Issue 4, Spring 2016

Western Sahara Review

Revista del Sahara Occidental

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Western Sahara Review promotes the right of the

Sahrawis to

self-determination.

t is independent. Its objective is to provide a forum for analysis, debate and information about the Sahrawi struggle. Contributions will include topics in the spheres of political strategy and diplomacy, history, law, economics, and

culture. Articles published in the review are the views of their authors, who may prefer to remain anonymous to readers but must identify themselves to the editors. They may be written in English, Spanish or French. Once accepted for publication, they will only be edited for style and clarification. The review will be published on an occasional basis. The intention is that the review's content is original and does not repeat well known positions. It is not an academic publication – although contributions from academics are welcomed – but rather an attempt to provide readers with opinions and information with which to advance the cause of self-determination, a cause that is currently at an impasse. So, articles should be written in a style that is accessible to readers who are not expert in particular disciplines. Proposals for articles for future editions of the review are welcomed, particularly from Sahrawis living under occupation, in the camps, or in exile elsewhere. Copyright for the articles and photographs used remains with the originators. The review is published online free of charge to make it accessible to as many people as possible. In return, readers are asked to publicise its existence to others to ensure that it is widely read and its articles widely discussed. The contact address for the review is: saharareview@gmail.com

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It is two years since the last edition of WSR was published — too long an absence even for an occasional publication. In that period, the Sahrawis have won some important tactical victories, particularly on the legal front, and two of these are discussed in articles in this issue. These victories are valuable and should be both celebrated and built upon. But, as another contribution argues, the indifference or hostility of key international players means the diplomatic cards remain firmly stacked against Sahrawi self-determination. Meanwhile, the occupying power broadens its attack on the Sahrawi identity in the cultural sphere, and this is discussed in an article below. As this edition was published, the UN Security Council again renewed Minurso’s mandate. The secretary-general’s report bemoaned lack of progress in nine years of negotiations, impediments to Minurso’s very circumscribed operations in the occupied territory, conditions in the camps. Words of frustration from a man unable to force the hand of international powers. There is no prospect of a breakthrough at the UN. Indeed, the US presidential election may well worsen things. But the Sahrawis’ nation-building has never been done in the corridors of power. It has been achieved through successive popular mobilisations behind new strategies. Has the time come for a new strategy?

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How National Interests Trump International

Legality

Western Powers and the Decolonization of Western Sahara

By Yahia H. Zoubir & Souadou Lagdaf

orty-one years after its

inception, the conflict over

Western Sahara that has pitted

the Sahrawi people’s nationalist

aspirations against Morocco’s

irredentist claims has yet to be

resolved. This conflict is a major

source of tensions between Rabat and

Algiers, which has undermined

regional cooperation and integration

efforts. Regardless of numerous UN

resolutions calling for a free and fair

referendum on self-determination for

the Sahrawi people, the conflict has

remained frozen.

While some Western pundits argue that

the reasons for the stalemate are a

problem of identification of Sahrawi

voters or other alleged technical issues

impeding the holding of the

referendum, we argue in this paper that

the influence of external actors is the

major obstacle that has prevented a

definitive resolution of this protracted

conflict. The three primary players

outside of North Africa are Spain,

France and the US, which each has

privileged relations with Morocco that

include political, economic, and

security interests.

This brief article details the interests of

these foreign powers and how their

policies trump international legality,

prolonging the conflict in Western

Sahara, while subtly supporting

Morocco’s irredentist claims to the

detriment of the Sahrawis’ legitimate

rights. Western support for Morocco’s

autonomy plan is no more than a well-

concocted subterfuge to legitimize

Morocco’s annexation of the former

Spanish colony.

Geopolitics as impediment to resolution

In spite of their public discourse on

human rights, international law, and

democracy, the policies of the powers

external to the Maghreb region do not

abide by these principles when it

comes to Western Sahara for reasons

that trump any consideration for

international legality, let alone justice.

The resolution of the conflict lies in

Washington and Paris and not at the

UN in New York. Having failed or

rather been unwilling to allow the

holding of a referendum on self-

determination as inscribed in UN

resolutions, they have favored the

option of autonomy that would permit

Morocco to incorporate the territory it

has illegally occupied since 1975. In

order to understand the non-resolution

of this conflict since the 1970s and the

stalemate that has prevailed since the

mid-1990s, it is necessary to analyze

the respective roles of foreign actors in

this conflict and to understand the

positions and interests of each.

