally occupying”. One possible solution was offered for moving the current stalemate forward and this was to terminate the mandate of MINURSO as a means of placing pressure on Morocco. However it was also pointed out that MINURSO does have a positive role to play and its departure would be a symbol of the international community washing its hands of this conflict, which is something we cannot afford to do. Instead there was a view that MINURSO’s mandate should be strengthened to allow it to play a more meaningful role. The Security Council should be urged to provide MINURSO with a mandate to monitor and report on the human rights situation within its area of operations. The presence of MINURSO serves as a reminder as to why it was mandated to operate in the first place, i.e. to administer a referendum. We were reminded that Africa can never regard itself free from colonial domination if any part of it remains occupied. However imperfect it may be, the sanctity of colonial boundaries is a principle that that has been uniformly applied to ascertain the post-colonial boundaries of African states. To alter this fundamental principle would have far reaching consequences all over the continent. During our discussions, we explored the concept of occupation. We were informed that occupation law is the very antithesis of self-determination and that citizens living under military occupation suffer serious, widespread and prolonged abuses of their human rights and that this is the case for the Western Sahara. We were provided with first-hand testimony of a human rights activist that faced these human rights abuses. We have also reached broad consensus that the issue of Western Sahara is more than just an issue about self-determination. It is also an issue of the violation of the international law and continued occupation. There cannot be good occupation and bad occupation. There is only bad occupation be it in Palestine or in Western Sahara. Should the occupation continue, without affording the right to self-determination for the people of Western Sahara, it would be the first time since the founding of the UN after the Second World War that the international community would endorse a concept of occupation by force for the purpose of expanding ones territory. In examining the role of natural resources in the Western Sahara conflict, we were informed that the legal opinion provided to the United Nations Security Council by the UN Legal Counsel in 2002 made it clear that if exploration and exploitation activities were to proceed in disregard of the interests and wishes of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self Governing Territories. Furthermore we discussed how the exploitation of natural resources in Western Sahara plays a central role in strengthening Morocco’s presence in the occupied territory. In summing up all the interventions that we have heard, it becomes clear that the Saharawi people have been denied their just and legal right to determine their own political destiny. We are concerned that such denial is a reflection of the erosion of a rules-based system that we had collectively agreed to in 1945 to ensure a stable and peaceful world. We are concerned that despite the reflection of global opinion that the 192 Member States reflect each year through their votes in the Fourth Committee of the General Assembly that their repeated call to see Western Sahara, a declared and undisputed Non-Self Governing Territory, determine its own political destiny and remove the yolk of colonialism, continuously go unheeded. We are concerned that acts of and denial, non-cooperation and further non-action could contribute to the breakdown of these codified set of rules – which we understood to be mutually beneficial and inclusive or else we would not have adopted them in the first place.

“Western Sahara: from stalemate to statehood”