Spain’s swinging policy

As the ex-colonial power, Spain’s

responsibility in failing to decolonize

the territory is indisputable. Madrid’s

policy toward the dispute has been

constricted by its wish to maintain

F

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good rapport with pro-Sahrawi Algeria

and with Morocco. Therefore, Spain

has adopted a bilateral policy of

friendship and cooperation to establish

a balance while seeking to strengthen

political and economic ties with both.

Thus, except during the Spanish-

Moroccan crisis (2001-03) under the

premiership of José Maria Aznar

(1996-2004), Morocco has remained

Spain's privileged interlocutor, while

relations with Algeria remained

relatively good. Spain has avoided

being antagonistic to Morocco owing

to the salience of its strategic interests:

the enclaves of Ceuta and Melilla; the

dependency of the Spanish and Canary

Islands’ fishing fleets in Saharan

waters, which required fishing

agreements with Morocco;

participation in the phosphates mining

company of Bou-Craa in Western

Sahara; the presence of Spaniards

living and working in Morocco;

terrorism; and, clandestine migration.

While Spain has not recognized

Morocco’s and Mauritania’s

sovereignty over the territory — it only

handed Morocco the ‘administration of

the Territory’ under the terms of the

Madrid Accords of November 1975 —

it nonetheless signed fishing

agreements with these two countries so

Spanish vessels could operate along

the coasts of the disputed territory. The

Spanish socialist government of José

Luis Rodríguez Zapatero and his

foreign minister Miguel Angel

Moratinos were the most pro-

Moroccan, going against Spanish civil

society’s unequivocal support to the

Sahrawis. Spain put its relations with

Morocco above its responsibility to

conduct the decolonization of Western

Sahara to its conclusion. Spain no

longer wishes to have conflicting

relations with Morocco as was the case

under José Maria Aznar; Spain truly

fears Morocco’s reaction should it

show too much support for the

Sahrawis. In fact, as revealed in the

Wikileaks cables, Spain favors the

autonomy option and thus offered

Morocco its services to develop the

autonomy plan. Today, Spain is fearful

of threats from Morocco to open the

gates to illegal migrants into Spain, as

it did in August 2014. So, Spain will

continue to take cover behind the

useless UN-sponsored process of

negotiations between Morocco and

Polisario to avoid alienating Morocco,

while proclaiming its public support

for self-determination in order not to

alienate its pro-Sahrawi civil society,

on the one hand, and Algeria, an

important economic partner, on the

other.

France: the grandeur de la France nostalgia

Although the US is the power that

made it possible for Morocco to invade

Western Sahara with impunity and

provided it with the necessary

diplomatic support at the UN during

the Cold War, France is the power that

probably played the most critical role

in allowing Morocco to hold on to the

territory. France’s position has been

consistent and politicians on both the

Right and the Left have made no secret

of their alignment with Morocco,

making it plain that France would use

its veto power at the UN Security

Council, should the UN move to

impose a solution that is not acceptable

to Morocco. France has a position

toward Morocco comparable to the one

the US maintains with Israel; France

serves as Morocco’s surrogate at the

Security Council. In sum, France

would exert all its powers to prevent

the independence of Western Sahara,

which it argues is potentially yet

another ‘failed state’ that today could

constitute a safe haven for international

terrorists. The reality, however, is more

straightforward. First, France refuses to

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have an independent state that would

— allegedly — fall under Algeria’s

influence. Second, it fears a

referendum would destabilize the

kingdom, and bring down the pro-

Western monarchy to which France

has provided substantial economic,

political and military support. In fact,

France sought, partly successfully, to

offset the SADR’s diplomatic gains by

coercing, through financial blackmail,

African countries to withdraw their

recognition. Third, Morocco displays

more compliant behaviour towards

Western interests than Algeria.

There are three additional points that

inform France’s position toward

Western Sahara. The first two are

directly linked to France’s colonial

past in Algeria: France has never

recovered from the ‘loss’ of its

Algerian colony, its biggest colonial

prize. France still aims to undermine

the old nationalist elite that fought and

defeated France and has run the

country since independence in 1962.