This intervention was presented by Mr Mhamed Khadad Saharawi Coordinator with the MINURSO during the works of the “International conference on multilateralism and international law, with Western Sahara as a case study”, held in Pretoria, South Africa, 4 and 5 December 2008. -------------- “Western Sahara: from stalemate to statehood” Ladies and gentlemen I am deeply grateful to the South African Department of Foreign Affairs and the University of Pretoria for hosting this international conference. I want to extend on this occasion my sincere thanks and gratitude to the people of South Africa and its government for their dedication to peace, stability and freedom across the African continent. The Frente POLISARIO and the Saharawi people have always enjoyed the support and solidarity of the South African. We are eternally grateful for this support, which has sustained us in the past and continues to do so today. We can achieve little without the fortitude of our friends and allies. Ladies and Gentlemen The Charter of the United Nations represents a social pact that underpins relations between states and the basic tenants for human interaction based on commonly accepted legal and moral principles. This does not include the law of the jungle. The UN’s multilateralism was aimed at creating an international democratic order in which all states start from a level playing field. Decolonization was the promise of the United Nations Charter and was born out of the legitimate struggle of colonies to exercise their right to self-determination Any analysis of Western Sahara must start from this basic premise. Thirty-three years have now passed since the invasion of my country by Morocco. It is worth dwelling for a moment on that time span. Thirty-three years of occupation and dispossession. Thirty-three years in which the international community has had more pressing concerns. Thirty-three years of oppression and the systematic abuse of the human rights of my people inside their territory. And thirty-three years of displacement for the refugees driven from their homeland, left to dwell in camps in the desert, longing for their return. Those thirty-three years speak clearly to all of us here today. For the Sahrawi, multilateralism and international law have so far produced very little. We remain oppressed and dispossessed, and Morocco remains unchallenged in its illegal occupation of the territory of Western Sahara, the last colony in Africa. Since the International Court of Justice pronounced its emphatic views on the subject in 1975, there have been scores of UN resolutions – in both the Security Council and the General Assembly – reiterating the right of the Saharawi to a process of self-determination. But to this day, our people have been signally unable to exercise that right. As recognized by the Office of the UN High Commissioner for Human Rights in its 2006 report, all human rights abuses in the territory flow directly from the denial of one fundamental right - the right to self-determination. After sixteen years of war, the UN mission for the referendum in Western Sahara – MINURSO – was deployed in 1991, to monitor and carry out the exercise of that right. Despite its long history in the territory, MINURSO has barely begun that task, let alone complete it. Morocco, with the complicity of certain members of the Security Council, has succeeded in serially obstructing its work for more than 17 years. And despite this abject failure, the Security Council continues to renew the mission’s mandate, doing nothing to challenge or circumvent Morocco’s blocking tactics. MINURSO is a living embodiment of the UN’s failure to enact its own decisions. What is the right way forward? It is tempting to lose hope in international law, lose hope in multilateralism, and lose hope that a peaceful resolution is possible. It begs the question: should the Polisario return to battle to dislodge the occupier from our land? There is indeed considerable frustration both inside the territory and in the refugee camps that the international community has manifestly failed its own standards, its own laws, in its feeble approach to the Western Sahara. And despite this neglect, we have been steadfast in our resolve to honor our side of the ceasefire agreed in 1991, waiting for the international community to deliver. We have very little to show for our patience. And patience has its limits. Against this backdrop, I will now lay out simply the key themes for the Polisario’s political and diplomatic strategy going forward, all with a view to ending the occupation, and at last liberating our people and our land. In other words, this is the current blueprint for our journey from “stalemate to statehood”. Theme 1: the United Nations During the lifetime of the United Nations, over 80 colonies have attained their independence. But the so-called UN process of decolonization has in our case been an empty one. The Polisario would welcome a peaceful and mutually agreeable fulfillment of the international community’s responsibility. But following the involvement of more than ten special representatives and personal envoys, three unfulfilled peace plans, more than one billion dollars in MINURSO budgets and dozens of UN resolutions, the Saharawi people continue to wait patiently for a democratic and legitimate outcome. The status quo cannot continue indefinitely. Following four rounds of the Manhasset talks, we wait again for the appointment of a new Personal Envoy, charged with resuming talks by mandate of the Security Council. We are very concerned at reports of ongoing Moroccan efforts to delay the appointment of the Secretary-General’s chosen candidate, Ambassador Christopher Ross, and to somehow insist that Ross pick up where his predecessor, Peter Van Walsum, left off. The new Personal Envoy must be free to discharge his work, operating according to his mandate from the Secretary-General and the Security Council, and without interference from either party. The Secretary-General must confirm the appointment without further delay. The Polisario was happy to work with Peter van Walsum. But his personal, and final, statement to the UN Security Council earlier this year, was frankly unacceptable. He overstepped his role as a mediator in the negotiations. Van Walsum in essence argued that the only “realistic” solution to the dispute was for the Polisario to accept the Moroccan colonial fait accompli, and to exclude the option of a free and open process of self-determination with the possibility of independence. There are several reasons why this statement was unacceptable: first, it is not for the UN to say which part of international law it chooses to ignore - if the UN sides with an illegal occupier, there is no hope for the dispossessed, the occupied, worldwide; second, Van Walsum’s statement completely disregarded the very reasonable proposal for a solution put forward by the Polisario on 10 April 2007; and third, Van Walsum’s statement was itself unrealistic. There will be no solution which does not in some way reflect the legal requirement for decolonization, and one that allows the people of Western Sahara to exercise their fundamental right to self-determination. Morocco’s “autonomy” plan claims to fulfill this right by offering a vote on that autonomy. But to rightfully reflect the free expression and will of the people, the process cannot be predetermined nor circumscribed. It must leave all options on the table, including the option for our people to choose the establishment of an independent state. Of all the world’s institutions, the UN must reflect this basic legal reality. This reality has been reflected in the language of every single Security Council resolution since the invasion, through to this day. It is a reality well understood by previous Personal Envoy, James Baker, and one which Christopher Ross will need to accommodate and ultimately reflect in his work, once appointed. To this end, he will enjoy our full cooperation. We do not want nor expect our own fait accompli, just respect for international law. We are ready to discuss with Morocco and the international community, as reflected in our proposal of 10 April 2007, the nature and contours of a future Western Saharan state within its internationally recognized borders. We are ready to accommodate in some way the security needs of others and to address and respect the rights of all those who now live in the Western Sahara, including Moroccans. A Saharawi state would be cognizant of the concerns of our neighbours further to the north, including migration, people and drug smuggling, the sustainable development of natural resources and the ever-present scourge of terrorism. We are ready to discuss how our state can properly address these issues. We stand ready to cooperate. What more could be expected of us? This is our firm commitment. Theme 2: Natural resources The second element or pillar of our campaign is to end the illegal exploitation of Western Sahara’s natural resources. It is clear to all observers that Morocco’s theft of our natural endowments is an important driver of its ongoing illegal occupation. And the knowing customers for these illegal exports are equally at fault. On most estimates, Morocco’s exploitation of Western Saharan phosphates alone earns it at least $2 billion per year in illegal income, and likely much more. And to its considerable discredit, the EU pays Morocco tens of millions of dollars a year to allow European vessels to pillage the world-class fisheries resources that rightfully belong to the people of the Western Sahara. As confirmed in 2002 by then-UN Legal Counsel Mr Hans Corell, the exploitation of these resources, in flagrant disregard of the interests and wishes of the people of Western Sahara, is in clear violation of international law. These illegal activities must be curtailed and terminated, and has become a focus for our political strategy and decision-making. The Polisario is considering - with its partners and allies - what steps it can take legally and diplomatically to combat this theft of property. All options are on the table. We call upon all states to ensure that their companies do not collaborate with Morocco in this illegal behaviour. We call upon the EU to exclude Western Saharan waters from the scope of its fisheries arrangements with Morocco, and to do the same in respect of any agreement that flows from Morocco’s pursuit of enhanced status with the EU. It is bizarre and unconscionable that the EU, which prides itself on its commitment to human rights and international law, should collaborate in, and benefit from, the theft of Western Sahara’s resources. The Saharawi Government will not allow this to continue. Theme 3: Human Rights The third pillar of our campaign is to draw attention to Morocco’s continuing and systematic abuse of Saharawi human rights. Today, this year and for thirty-three years of occupation, Morocco has repressed the Saharawi people. It imprisons Saharawis illegally; it denies them proper trial. Saharawis in the territory are regularly arrested without cause, beaten and sometimes tortured. Some have died. And Morocco has still failed to account for the more than 500 Saharawi prisoners who have disappeared following arrest by Moroccan authorities. This record of abuse has been documented by several international human rights organizations, including Amnesty International and Human Rights Watch. Francesco Bastagli, the former head of MINURSO, testified bravely and honestly to the General Assembly Fourth Committee this year that the UN has failed to protect the Saharawi people in their homeland. Only once in thirty-three years of occupation – in 2006 – did the UN send a mission by its human rights officials. The as-yet unreleased report by the Office of the High Commissioner for Human Rights recommended clearly that the UN should institute regular monitoring of human rights in the territory and the camps, a recommendation which we in the Polisario are happy to accommodate. But this recommendation, now over two years’ old, has not been implemented by the UN. No other UN peacekeeping mission operates without this indispensible requirement. There is no reason why MINURSO should be the lone exception to the rule. Concluding remarks Ladies and gentlemen I have described for you today the tapestry of the long Saharawi struggle – the journey from stalemate to statehood. The common thread for this journey has, and will always be, the inalienable right to self-determination. To those who would bet on our resolve weakening, it will not. Thirty-three years of determination and suffering are not enough? Backed by international law, full membership of the African Union, and a growing number of friends a cross the world, we stand ready to take our rightful place among the community of nations. We are ready to assume the mantle of statehood Our struggle is symbolic of a broader theme, which our hosts here in South Africa know as well as anyone – the struggle for liberation and the end to colonialism. We are inspired by South Africa’s victory in this struggle, and we are heartened by its solidarity with us as we walk our own ‘road to freedom’. South Africa’s strong support, and its special influence in the Security Council over the last two years, has meant a world of difference for the Sahrawi people. Isn’t it high time for Africa to have a permanent seat in the Security Council? Our struggle is not one of choice. Self-determination is a fundamental human right, a peremptory norm of international law, and a sine qua non for resolving the dispute over Western Sahara. Without a free and fair referendum, there can be no way forward. Thank you.

Intervention of South African Deputy Minister Sue van der Merwe

Address by Deputy Minister Sue van der Merwe on Multilateralism and the Respect for International Law as Strategic Objectives of South Africa’s Foreign Policy at the Conference on Multilateralism and International Law with Western Sahara as a Case Study, held in Pretoria, South Africa, 4 and 5 December 2008. --------------- Professor Pistorius, Vice Chancellor of the University of Pretoria Dean of the Diplomatic Corps, Amb Alzubeidi Excellencies, Heads of Mission accredited to South Africa Ambassador Hans Carrel, Ambassador Frank Ruddy, Mr Khadad Prof El Ouali Members of the Parliament of South Africa Speakers and Moderators Distinguished Guests Ladies and Gentlemen Colleagues, Fifty-one years ago, a young senator from Massachusetts with his eye on the White House took a big gamble. On the Senate floor, before his astonished colleagues, John F. Kennedy gave a controversial speech that questioned nearly all of the assumptions of American foreign policy and delved deeply into a topic that no one wanted to talk about. He was instantly denounced by the White House, the State Department, American allies, and the press. But the speech eventually won him admirers around the world, and brought him closer to his party’s nomination for president. The immediate subject of Kennedy’s speech was the war that France had been fighting for three years against insurgents in Algeria. When Kennedy rose to deliver the speech, on July 2, 1957, he began with a ringing statement. “The most powerful single force in the world today,” he said, “is neither communism nor capitalism, neither the H-bomb nor the guided missile - it is man’s eternal desire to be free and independent.” Hardly anyone would disagree with that. But he continued with a provocative thought - that “imperialism” was the chief foe of freedom. “Thus the single most important test of American foreign policy today is how we meet the challenge of imperialism, what we do to further man’s desire to be free.” For centuries the masses of our people, throughout our continent, waged heroic struggles to free all our countries from the inhuman systems of colonialism and apartheid. Even after most of our countries were free, those who had liberated themselves made the determination that they could only enjoy the fruits of freedom and independence when the rest of the continent was liberated. South Africa as a member of the United Nations and the African Union is obligated to actively support the legitimate right of the Saharawi People to choose their own destiny. In this support, South Africa remains committed to the following principles and objectives: The right to self-determination and the recognition of colonial borders Respect for international humanitarian law and the rendering of humanitarian assistance and support The principles of multilateralism and international legality and the centrality of the African Union and United Nations in the resolution of the conflict The non-exploitation of natural resources of the illegally occupied territory Stability and integration of the Maghreb Union In South Africa, the journey to freedom and democracy was one in which many people made great sacrifices. South Africa endured many trials and overcame many obstacles to get to the first democratic election in 1994. It was indeed a long struggle that claimed many lives. Ours was a just struggle and ultimately South Africans achieved that which they had fought so hard to bring about, a new non-racial, non-sexist democratic South Africa. South Africans also know that they were not alone in their struggle against apartheid. On our continent and throughout the world people stood in solidarity with the struggle against apartheid. This international solidarity against apartheid in South Africa was by all accounts a critical factor in creating the conditions for the peaceful transition to the new South Africa. A new South Africa that was ultimately founded on principles and values enshrined in our Constitution. One of the cornerstones of our democracy is the Bill of Rights which enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom for all South Africans. South Africa’s foreign policy is guided by this principle and the vision of “a better South Africa in a better Africa and a better World,” that is, a better life for all. In other words, human and peoples rights remain central to our conduct of international relations. Key to this foreign policy is the pursuit of a rules based international order. In an increasingly conflict ridden world, the role of international law and the continued affirmation of the legal rights of people and nations through the promotion of multilateralism, human rights and democracy are the central tenets of a policy of securing peace and prosperity at home, on the African continent and the world at large. The right to self-determination was the philosophical basis upon which our own nation, South Africa, was created. Self-determination is enshrined in the United Nations Charter and the African Union Constitutive Act and is regarded as a basic human right. The United Nations has passed many of resolutions reaffirming the indigenous Saharawi’s right to self-determination, establishing the Mission for the Referendum in the Western Sahara (MINURSO) in 1991. The United Nations has been unequivocal in its support of this right and has indicated that when territories such as the Western Sahara are transitioning out of colonialism, the people of those territories should have the option of freely choosing between independence, association with an independent state, or integration with an independent state. During the last two years that South Africa served as a non-permanent member of the UN Security Council we continued to support the call for the right of self determination of the people of Western Sahara. South Africa’s recognition of the Saharawi Arab Democratic Republic on 15 September 2004 came in the wake of Morocco’s decision to rule out any possibility for a referendum in Western Sahara. Such a response by the Government of Morocco to the UN Peace Plan effectively denies the people of Western Sahara their right to self-determination, contrary to fundamental and inviolable international law and the earlier solemn commitments. The conflict in Western Sahara and the response from the International Community in resolving the issue presents a pertinent case study for the assertion that legality remains the essential prerequisite for the resolution of conflict between nations. It is foreseen that this Conference on Multilateralism and International Law with Western Sahara as a Case Study will seek to reflect on the status of the territory under international law, the definitions and international implications of self-determination, the respect for human rights, issues of occupation and sovereignty, obligations on third states and the lawfulness and/or legitimacy of natural resources exploitation in Western Sahara. The Saharawi Arab Democratic Republic is a fully fledged member of the African Union. The SADR’s membership in the AU is one of the most divisive issues on the continent, and presents the continent with what can be regarded as its biggest moral dilemma. The protracted Western Sahara dispute is detrimental to the development and reconstruction ambitions of the continent, especially in relation to its stability and security, but also in terms of the regional economic integration of the Arab Maghreb Union (AMU), which has remained inactive for the past fifteen years as a result of the conflict. Any solution must thus also be based upon African Union’s Constitutive Act, in particular, the principle of sanctity of inherited colonial borders in Africa and the right of the peoples of former colonial territories to self-determination. Short of this requirement, the conflict in Western Sahara remains an outstanding decolonisation issue on the agenda of the African Union. Presently some 160 000 Saharawi refugees lead a harsh existence in the Algerian desert. A 2 720 kilometres heavily mined wall in the desert separates them from their homeland. The Saharawi refugees have been waiting for more than 30 years to return home in a dignified way. It is time for the international community to act to end this intolerable and unjust situation. South Africa will continue to draw attention to the human rights violations in the occupied territories. Whilst doing this, we will intensify efforts to respond to the urgent humanitarian and other assistance within the framework of the African Renaissance Fund (ARF). South Africa is convinced of the absolute need to reduce conflicts on the African continent. All of us need to work together to help resolve the current stalemate, which, if unresolved, could ill afford another major African humanitarian crisis. The occupation of Western Sahara is a unique situation that demands a prompt and just solution. The native Western Saharans’ right to self-determination is thus doubly important: for the sake of self-determination and for the sake of international order. A just and lasting solution for the people of Africa’s last remaining colony is essential for the peace and prosperity of the African Continent as a whole. That just and lasting solution is the right of the Saharawi people to express their will through a referendum that will determine the democratic will of the Saharawi people. In Conclusion. May I welcome especially all our international guests and thank you for participating in this important conference. Your presence underscores the fundamental importance of multil-lateralism which is so critical in our international interactions. Thanks you all for making this journey to South Africa. We hope you will enjoy your stay, and that you visit us again, perhaps for more recreational activities. Issued by the Department of Foreign Affairs Private Bag X152 Pretoria, 0001 04 December 2008