The second derives from a sympathy

with Moroccan claims of ‘unfair’

drawing of the borders in favor of

Algeria to the detriment of Morocco.

The Moroccan establishment argues

that France amputated the kingdom

during that era and that France should

today repair that injustice by allowing

Moroccan irredentism and the

‘recovery’ its ‘lost provinces’

regardless of the rejection of those

claims by the International Court of

Justice. The third point is economic in

nature: thousands of French citizens

and enterprises are located in Morocco;

25 percent of tourists who visit the

kingdom annually are French. France

is Morocco’s principal trading partner

and main investor with close to 70

percent of total foreign direct

investments in the kingdom.

The unwavering French position has

— perhaps wittingly — hindered the

prospects for Maghreb integration,

declaratory statements on the necessity

for Maghreb unity notwithstanding.

France has always favored a divide-

and-rule policy in the Maghreb and the

Western Sahara serves as one of its

main instruments.

The US and the primacy of security interests

In principle, Washington supports the

right to self-determination as

guaranteed in the UN Charter, which

requires that Spain hold a referendum.

But, similar to France and Spain,

political, military and economic

interests have determined the de facto

US position: steadfast support for the

Moroccan monarchy, a reliable ally in

the Arab world. The US has since 1975

not only sided with Morocco, but was

also instrumental in Morocco’s

colonization of the territory. The end

of the cold war did not result in any

major shift in policy. Support for

Morocco in the US Congress has

remained significant, not least because

Morocco is one of the few Arab

countries that are friendly to Israel.

The Global War on Terror (GWOT)

since the attacks of September 11,

2001, has also strengthened Morocco’s

standing in US policy despite the

remarkable improvement in US-

Algerian ties. While this latter

development has compelled

Washington to pursue a relatively more

cautious policy toward the conflict, its

attachment to Morocco remains

unwavering. In the area of economics,

Morocco and the US established a Free

Trade Area in 2004 that entered into

effect in January 2006, while Morocco

rose to major non-NATO ally of the

US. Unsurprisingly, the consequence

of such relations is that the US publicly

seeks a political solution that is

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‘acceptable’ to all parties but pursues

one that is favorable to Morocco.

Because of the established close

friendship with Morocco, coupled with

the ongoing need to keep Morocco in

the antiterrorist coalition, the US

alleviates Morocco’s fears by

constantly using language that does not

compel the Palace to comply with UN

resolutions. When Morocco proposed

the autonomy plan in April 2007,

which Washington helped to craft, the

US gave it full support, describing it as

“a serious and credible proposal to

provide real autonomy for the Western

Sahara.” The US also encouraged

direct negotiations between the two

protagonists without preconditions,

while downplaying Polisario’s

counterproposal, which was much

closer to international legality.

Empowered by such support, Morocco,

in the several ‘negotiations’, has

refused to discuss any other option

than its unspecific autonomy proposal.

In 2008, the US made it plain that it

opposes an independent state and that

“some form of autonomy under

Moroccan sovereignty is the only

realistic way forward to resolve this

longstanding conflict”. This position

has remained unchanged under the

presidency of Barack Obama, whose

priorities lie in Iraq, Syria, Ukraine,

and the war against the Islamic State

(IS). Secretary of State Hillary Clinton,

current presidential candidate, has

adopted a position that is irrefutably

favorable to Morocco. Hopes that the

Obama administration would uphold

international legality were dashed

when Clinton reiterated in late

November 2009 that there was “no

change in the Obama administration’s

position as far as the Moroccan

autonomy plan in the Sahara is

concerned”. US-Moroccan relations

are so strong that the US backed away

from an initial willingness in 2013 to

include the protection of human rights

in UN ceasefire monitor Minurso’s

mandate. This was likely due more to

the weight that Spain and France had

thrown against the proposal than to

Morocco’s posturing threats to reduce

its security cooperation with the US.

Regardless, the swift reversion to a

position favorable to Rabat is a

measure of the importance that foreign

powers actually accord to their

proclaimed support for human rights,

international legality and democracy.