The Legal Claim to the Right to Self-Determination and Decolonisation

This intervention was presented by Dr Sidi M. Omar. Member of the POLISARIO Front Negotiating Team during the works of the “International conference on multilateralism and international law, with Western Sahara as a case study”, held in Pretoria, South Africa, 4 and 5 December 2008. The Legal Claim of the Sahrawi People to the Right to Self-Determination and Decolonisation The theme I am talking about today is “the Legal Claim of the Sahrawi People to the Right to Self-Determination and Decolonisation”. On an introductory note, it is relevant to recall that 45 years after the United Nations had recognised and called for the exercise of the right of the people of Western Sahara to self-determination, the Sahrawi people have not yet been able to exercise that right. This is obviously due to the Moroccan occupation and forcible annexation of Western Sahara in 1975, which has constituted a clear denial of that right and an enduring violation of a fundamental norm of international law. It is also a reminder of a responsibility incumbent upon the United Nations and the international community as a whole to redress this injustice by ensuring a speedy completion of the decolonisation process in Western Sahara. In this context, the paper will discuss the legal basis for the right of the people of Western Sahara to self-determination and decolonisation. More precisely, it will look into the process by which that right has been institutionalised by the United Nations and its relevant subsidiary organs. The paper will also examine how this right has been violated as a result of Morocco’s occupation and illegal annexation of Western Sahara in 1975. The United Nations successive efforts to tackle this situation will be briefly discussed with special emphasis on the current UN-led peace process in the Territory. Overall, the paper will seek to demonstrate that the question of Western Sahara is, in essence, a decolonisation issue, and hence the exercise by the Sahrawi people of their inalienable right to self-determination and independence constitutes the only legal and political basis for achieving a just, viable and lasting solution to the conflict in Western Sahara. Before examining the issue at hand, it is perhaps useful to begin by talking very briefly about the right to self-determination in order to establish the context in which this right will be discussed in relation to the people of Western Sahara. Self-determination and international law It is widely acknowledged that it was with the adoption by the General Assembly of resolution 1514 (XV) on 14 December 1960, which contained the Declaration on the Granting of Independence to Colonial Countries and Peoples, that self-determination emerged as a right rather than a simple principle in the UN Charter. The political imperative of decolonisation also served as the driving force behind that shift and consolidated the right of colonial peoples to self-determination as expressed later in the international human rights covenants of the 1960s as Hurst Hannum (1990) has suggested. Although the issue remains unsettled, self-determination has increasingly been considered a peremptory norm of international law (Soroeta Liceras 2001), of which violation is expressly characterised as a crime in accordance with General Assembly resolution 2621 (XXV) of 12 October 1970. Resolution 1514 (XV) clearly establishes that the right to self-determination is to be exercised and implemented in accordance with the “freely expressed will and desire” of the peoples concerned (para. 5). In addition, General Assembly resolution 1541 (XV), of 15 December 1960, details the principles that determine the outcomes to which the decolonisation of a Non-Self-Governing Territory could lead. In sum, by virtue of resolution 1514 (XV) and other legal instruments, the colonial peoples were given an inalienable right to self-determination to be exercised by the establishment of an independent state, integration or association with another state. In the later cases, the outcome should be the result of the free choice by the people of the territory concerned and expressed through informed and democratic processes. The people of Western Sahara In its advisory opinion on Western Sahara of 16 October 1975, which will be discussed later, the International Court of Justice referred to self-determination as a right held by “peoples”. Héctor Gros Espiell (1980) has interpreted “people” in this sense to mean “a specific type of human community sharing a common desire to establish an entity capable of functioning to ensure a common future”. In this context, the ICJ held in the case of Western Sahara that (quote): The information furnished to the Court shows (a) that at the time of colonisation Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terra nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the chiefs of local tribes (end of quotation). It is true that the ICJ was not requested to give its opinion on the existence, or lack thereof, of a Sahrawi people at the time of Spanish colonisation. However, the significance of its conclusions, which were drawn from the many historical facts at its disposal, lies in affirming that indigenous peoples inhabited Western Sahara prior to Spanish colonisation, and that due to their subsequent subjection to alien domination they were entitled to exercise their right to self-determination. Besides, the ICJ finding also serves to refute the Moroccan and Mauritanian claims that denied the existence of a distinct socially and politically organised pre-colonial Sahrawi entity. I understand that there will be papers presented on various historical aspects of the question of Western Sahara, and therefore I will not go into detail about the historical, social and political processes that had progressively led to the formation of the Sahrawi modern national identity. However, suffice it to say that in pre-colonial times, the Sahrawis lived as one independent community and developed their own socio-political structures that were distinctly different from those established by neighbouring peoples that inhabited northwest Africa. It was these idiosyncratic elements, and many others, that progressively constituted the distinctiveness of the Sahrawi society over the centuries. It was then during the colonial era that an incipient Sahrawi national consciousness emerged. It was initially translated into demand for greater political participation in the affairs of the Territory, and then developed into renewed anti-colonial sentiments creating the conditions for the emergence of Sahrawi movements with a strongly nationalist direction. The emblematic moment of this historical process was the creation of the Frente POLISARIO on 10 May 1973 as an anti-colonial and liberation movement that was then recognised by the UN as the legitimate representative of the Sahrawi people. The second historic event was the proclamation of the Sahrawi Arab Democratic Republic (SADR) on 27 February 1976 as the embodiment of the collective will of the Sahrawi people to freedom and independence. The Sahrawi Republic is a founding member of the African Union and has been recognised by more than 80 countries including the Republic of South Africa. In view of the above brief discussion of self-determination and the formative stages of the Sahrawi national identity, it can concluded that it was logical for the Untied Nations and its relevant subsidiary organs to affirm the applicability of the right of self-determination to the people of Western Sahara and set in motion a process to decolonise the Territory. The United Nations and the decolonisation of Western Sahara The involvement of the UN in the issue of Western Sahara dates back to 1963 when the Territory was placed on the list of Non-Self-Governing Territories under Chapter XI of the Charter. As may be recalled, the list included those territories whose peoples had not yet attained a full measure of self-government at the time. On 16 December 1965, the General Assembly adopted resolution 2072 on what was then called Spanish Sahara, in which it recalled resolution 1514 (XV) and requested Spain to take all necessary measures to liberate the “Spanish Sahara from colonial domination”. By virtue of this resolution, Spain was also recognised as the “administering power” of the Territory with the attendant obligations as set out in the article 73[e] of the UN Charter. All resolutions adopted by the General Assembly since 1966 have a common denominator, which is the recognition of the inalienable right of the people of Western Sahara to self-determination, and the need for its implementation through a free and fair referendum on self-determination in accordance with resolution 1514 (XV). This position has ever since been reiterated every year by the General Assembly. It is very important to underline, in this regard, that Morocco itself had in effect recognised the right of the people of Western Sahara not only to self-determination but also to independence, well before it embarked on its expansionist project leading to the invasion and illegal annexation of Western Sahara in 1975. I will cite a few documented statements made by Moroccan officials to illustrate this. 1. The Moroccan delegate to the Committee of 24, Day Ould Sidi Baba, declared on 7 June 1966 that (quote): I ask for the independence of Western Sahara as soon as possible and this should be an authentic independence, hence we can get over the actual impasse” (end of quotation). 2. The Moroccan Minister of Foreign Affairs, Mohamed Charkhawi, declared at the 21st Session of the General Assembly, held on 13 October 1966, that (quote): “Morocco supports a real independence for Western Sahara, putting the future of the region in the hands of its sons which in the context of liberty will decide freely on their self-determination” (end of quotation). 3. The late King Hassan II, King of Morocco, stated during a press conference on 30 July 1970 the following (quote): “Instead of going on claiming the territory of the Sahara, I would make the specific request that a popular consultation takes place, assuring that the first result being the departure of the non-Africans and allowing the people of the Sahara to choose between life under the Moroccan aegis, under their own aegis, or under any other aegis (end of quotation). 4. During the meeting of the Council of Ministers of the Organisation of African Unity (OAU), held in Rabat from 5 to 12 June 1972, Morocco worked actively for the adoption of resolution CM/Res. 272 (XIX), which called on Spain, the administering power of Western Sahara, to enable the people of this territory, (quote) “to exercise their right to self-determination and independence without delay and in conformity with the Charter of the United Nations” (OP2) (end of quotation). These are just a few examples that demonstrate, beyond any doubt, the recognition by Morocco of the right of the people of Western Sahara not only to self-determination but also to independence, well before it decided to deny them that right by invading and annexing the Territory in 1975. Denial of self-determination: Morocco’s illegal annexation Before examining how Morocco violated the right of the people of Western Sahara to self-determination, which it had publicly recognised and supported, it is important to say a few words about Morocco’s territorial claims to Western Sahara. There is ample evidence that Morocco’s claims to the Territory originated in the expansionist ideology of the “Greater Morocco” advanced in the late 1950s by Allal el-Fasi, the leader of the ultranationalist Istiqlal party, shortly after Morocco gained its independence from France in March 1956. This ideology, which was fully embraced by the monarchy, asserted that the then Spanish Sahara, all of Mauritania, a large part of western Algeria and even St. Louis du Sénégal and a slice of northern Mali (including Timbuktu) all belonged historically to Morocco (Villar 1982; Hodges 1983a; Pazzanita 2006). However, in practice Morocco’s numerous claims were fraught with contradictions. For instance, by the early 1960s, Morocco had quietly dropped its claims to parts of Mali and Senegal. The claim to Mauritania was upheld throughout the 1960s, until 1969 when Morocco finally recognised the country as an independent state. As for Algeria, Morocco launched a failed military campaign to take forcefully part of the Algerian western desert in 1963 in what came to be known as the “Sand War”. After dropping its territorial claims to the other countries, Morocco centred its attention on the then Spanish Sahara to which it began laying claims publicly. In lack of any legal basis for its claim, Morocco, who was then joined by Mauritania, requested the General Assembly to refer the issue to the International Court of Justice. By virtue of General Assembly resolution 3292 (XXIX) of 13 December 1974, the ICJ was requested, without prejudice to the application of the principles embodied in resolution 1514 (XV), to give an advisory opinion on the status of Western Sahara and any legal ties between the Territory and the two claimant countries at the time of Spanish colonisation. It is important to note that the General Assembly’s decision to ask for an advisory opinion from the ICJ was to enable it to determine the policy to be followed in order to accelerate the decolonisation process in the Territory (para. 3, 3292). In its historic advisory opinion on Western Sahara, issued on 16 October 1975, the ICJ very clearly established that (quote): The materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory (end of quotation). Morocco was hoping that its claim to the Territory would be legally endorsed by the ICJ. The advisory opinion, however, dealt a heavy blow to its plans and put the monarchical regime in a very difficult situation. It is significant to note at this point that the rule of King Hassan II of Morocco was challenged by two coup d’état in July 1971 and August 1972. Although the king survived both attempts, the mounting discontent in the country, particularly amid the Moroccan military, made it even more difficult for the monarchy, thus stepping up its search for an outlet for its domestic problems. This summarises, in some way, the real reasons behind Morocco’s move to invade and annex Western Sahara in 1975 contrary to its earlier stated position and in violation of UN resolutions and the ICJ ruling. It is significant to underline, in this regard, that neither the United Nations nor any state in the world has recognised Morocco’s claims of sovereignty over Western Sahara and its illegal annexation of the Territory. In its resolution 380, adopted unanimously on 6 November 1975, the Security Council “deplored” the holding of the Moroccan orchestrated “Green March” into Western Sahara, and called upon Morocco “to withdraw from the territory of Western Sahara all the participants in the march” (OP2). In its resolutions 34/37 of 21 November 1979 and 35/19 of 11 November 1980 respectively, the General Assembly, whilst “reaffirming the inalienable right of the people of Western Sahara to self-determination and independence”, deeply “deplored the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco” (OP 5&3). Furthermore, the former Under-Secretary-General for Legal Affairs, the Legal Counsel, Hans Corell, made it very clear, on 29 January 2002, that (quote): “The Madrid Agreement [signed between Spain, Morocco and Mauritania on 14 November 1975] did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power” (end of quotation). It should be mentioned that Mauritania, by virtue of a peace treaty signed with the Frente POLISARIO on 5 August 1979, renounced to its territorial claims over Western Sahara. As indicated above, the Moroccan occupation and forcible annexation of Western Sahara in 1975 has constituted a clear denial of the right of the Sahrawi people to self-determination as well as an enduring violation of a fundamental norm of international law. It is also a reminder of a responsibility incumbent upon the United Nations and the international community as a whole to redress this injustice by ensuring a speedy completion of the decolonisation process in Western Sahara. UN peace process in Western Sahara This was the context in which the United Nations and the Organisation of African Unity deployed their joint efforts to elaborate a peace plan aiming at enabling the people of Western Sahara to exercise their right to self-determination in line with General Assembly resolutions and the UN doctrine relating to decolonisation. It is important to note, in this regard, that the late King Hassan II of Morocco accepted the idea of holding a self-determination referendum in the Territory during the OAU submit held in Nairobi in 1981. In October 1983, the same King Hassan II stated before the 37th Session of the General Assembly that (quote): “Morocco wants to tell you that it wants the referendum. Morocco wants to tell you that it is ready for the referendum to be held tomorrow if that what you want. Morocco is willing to grant all the help needed to all observers wherever they come from to reach a cease-fire and hold a free, fair and just consultation. After all, Morocco is solemnly committed to and to abide by the results of the referendum” (end of quotation). In August 1988, Morocco accepted the Settlement Plan, which was jointly elaborated by the UN and the OAU, and endorsed by the Security Council resolutions 650 (1990) and 690 (1991). As may be recalled, the fundamental objective of the plan was to organise a free and fair referendum on self-determination so as to allow the people of Western Sahara to “choose between independence and integration into Morocco” (para 31, S/21360). The UN mission for the Referendum in Western Sahara (MINURSO) was entrusted with the holding and supervision of the referendum. In September 1997, Morocco committed itself once again to the referendum on self-determination and to the options already agreed by the two parties, namely independence and integration, when it signed the Houston Accords, negotiated by the two parties under the auspices of former US Secretary of State, James Baker III. As a result of Houston Accords and Baker’s continued involvement, MINURSO managed to complete the identification of potential voters for the referendum by January 2000. Of the approximately 200,000 applications to participate in the referendum, most of them lodged by Morocco, MINURSO eventually concluded that only 86,386 were eligible to take part in the vote. With the voter rolls established, the next step was obviously to hold the referendum. However, Morocco suddenly declared its unwillingness to go forward with the Settlement Plan (S/2002/178 of 19 February 2002, para.48) alleging arbitrarily that it was unimplementable. The fact remains that it was the fear of losing the referendum that was the reason behind Morocco’s reneging on its commitments under the peace plans to which it had officially agreed, despite the fact that they were endorsed by the Security Council and supported by the General Assembly. In order to break the impasse created by Morocco, James Baker III put forward the Peace Plan for Self-determination of the People of Western Sahara (S/2003/565, annex II), or Baker Plan. Thinking that the reason for Morocco’s rejection of the Settlement Plan was its concern that the Sahrawi electorate would overwhelmingly vote in favour of independence, Baker proposed the enlargement of the electoral body in the referendum to include Moroccans residing in Western Sahara until 31 December 1999. In Baker’s own words, “this would have given voice to all Moroccans who had moved into Western Sahara during the occupation”. In its resolution 1495 (2003) of 31 July 2003, the Security Council strongly supported the Baker Plan as “an optimum political solution” (OP1) to the conflict, and “call[ed] upon the parties to work with the United Nations and with each other towards acceptance and implementation of the Peace Plan” (OP2). As a gesture of goodwill, the Frente POLISARIO officially accepted the plan in July 2003 despite the risks it involved. In his report (S/2003/1016) of 16 October 2003, the Secretary-General recalled that the (quote) “the acceptance of the peace plan by the Frente POLISARIO now offers a window of opportunity for solving the long-standing dispute”, and urged “Morocco to seize the opportunity and positively engage in the process by accepting and implementing the plan” (para. 27) (unquote). To Baker’s surprise, Morocco rejected his plan under the pretext that the referendum included the option for independence. In his report (S/2004/325) of 23 April 2004, the Secretary-General pointed out that “Morocco does not accept the Settlement Plan [including the independence option] to which it had agreed for many years (para. 26). In fact, the reason for Morocco’s reneging on its commitments is the fact that it knows very well that Western Sahara is not Moroccan and that it may lose it if a referendum on self-determination was to be held even with the participation of Moroccan citizens residing in Western Sahara. In April 2004, Morocco went as far as to declare its official rejection of any solution that would not ensure, from the outset, its annexation of Western Sahara. It was then very clear that Morocco was acting in bad faith in implementing the Settlement Plan and Houston Accords, whilst using all deceiving tactics to mislead the Security Council and the international community at large. Its rejection of Baker Plan, described unanimously as a “fair and balanced approach” and its so-called proposal of autonomy also show its lack of political will to resolve the conflict in a peaceful, just and lasting manner in line with UN resolutions and doctrine relating to decolonisation. The fact that Morocco has not yet given its approval of the new Personal Envoy for Western Sahara, Ambassador Christopher Ross, is another example of this uncooperative and rejectionist attitude. Meanwhile Morocco continues to violate human rights of Sahrawi civilians in the occupied parts of Western Sahara as documented by many international organisations and highlighted by the Secretary-General in his latest reports on Western Sahara. In its report of 8 September 2006, the Office of the UN High Commissioner for Human Rights (OHCHR) concluded that (quote) “almost all human rights violations and concerns with regard to the people of Western Sahara stem from the non-implementation of th[e] fundamental right [of self-determination]”, recommending that “as has been stated in various UN fora, the right to self-determination for the people of Western Sahara must be ensured and implemented without further delay” (end of quotation). Now, after showing lack of good will in the four rounds of direct negotiations held between the two parties over the last two years in line with Security Council resolution 1754 (2007), Morocco still insists on presenting its unilateral proposal of autonomy as the only “realist” way to resolve the conflict. By excluding independence as a possible solution to the conflict, the aim of this new Moroccan tactic is only to gain the renunciation by the international community of the inalienable right of the people of Western Sahara to self-determination and independence. Besides, this approach ignores fundamental realities on the ground. Over thirty years of institution and nation-building that have made the Sahrawi nation an irreversible reality. In addition, the Sahrawi Republic (SADR) is a fully-fledged State that exercises its full sovereignty over the Sahrawi liberated territories and has the administrative and political capacity to handle its own affairs and conduct its international relations. Indeed, it is the embodiment of the strong collective will of the Sahrawi people and their vehicle to achieve their legitimate national aspirations for self-determination and independence. Driven by sincere will to search for a mutually acceptable political solution that will provide for the right to self-determination of the people of Western Sahara, as called for by the Security Council, the Frente POLISARIO presented its proposal as a serious contribution to finding a peaceful and lasting solution to the conflict. Our proposal not only ensures the right to self-determination but also aims at establishing mutually advantageous relations with our northern neighbour and with all countries of the region. Conclusions In view of the discussion above, the main conclusions are as follows: 1. The legal basis for the right of the Sahrawi people to self-determination lies in the UN doctrine relating to decolonisation and the continuing status of Western Sahara as a Non-Self-Governing Territory. This means that the Sahrawi people have an inalienable right to self-determination and independence to be exercised in a free, fair and democratic manner in line with the UN resolutions in this regard. The exercise of this right constitutes therefore the only legal and political basis for achieving a just, viable and lasting solution to the conflict in Western Sahara. 2. By occupying and annexing Western Sahara in 1975, Morocco has denied the right of the Sahrawi people to self-determination and violated a fundamental norm of international law. The United Nations should assume its responsibilities to redress this injustice and ensure a speedy completion of the decolonisation process in Western Sahara. 3. For the sake of a lasting peace in the region, the United Nations in general and the Security Council in particular should therefore deploy all necessary efforts to ensure the respect for and implementation of the inalienable right of the people of Western Sahara to self-determination and independence. What is at stake is not only an inalienable right and a fundamental norm of international law but also the credibility of the United Nations as well as the security and stability of the entire Maghreb and North Africa.