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Spain’s Audencia Nacional Decisions — their import for justice in Western Sahara

Jeffrey J. Smith, Faculty of Law,

McGill University

ecent months have brought an

unexpected and useful

extension of law to the

“question” (as the UN phrases it) of

Western Sahara. These legal

developments have coincided with

Sahrawi people marking four decades

of occupation and struggle for self-

determination. The people of Africa’s

last colony have proven remarkably

resilient in the face of the failure of the

law in their pursuit of a place among

nations. It is this which has been the

common thread of legal developments

that have the potential to move the

Sahrawi people closer to self-

determination.

These recent legal developments have

their origins in the decision of

Sahrawis and their governing entities,

the Saharawi Arab Democratic

Republic (the SADR) and the Frente

Polisario, to seek for themselves the

benefit of the law and especially

remedies from its international

dimensions. The three principal

developments have been: (i) two

decisions of Spain’s appeals court the

Audencia Nacional allowing criminal

investigations by Spanish authorities in

present-day Western Sahara; (ii) an

October 2015 legal opinion of the

African Union that made clear (and

resolute) that organization’s

understanding of the status of the

Sahrawi people and expressed a

renewed framework for them to realise

self-determination; and (iii) the

December 2015 decision of the Court

of Justice of the European Union that,

on application of Polisario, struck

down a 2012 decision of the European

Council to extend free trade with

Morocco into Western Sahara. (A

fourth development must be noted, one

sometimes overlooked but important

all the same: the treaty accession of

Polisario to the 1949 Geneva

Conventions. In mid-2015, the Swiss

Federal Council accepted the step,

thereby putting the Sahrawi national

liberation movement on an equal

footing of access to international

humanitarian law as state members of

the Conventions.) These developments

are equally important, but it is their

combination that is consequential.

Forty years after the last significant

legal event for the Saharawi people,

the rule of international law for them

has been affirmed. That previous

event was, of course, the October 1975

advisory opinion of the International

Court of Justice (the ICJ) for the UN

General Assembly, clarifying the legal

circumstances for the Assembly to

fulfill its decolonization responsibility

for the people of the then Spanish

Sahara. The advisory opinion should

have been, if international law was to

be regarded by the UN and states

concerned with Western Sahara, the

last word. After exhaustive evidence,

the ICJ concluded that no state had a

claim to the territory of Western

Sahara and that the Sahrawi people

were entitled to exercise their right of

self-determination.

Recalling the 1975 opinion connects

history to the two decisions of the

Audencia Nacional four decades later

that are the subject of this article. For

directly as the ICJ gave its opinion and

Western Sahara was invaded by its

neighbouring states to the north and

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south (themselves only decolonised in

recent decades), Spain abandoned its

colony. It did so through the façade of

an apparent continuing responsibility

under the November 1975 Madrid

Accords treaty with Mauritania and

Morocco. But its de facto and domestic

legal withdrawal was meant to be

permanent. The same month, the

national parliament, the Cortes,

approved Ley No. 40/1975 — The

Decolonisation of the Sahara — which

was to have made for a definitive end

to colonial responsibility for the

territory together with any support for

the Sahrawi people in their self-

determination. (A post-Franco Spain

was content to remain involved in

Western Sahara through fisheries

agreements with Morocco into the late

1980s and by sharing ownership of the

phosphate mining enterprise in the

territory until 2002). Quite apart from

extending Spanish criminal law into

Western Sahara — and through it

international criminal law — the

Audencia Nacional decisions reverse

Spain’s declared legal position with the

Sahrawi people. (The two decisions are

Audiencia Nacional Auto no. 40/2014

(July 4, 2014), and Sumario 1/2015 (9

April 2015.)