Geopolitics and Realpolitik as impediments to the Saharawi’s Right to Self-determination

Speech by Adv Z. L. Madasa from the Parliamentary Portfolio Committee on Foreign Affairs on occasion of the Conference on Multilateralism and International Law with Western Sahara as a Case Study, held in Pretoria, South Africa, 4 and 5 December 2008. ---------------------- ‘Geopolitics and Realpolitik as impediments to the Saharawi’s Right to Self-determination’ Chairperson, Excellencies of the Diplomatic Corps, Distinguished Participants Colleagues, The story of the Western Sahara is an epic tale of Africa’s last remaining colony that has confounded and divided the international community. With no bombs and an appalling lack of diplomatic action, the story, though rich in tragedy, lacks the immediate drama required to propel it to the front pages. The world is familiar with the suffering of the Palestinians living in refugee camps for over 50 years but less familiar with the plight of another Arab people also languishing forgotten in refugee camps behind a sand wall. In the more than three decades since the declaration of the Saharawi Arab Democratic Republic (SADR) the cause of the Saharawi people has dwindled into all but a non-issue as far as most of the international community is concerned. In a world where the probability of outcomes is often predicted with some certainty, no one, neither expert nor diplomat, would have anticipated that after more than three decades Saharawi refugees would still be in their tented towns in the Algerian desert separated from their kin living under occupation without freedom and dignity. The story of the people of Western Sahara has been tainted by the stigma of realpolitik for some time. The geopolitical backdrop that spans the more than thirty years of the Saharawi struggle saw the shifting international context of the region from the realpolitik of the ‘Cold War’ to the realpolitik of the ‘War on Terrorism’. The Western Saharan narrative is essentially about the evolving relationship of Morocco and Algeria to the United States, France and Spain and through it to the African continent and the world. Day by day Saharawis are confronted with decisions based on considerations of power rather than ideals, morals, justice or principles. And still the Saharawi liberation struggle simmers on and each phase is accompanied by its own diplomatic furore as political practitioners ply their trade and direct the course of a people. The story of Western Sahara is littered with the words of so many discarded resolutions. While the International Community continues to adopt carefully crafted resolutions at the United Nations in the interest of balance and compromise, the Saharawi refugees in their desert refugee camps endure yet another day in collective anticipation waiting for the promised day that they can go back home. If you talk to experts and diplomats covering Western Sahara, almost all will admit that legal right is on the Saharawis’ side. Even the former United Nations Secretary General’s Special Envoy on Western Sahara recently told the Security Council that the law clearly favours the Saharawis. At the same time he also morally indicted the so-called power players as being in Morocco’s camp. More and more Saharawis are faced with “realities of power” based on hard, practical and even sometimes coercive and amoral considerations. Saharawis are coerced to face the world as it is, rather than how it ought to be. Should this be the ultimate and depressing lesson of the Western Sahara? Should we agree that the world is being run by the dismal calculus of "interests" and realpolitik? Should the only constants in the shifting political sands be the all but forgotten plight of thousands of people patiently awaiting their promised right to decide their own fate? Can there be a compromise between international legality and political reality? Is international law simply a tool in the diplomatic kitbag that can be utilised to justify politically motivated actions? The outcome of the Western Sahara dispute is clearly of great importance to thousands of indigenous Saharawis and their kin but should their fate only concern the international community inasmuch as the interests of the major powers are affected? Does might make right? Political reality is subjective. Therefore a rules based international order through multilateralism and the rule of law remains the essential prerequisite for the resolution of conflict between nations. We all waited, some of us glass in hand, for the clock to strike midnight on New Year’s Eve 1999. What did we anticipate? Some welcomed the new millennium with the sense of confidence that the spectre of nuclear obliteration had been averted with the end of a bi-polar world divided into an East and a West. Others felt the trepidations of a dominant world order centred on the nations of the West. The seismic power shift as the last millennium drew to a close was in the eyes of the victors the beginning of a new age where the rivalry over politics, economics and culture was finally settled - history was concluded decisively and finally. The nations of the West had won and the United States of America was the defining power of the triumphant West. Now imagine that that at the same party as you toast in the new millennium you had a chance meeting with a African traditional fortune teller that claimed to be able to divine the future by throwing the bones that would tell what the future would bring. The incantations are pronounced and the bones are spilled and they foresee the collapse of the Twin Towers and attack of the Pentagon, they show two wars that cannot be won and North Korea exploding a nuclear bomb. You hear of oil prices that reach $147 a barrel and fall back to less than $50 a barrel, a war in Lebanon that goes badly for the Israelis. Will you expect that that Gaza will be won by Hamas and banks and major industries will be nationalised in capitalist strongholds? Or that in the not too distant future a black man will be elected to the highest office in America? The world is not static and history does not end! Where to from here? The question remains as the fate of Saharawis is being determined by regional and global forces that follow the dictates of particular interests and which unfortunately do not always hold the Saharawi people, or the merits of their cause, central to a solution. The legal, moral and political responsibility of the UN is clear. The mandate of the UN and its mission is to help achieve the decolonisation process of the last colony in Africa. The UN mandate is not to reward the aggressor that violates international legality and refuses to abide by UN resolutions. To attempt to do so is to betray not only the Saharawi people but also the international community at large. It is indeed an affront to ask the Saharawi people who have suffered immensely from Morocco’s occupation of their homeland and been denied their basic human rights, to accept an imposed ‘political reality’ and negotiate a compromise on international legality. The UN cannot wash its hands of the Western Sahara conflict and abandon its responsibility – if it does, the UN’s credibility will suffer and its integrity will be buried in the Saharan sands. One can but imagine the blow to the collective patience of a people waiting to go home for more than thirty years sustained by the belief that one day their homecoming will happen because the world cares enough to ensure that they can exercise their legal right in an act of self-determination through a vote. For those of us that want to believe that the world is fundamentally just, that wrongs are eventually righted, and that in our policies dealing with other countries and people we are inherently fair and righteous, the endless denial of justice of the Saharawi people should shame us. For here is a people with right wholly on their side, international law emphatically in support of their cause, an agenda item of the U.N. Security Council for decades, that are still ignored. There is also something frightening about the possible reaction of a people that has invested so much trust in the legal prescripts of a process even though that trust has been betrayed so many times before. The reality is that the Saharawis are waiting and the threat of violent regional conflagration if their waiting ends in the appropriation of the Western Sahara by Morocco outside of any legal process should not be downplayed. There is indeed a line in the sand that the Saharawis cannot cross unless they accept being Moroccans. The international community and South Africa can never be silent if accepted international law principles are flagrantly breached. Former President Nelson Mandela said “There is no such thing as part freedom.” And Africa cannot be free until Western Sahara is free. Denying the Saharawi people the right to self-determination is an injustice that will forever haunt world conscience. Issued by the Department of Foreign Private Bag X 152 Pretoria, 0002 08 December 2008

Desert patrols - Some lives in the fight for self-determination

“Welcome to the Bad Boys House” is marked on the sand berm with white rocks and goats’ skulls. Behind it sits a squat complex of tents and Portacabins. Tracks in the sand mark the roads to nowhere, tracks petering out into the desert. A brief stop, then back in the helicopter, a battered Russian MI-8 with UN in large black letters on the side. Below, the Sahara is turned, briefly, into a flood plain, as the first rains of the season arrive. We land in front of Conor Burke’s home, a very similar camp although without the rock’n’roll motto.

This is Tifariti Team Site, one of nine peacekeepers’ bases in Western Sahara, and Lt Col Conor Burke, born in Kildare and based at Collins Barracks, Cork, is in charge. He has 12 men under him, from 12 different countries. “We look out for each other,” he says. “The bottom line is respecting others.” He has been here four months of a six-month posting. “Time flies for me here. I’m busy. There are patrols to be preparing for, reports to do, cleaning, meeting people, whatever. At 18.30, we play volleyball for an hour, and that passes the evening.”

A few hundred metres across the desert is the village of Tifariti, bombed out during the war and hesitantly being rebuilt. There are no roads, no signs, no traffic, no people. In a tiny, dark shop, a wizened Saharawi man in military fatigues and a traditional headdress awaits rare customers. There are tents scattered in the bush around. “You adapt,” says Burke. “In Kildare, it’s very flat and level, and you can travel for miles without seeing a tree. That helped me quite a lot.”

This is a classical UN peacekeeping mission; 230 Blue Berets, three of them Irish, patrol the desert, visit military installations on both sides, and report violations of the peace accord. These tend to be minor: the situation is “calm and stable”, says Burke, and the peacekeepers are unarmed. For Julian Harston, the veteran British ex-diplomat who runs the UN mission here, the peacekeeping “has been a great success. There’s not been one shot fired in anger between the sides since the ceasefire was put in place.”

That was 17 years ago. The UN came in to help organise a referendum on self-determination. It never happened. Currently, the two sides are talking about having talks about it. In the meantime, a second generation of Saharawis has been born in the refugee camps, or is being radicalised by human rights abuses, and political impotence, in the Moroccan-controlled territory.

These are none of Harston’s business. “I don’t have either a mandate or the means to monitor human rights.” His mandate comes from the Security Council, where permanent member France, the former colonial power in Morocco and now a key ally, fights to keep human rights off the Western Saharan agenda. This is the nature of international realpolitik, and Harston argues that the UN machine should not be blamed. “I don’t think the United Nations has failed Western Sahara. We’ve done precisely and exactly what we were asked to do by the Security Council. We’ve maintained a ceasefire here and we have continued to create a space for the parties to negotiate a settlement.”

Meanwhile, Conor Burke and his men drive their regular routes through the desert, stopping to talk to the occasional nomad, keeping friendly contact with their military counterparts, watching, recording, reporting.

Permanent resistance in Western Sahara - Some lives in the fight for self-determination

Morocco won control of half of the former Spanish Sahara 33 years ago, and later annexed the rest. Several generations of Saharawis have continued a struggle to be independent, and free of the Moroccan colonial powers. It has cost them everything, but they are not prepared to give up or give in.

Hassan was walking through town one afternoon, killing time, when he bumped into a friend near the football stadium, who said “I’ve got some spray paint.” They agreed to meet later that night, by the bakery.

They met at 12, and walked a short way into a residential quarter. At one end of a long, narrow street, they started spraying in black and red paint. “Down with colonial occupation” and “Viva Polisario”, they wrote, in letters 70cm high. They worked quickly but carefully; they wanted their work to be legible, not artistic. They covered 100 metres of the street with slogans, and by ten past twelve they had finished. On a high, they celebrated with a coffee in the nearby Café Alaska.

That was in May 2007. In October Hassan found himself in a cell in the police station, naked, watching another man being raped with a bottle, by police. He was told that if he didn’t confess, the same would be done to him. He confessed to a crime he says he knew nothing about, the torching of a police car. Later, when he was presented to the chief of police, he refused to repeat his confession, and was taken back to the cells. This time, he was given the faroj or “roast chicken” (a form of torture well-known in the region, he says). He was put in a foetal position with his feet bound and his arms bound around his legs. Then a pole was pushed through behind his knees, and lifted so that he swung from it, upside down, like a chicken on a spit. For three days he was tortured, beaten and insulted, though his interrogators took care not to scar him. He was shown photos of the graffiti and made to write out the same slogans on paper, so that his writing could be compared.

Brought to trial, he entered the courtroom making the victory sign and shouting “No place for colonial justice!” He threatened to go on hunger strike. The judge replied: “You can suffocate yourself if you want; it won’t do you any good.” He was found guilty on the charge of torching the police car and sentenced to 10 months, which he completed in August.

“I’m sure, after your departure, I’ll be arrested again,” he says, and smiles. There is a twinkle in his eye.

‘I want to struggle from here’

Hassan Eddah, 22, is a Saharawi, from the country once known as Spanish Sahara, now known as Western Sahara to those who recognise it; to the rest, it is the southern province of Morocco. It is a vast stretch of desert, with a few towns, a rich seam of phosphate, some of the richest fishing waters in the world and, possibly, off-shore oil. The Saharawis are the native nomadic tribes of Arab and Berber origin; though they are nomads no longer, for they have nowhere to go.

There are perhaps 400,000 (no one has properly counted). Some live in Laayoune, the small, squat, modern city that is the Western Saharan capital, and a few other towns in Moroccan-controlled territory. Many, though, are stuck in refugee camps across the border in Algeria, where the leadership of the Saharawi liberation movement, Polisario, is based. Hassan has four older brothers in the camps; the youngest left to join Polisario in 1995, and Hassan has not seen any of them since. I ask if he will join them. “I want to struggle from here,” he says. “I don’t want to leave this land to the colonists.”

His struggle is a simple one. He is not a revolutionary; his weapons are spray paint and the Polisario flag. “I’m just a simple militant,” he says. “I call for self-determination.”

What are his personal hopes for the future? As a young man, what are his ambitions? “The only thing I see is our flag on this land.”

Al-Aqsa and phosphates

This land is Africa’s last colony. Just south of Morocco, on Africa’s north west coast, it was a colony of Spain until 1975, when domestic difficulties and international pressure forced Spain to withdraw. Independence seemed likely for the Saharawis, supported by a decision of the United Nations International Court of Justice, which ruled they had the right to self-determination.

Instead, Morocco invaded – an unprecedented invasion. Morocco’s King Hassan II called on his people to mobilise, and 350,000 civilians marched south to claim the Sahara as theirs. There are photos of this march all along the corridors of our hotel in Laayoune: glorious images of a massive popular movement; a vast parade of poor rural people, swathed in desert robes, carrying the red flag of Morocco, marching, camping, riding in packed trucks. This was the Green March, so called because it was carried out in the name of Islam (though the Saharawis, too, are Muslim). Its significance is captured in a popular painting in the lobby of our hotel. At the centre is the king: commanding and handsome in a European suit, he points towards the mass of marchers, bearing red flags. In one corner, an icon of the al-Aqsa Mosque symbolises Islam; and in the opposite is an image of the phosphate factory.