The road to law

Recalling the long, hard path of the

people of East Timor people to their

self-determination, a single event

helped to allow Spain’s domestic

criminal law system to be turned to

successfully in the first of the two

Audencia Nacional decisions. In East

Timor (now Timor-Leste) that seminal

event was the 1991 Santa Cruz

massacre in the capital of the

Indonesian occupied territory, Dili. It

brought into focus the cruel barbarity

of an annexation project that had

persisted since December 1975. For

Western Sahara, the comparable event

was the November 2010 violent

denouement at the hands of occupying

Moroccan authorities of the Sahara

protest camp at Gdeim Izeik outside El

Aauin. While nowhere near the scale

of killing at Santa Cruz, the death of

one particular Sahrawi resulted in a

complaint of murder brought before

Spain’s criminal justice system. The

contention was that, as with other

complaints for serious crimes in

Western Sahara after 1975, that

Spanish courts had jurisdiction that

reached into the territory. International

law more or less uncontroversially

supports such a result: Originally

colonising countries cannot transfer

away or diminish their responsibilities

for non-self-governing peoples such as

the Sahrawi. Indeed, while Spain was

legislating away its duties in

November 1975, it was at the same

time (through the Madrid Accords)

committing to join with Mauritania and

Morocco to administer an eventual

process or act of self-determination.

(This commitment, too, is a dead letter.

The present agreement for Sahrawi

self-determination, dating from UN

negotiations and Security Council

resolutions that became effective in

September 1991, is one between

Polisario, Morocco and the UN. It is

the UN that has the obligation to

administer the process of self-

determination, one generally accepted

as culminating in a referendum of the

Sahrawi people to choose between

incorporation or an associated status

with Morocco (and — in theory —

Spain, or independence.)

As 2011 wore on and a Spanish

magistrate pursued investigation of the

Gdeim Izek case, it became clear there

would be no response from Moroccan

authorities to requests through formal

diplomatic channels to provide

information. The case was referred to

the Audencia Nacional for clarification

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as to whether it could proceed with

such a procedural shortcoming. On

July 4, 2014, a panel of the court

declared that the magistrate did have

continuing jurisdiction and that he was

to exercise it. The judgment was

straightforward and its operative part

brief. The reasoning was that, because

Spain had responsibility for the

decolonisation of the Sahrawi people

as a matter of Article 73 of the UN

Charter, Spanish jurisdiction extended

to and had run without interruption in

Western Sahara since 1975. It is worth

recalling Article 73 here, both as the

original basis for the collective project

of states to end colonialism and for the

heavy legal burden it places on the

countries involved:

Members of the United Nations

which have or assume

responsibilities for the

administration of territories

whose peoples have not yet

attained a full measure of self-

government recognise the

principle that the interests of

the inhabitants of these

territories are paramount, and

accept as a sacred trust the

obligation to promote to the

utmost, within the system of

international peace and

security established by the

present Charter, the well-being

of the inhabitants of these

territories …

Unsurprisingly, Article 73 is discussed

in the 2015 AU legal opinion and

CJEU judgment, as well as being

perennially mentioned in annual

reports of the UN Secretary-General to

the UN Security Council concerning

the “question” of Western Sahara,

together with UN General Assembly

resolutions reminding the international

community of the imperative to

decolonise Western Sahara. (A casual

observer could be forgiven for

concluding that the 1975 ICJ advisory

opinion, coupled with Article 73 and

the constantly restated demand of the

international community in the form of

UN resolutions presents all the law that

is needed in the case of Western

Sahara. Perhaps it does. But

international law’s basic obligations

are ones without effective compliance

mechanisms.)

Settling into criminality

Only months later, the Audencia

Nacional’s second decision advanced

the markers of the law again. It did so

in three ways. First, it built in detail on

the 2014 judgment, although without

direct reference to it. Second, the

judgment contained longer discussion

of the nature of Spain’s criminal law

jurisdiction in Western Sahara and how

it had continued uninterrupted since

1975. Third, and most importantly, it

confirmed that international criminal

law, being part of Spanish law, was a

source of law reaching into the

territory. Spain was, of course, an

early and enthusiastic supporter of the

creation of the International Criminal

Court in 2002 under the 1998 Rome

Statute treaty. The treaty obligates

Spain to first take jurisdiction over

international crimes committed by its

citizens or where they take place where

it has territorial jurisdiction. The 2015

judgment leaves no doubt that Spanish

courts must not hesitate, where the

case warrants it, to apply international

criminal law in Western Sahara.

Momentously, this extends to all

persons alleged to have committed

crimes there, whatever their

nationality. It also means that

individual persons outside of Western

Sahara knowingly helping — “aiding

and abetting” — such crimes face

criminal liability. The implications

here for the taking of Western Sahara’s

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natural resources under occupation and

the export trade in them — the war

crime of pillage — are obvious.