The Green March has become the defining expression of Moroccan sovereignty. It was mostly a public relations exercise. The marchers barely entered Western Sahara, came nowhere near any of the towns, camped for three days, and went home. They walked into empty desert, and returned. Yet Spain bowed to Moroccan pressure, and signed an agreement with Morocco and with Mauritania (the country to the south), dividing Western Sahara between them. Both countries sent their armies in. Perhaps 100,000 Saharawis fled east, into Algeria, and their liberation movement, the Polisario Front, declared a government in exile.

Mauritania eventually withdrew, but Morocco cemented its control over the Sahara by building a wall, a 1,600km long berm of sand, securing the territory against Polisario incursions; 100,000 Moroccan soldiers are stationed along the berm today.

The Saharawis that remained in the Moroccan-controlled territory were herded off the land, into the towns. There was severe political repression, and hundreds disappeared, arrested and detained in secret prisons. In the most extreme cases, people say, the Moroccan army threw people from helicopters or buried them alive, as was done at that time by state security services in Latin America. The families of the disappeared were told nothing about where and how they were.

‘They treated us like animals’

Aminatou Haidar was 20 when she was arrested, in 1987. She had been involved in planning a demonstration to call for self-determination and human rights. At half past three in the morning, the police took her from her parents’ home. She was interrogated and tortured for three weeks, she says. She was beaten, bound, placed in stress positions and given electric shocks. When she lost consciousness, they woke her with cold water. Then, she was transferred to another prison, where she spent the next three and a half years in a cell three metres square, with nine other women. They were blindfolded constantly and not allowed to talk. “We were totally isolated from the outside world. Our families assumed we were dead. There was no legal process at all. They treated us like animals, in cages.” But the women gave her strength. Some of them had children, and their fortitude impressed her. She was young, and 
she had expected to be arrested. “My uncle and 
my cousin had been disappeared. So I was psychologically prepared. But the second time was harder.”

A ceasefire between Morocco and Polisario in 1991 led to the release of disappeared, and Aminatou Haidar returned to her family and her studies. She also returned to her activism, becoming a leading member of the Collective of Saharawi Human Rights Defenders (Codesa). In 2005 she was arrested again. This time, she was put through what she says was a sham legal process, charged with forming a criminal gang, convicted and imprisoned. “I had children by then. I was always worrying about them: are they eating, are they sleeping, are they well? Even though I spent just seven months detained, and despite the fact that I had visits from my family, it was harder.”

Conditions were so bad that she and her fellow political prisoners went on hunger strike, demanding better treatment. Some of her colleagues were not allowed family visits, and Aminatou Haidar decided to forsake her own family visits in sympathy. “My children pleaded with me to stop. But we had taken a collective decision, and I couldn’t.” The strike lasted 51 days. They won some of their demands, and Aminatou Haidar was released after seven months.

She tells me this story in the early hours, in the Laayoune house of a colleague in Codesa. There is no secrecy about the meeting, everybody knows they are being followed. But because it is Ramadan, the Muslim fast, people prefer to meet late and talk into the night. As we talk, a colleague laboriously prepares a very sweet green tea, which simmers on a charcoal burner sitting on the carpet, and is then poured into small glasses, emptied back into the pot and poured again, over and over until it acquires a small froth. “We are orthodox,” he jokes. “You have to respect the rules.” Till 3 am, Aminatou Haidar and her colleagues tell us their stories, and of their concerns for human rights in the region. Though Saharawi self-determination is their goal, they talk much of organising civil society in Western Sahara, and of alliances with human rights organisations in Morocco, to push for democracy and greater freedom of expression and organisation. And then they go home to eat with their families, before the fast begins at sunrise.

The next morning, Aminatou Haidar takes us for a drive. The white Peugeot 205 that always follows us is behind, as usual, but when she stops to show us the prison wher e she was held upon her arrest in 2005 (now disused), we acquire a second escort, a police car. Two men squat on a corner across the street, watching. Haidar points them out, smiling. She walks down the street for a photograph, and a third escort arrives: a police van appears on a parallel road and, very slowly, turns on to our road and crawls past us.

If there has been one beneficial consequence of her imprisonment, it is that she has become a figurehead for the Western Saharan human rights movement. In November she will fly to Washington to receive the prestigious Robert F Kennedy Human Rights Award. And she, along with other human rights defenders here, is supported by Front Line, the Irish-based charity that works to protect such defenders internationally. This status gives her a certain level of protection, and a confidence that the authorities will be careful not to overstep the mark. Even so she is routinely harassed. When she drove with her family to the Moroccan seaside resort of Agadir for holidays last summer, they were stopped at checkpoints 13 times.

Story time

We sit on cushions on the carpeted floor of a living room, and an elderly woman describes being abducted, when she was 24, leaving her five-month old daughter behind. Her daughter died. The woman was imprisoned for – was it 16 years? A young man of 18 shows the swelling on his thigh where, he says, he was beaten by the police yesterday, for being a Saharawi nationalist. We leave our hotel, and the white Peugeot 205 is parked further up the road. Someone describes harassment and beatings and torture. In the kitchen the women prepare the meal to break the fast. We eat dates and drink fresh orange juice, and laugh about something inconsequential. We eat soup and unleavened bread, and swap mobile phone photos of our children. A young man plays some Saharawi music on his mobile phone, a tinny, repetitive chant: he could be arrested and beaten if a policeman heard it on the street. Another young man describes the “roast chicken”. A woman describes sharing a cell with eight others for five years, without exercise or washing facilities. The only time they could talk was when the guard on their cell door took a break because the smell from the cell was so nauseating. They tell us these stories, carefully and politely, and then invite us to eat with them. We sit cross-legged on the floor, eat with our hands, or go for cigarette breaks on the roof, and the conversation turns to laughter.

‘This is our land’

We drive east through the desert. There are two checkpoints on the road out of Laayoune. Polite, but slow; we are forced to wait at the side of the road. At one, the officer knows our translator’s name, even though they have never met. We drive for two hours across flat, dusty, grey-brown scrub. A water truck sucks rainwater from a large puddle, to sell it in the town. Some goats stretch to nibble at bushes and acacia trees. Camels loll across the road. More checkpoints, more questions. The entrance to Smara, a tiny town half way to the Moroccan berm, home to a UN camp (“no pain, no gain” says a sign in the compound); a small, squalid shanty town; a dilapidated main street with an internet café and tired shops; and a straggling suburb of half-built houses. (The fashion here is to build one storey at a time, and move into the completed section while saving to build higher.)

There is a meeting of the Saharawi Committee for Human Rights, in Smara. A long introduction. A detailed story of a disappearance. Photos of young men beaten last week, and the men showing what remains of their scars and bruises. An elaborate lunch, prepared for us (it is daytime, so they will not break fast). I ask Lakhtour Nafaa, 18, who has told me how he was arrested, beaten and threatened with a bottle rape, if he will see independence in his lifetime.

“Only God knows,” he says. Would he like to join Polisario? “No. I will stay here till independence.” Why? “Because this is our land.”

One evening, the photographer thinks that his laptop has been opened while we were out during the day. We assume our rooms are being searched. Our security companions are present whenever we step outside the hotel. On our final morning, one of the team notices some fresh biro’ed graffiti on his bag. “Accomplish unfortunately,” it says, an awkward translation from the French: accompli, malheureusement. In the lobby, we speculate on its meaning: a warning, a sign of frustration, a wry acknowledgement? Hassan II looks on from the painting. His son, King Mohamed VI, looks down from a framed portrait. Outside, our security tail is waiting. Whose land is it? What has been accomplished? The Saharawi people wait for answers.