The most remarkable part of the 2015

Audencia Nacional judgment was its

subject. This was not a case of a crime

alleged to recently have been

perpetrated under occupation. The

judgment is the legal foundation for an

ongoing investigation into acts

considered to collectively amount to

genocide from the start of Western

Sahara’s occupation in 1975. Named

were 12 Moroccan individuals said to

have a directing responsibility for

serious crimes intended not only to

remove the Sahrawi from Western

Sahara (recalling that half the Sahrawi

population fled from an armed advance

and into the refugee camps in

Tindouf), but to eliminate them as a

distinct people. In the language of the

Rome Statute, a person must have an

intention “as such” to eradicate a

people or distinct population. The

charge is never an easy one to prove,

and the tragic cases from Rwanda and

Yugoslavia in the 1990s bear witness

to this most difficult of international

crimes to pursue. For Western Sahara,

that will be true, too.

The problem of applying law in

Western Sahara suffers from several

phenomena. A first is that the case of

the Sahrawi people has become

obscure, perhaps more so in the

aftermath of the 2011 Arab Spring and

the mass humanitarian crisis in Syria

(and the collapse of the governing

order in nearby Libya). But the

comparative problem of Western

Sahara, after 40 years of occupation

and a quarter-century of a stalled UN-

led process and relative to the serious

cases of Namibia and East Timor that

saw considerable crimes by their

occupying regimes in the day, is that

its circumstances — those of the

Sahrawi people — have come to be

viewed in the light of present

circumstances that seem to avoid

collective disapproval and action by

the community of states. Here lies the

core of the “problem” of Western

Sahara. States may disregard thinking

about and calling for the application of

international law (be it Article 73 or

the law to conserve Sahrawi natural

resources) because they can elect the

easier path of deferring to a UN that

has assumed (and failed) in this

particular decolonisation project. It is

this that makes the Audencia Nacional

decisions the most legally

consequential of recent developments.

(There is no question that the CJEU

judgment will have considerable

political impact.) That is because the

application of international criminal

law can be — as jurists in the English

common law tradition like to put it —

an “unruly horse”, one not tamed by

the preference of governments anxious

to keep the “question” of Western

Sahara removed from their shores.

The allegations of the 2015 genocide

decision — and they remain only

assertions of past serious crimes — are

troubling. The acts under investigation

include murder, torture and illegal

detention. Credible independent

human rights interlocutors have made

clear that such acts continue up to the

present. The September 2012 report of

the Washington-based Robert F.

Kennedy Center for Justice & Human

Rights (as it was then) is instructive in

this regard. It is clear that extensive

investigation was done into the events

of the occupation in its early years.

The allegations date for the most part

from 1975 until 1978, with others

through the 1980s until 1992. Credit is

due to AFAPREDSA, the Sahrawi

Association of Families of Imprisoned

and Missing Persons, which persevered

in collecting extensive evidence.

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The 12 named Moroccans — one is

now dead — were among the

“managers” of the early occupation.

One was the governor of the territory,

others local civic heads (walis), senior

Royal Moroccan Armed Forces (FAR)

officers, and commissioned police

officers. (Morocco’s presence in

Western Sahara, it should be recalled

did not extent to Dakhla and places

south until after Mauritania departed

the territory in 1979 after a peace

treaty with Polisario.)

The recital of alleged crimes in the 40

page decision makes for grim reading,

one not found in the historical or

academic record. The severity of the

early occupation and toll in human

suffering is stark; a piercing light in the

grey fog of consideration by which

people now understand Western Sahara

as a banal process toward the self-

determination of its people. In an

infamous 1975 interview (one can

readily find it on the internet), a

western television reporter asks

Morocco’s King Hassan II what awaits

when Morocco enters Western Sahara.

The monarch pledges no quarter or

mercy for the Sahrawi army. But, in

the event, it was a brutality visited on

the Sahrawi people.

A central allegation is the napalm

bombing of the Um Dreiga refugee

camp in February 1976, an event long

confirmed by survivor testimony (and

their recorded condition) and the

physical evidence at the scene. (The

best account of the incident can be

found in Carlos M. Beristain and

Eloisa Gonzalez Hidalgo’s

monumental 2012 work, El Oasis de la

Memoria: Memoria Histórica y

Violaciones de Derechos en el Sáhara

Occidental.)

Even those familiar with the colonial

history of Spanish Sahara will

welcome the court’s recital of the

essential facts and the Spanish legal

framework then and now that had to be

addressed. The court also noted (on

page 8) that the 1991 UN created

mission in Western Sahara (Minurso)

continues without a mandate “to

monitor the protection of human

rights”. Very little is made of the

application of Spain’s criminal law

into the territory. Here, the Audencia

Nacional was content to recite the

national and international regime

applicable to Western Sahara,

including the 1948 Genocide

Convention and the 1975 ICJ advisory

opinion.

This time, there was little discussion of

Article 73 and none of the Rome

Statute. There seemed to be little need

to justify the extension or continuity of

criminal law into the territory, as if

such a result was entirely expected in

the ordinary course. And, indeed,

international criminal law has similarly

evolved, to what seems to be a

surprising universality given its

difficulties in the half century after the

Nuremburg and Tokyo war crimes

trials. The biggest surprise may be the

reaction of the jurists and those who

study the law for its just application in

the case of the Sahrawi people: We

have long been content that the right of

the Sahrawi people to self-

determination is well established and

that, given the intractable situation, no

new legal innovations would be useful.

The tide of reasoning in this second

decision is a subtle one, as if the path

of Spanish criminal law would

naturally have led to such a result.

Innovating to justice

The delivery of justice for the Sahrawi

people is something else altogether.

International law works without

compulsion between states, and most

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clearly upon a UN that has not seen to

its stated responsibility for the Sahrawi

people. The great legal innovation of

requiring states to act to meet their

obligations for self-determination (or

ensure respect for international

humanitarian law, as the case of Syria

so tragically demonstrates) will be

found only in the realm of theory. But,

if the law’s progress is measured in

tentative half steps, the Audencia

Nacional decisions will prove to be a

great leap forward. That is because

they undeniably illuminate the criminal

nature of any otherwise anodyne and

disregarded “question” of

decolonisation reserved for the United

Nations. Justice is first an appreciation

of the essential facts, how they are

wrong, and can be remedied both

systemically and from case to case.

The law’s innovation for the Sahrawi

people, 40 years on, continues.

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Advancing self-determination over natural resources

By Aisha Dennis*

n a key development for supporters

of the Sahrawi right to self-

determination, legal challenges to

the EU-Morocco Association

Agreement and the Fisheries

Partnership Agreement are to be heard

at the Court of Justice of the European

Union.

If a tin of sardines or a packet of cherry

tomatoes in your local supermarket is

labelled as produce of Morocco, there

is a good chance that it comes from

Western Sahara, but Sahrawi people

are not benefitting from their sale.

European and Moroccan fishing

vessels trawl Sahrawi waters, depleting

fish stocks and displacing the small-

scale traditional craft of Sahrawi

fishermen and women. Meanwhile,

Moroccan companies operate large

agricultural complexes, cultivating

water-intensive crops, particularly

tomatoes, whilst Sahrawis struggle to

cope with water-scarcity.

Sahrawi agricultural workers, and

fishermen and women’s unions report

discrimination in the labour market,

with the majority of jobs created by

these industries going to EU and

Moroccan workers, including settlers

and seasonal workers.

Capital that Morocco raises by selling

fishing licences and exporting produce

to the EU is not invested in

infrastructure for the Sahrawi people,

who lack adequate healthcare and

educational provision. Instead, a

portion is invested in the infrastructure

of the Moroccan fisheries and

agricultural sectors in Western Sahara.

In other words, it is invested in the

architecture of occupation.

Two treaties, agreed by the European

Union (EU) and Morocco allow or

encourage this to happen: the

Association Agreement and the

Fisheries Partnership Agreement

(FPA). A UK-based NGO, Western

Sahara Campaign (WSC), recently

won the right to have its challenge to

both Agreements heard before the

Court of Justice of the European Union

(CJEU).

The Campaign argues that, properly

interpreted, the Agreements cannot

apply to Sahrawi land or waters. The

FPA applies only to the “the waters

falling within the sovereignty or

jurisdiction of the Kingdom of

Morocco” and the Association

Agreement excludes from preferential

tax treatment, produce originating from

outside the territorial boundaries of

Morocco, as defined under

international law.

However, in practice, the FPA allows

EU member states to grant licences to

European fishing vessels to fish in

Sahrawi waters because it fails to

delimit the southern boundaries of its

application and the lawful limitations

of Moroccan jurisdiction. The

Association Agreement permits

Morocco to declare the country of

origin for produce it exports, even if it

is from Western Sahara, so it enables

the Kingdom to benefit from

preferential trade tariffs on Sahrawi

produce exported to the EU by

labelling it as Moroccan.

I

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These lacunas or gaps in the treaties’

provisions, reflect a failure to

recognise the right of Sahrawi people

to self-determination over their land

and natural resources, legitimise

Morocco’s forty-year occupation of

Western Sahara and incentivise the

continued unlawful settlement of

contested territory through preferential

tax treatment and fishing-licence fees.

The European Commission’s failure to

address these issues is, in turn, a

breach of international law. The EU

and its member states are legally

obliged to promote the realisation of

the right to self-determination, to end

serious breaches of this pre-emptory

norm and not to recognise as lawful or

aid in any way, its violation, or other

violations of principles of international

law. The latter include strict conditions

for the lawful exploitation of natural

resources in non-self-governing

territories.

According to the UN General

Assembly, and former UN Legal

Counsel Hans Corell, the exploitation

of natural resources in a non-self-

governing territory, can only be lawful

if it is undertaken “in collaboration

with the peoples of the Non-Self

Governing Territory”, “for the benefit

of the people of the territory” and “in

accordance with their wishes”. In this

context, the intended recipients of such

benefits are the Sahrawi people

because, as a matter of law, the former

are the sole beneficiaries of the right to

self-determination and sovereignty

over their land and its resources.

The requirements identified by Mr

Corell have not been met. Indeed, in

their current form, the FPA and

Association Agreement do not require

the parties to meet these obligations, as

there is no mention of the Sahrawi

people in the text of the legislation.

The minutes of a meeting between the

EC and Morocco, at which the

implementation of the FPA and its

2013 Protocol were discussed,

acknowledge that the local population

must benefit from the treaty. However,

since Morocco has historically argued

that this group includes settlers and

migrant workers who outnumber

Sahrawis, this cannot be read as

confirmation that the Sahrawi people

will benefit from the exploitation of

their resources or that exploitation will

be carried out in collaboration with

them or in accordance with their

wishes. Collaborating with, or

benefitting settlers or occupying

forces, or investing in the infrastructure

established by an occupying power on

occupied land, does not fulfil the

relevant legal requirements.

Further, EU Law mandates that proper

consultation is conducted during the

drafting stage of such treaties, yet the

EC did not actively solicit the views of

Sahrawi people as part of a formal,

open and transparent consultation

process, in order to establish what their

wishes and interests were prior to their

enactment. Consulting Morocco or

Sahrawis put forward by Morocco,

would not have constituted

meaningful consultation. Nor could

consultations with representatives of

the Sahrawi people carried out now, ex

post facto, render the agreements or

their implementation thus far, lawful.

Serious concerns were raised by

several EU member states before the

Protocol to the FPA came into force in

2013. Denmark and Sweden voted

against its adoption, whilst the UK and

the Netherlands abstained because

compliance with international legal

obligations, particularly in relation to

Sahrawi people, was left to the

discretion of the Moroccan authorities.

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In relation to the Association

Agreement, the European Parliament

Rapporteur on Trade maintained in

2012: ‘the rapporteur feels unable to

guarantee that this free trade agreement

will comply with the international

treaties binding the European Union

and all its Member States’.

The Respondents in this case, the

Commissioner for Her Majesty’s

Revenue and Customs and the

Secretary of State for Environment,

Food and Rural Affairs, argue that as a

de facto administering power of

Western Sahara, Morocco has the right

to exploit the natural resources there,

assuming there is no proof that the

agreements do not benefit Sahrawi

people.

Yet Morocco is a de facto

administering power due to the fact of

occupation. It is not an administering

power as a matter of law. It cannot

lawfully benefit from the rights of an

administering power, because it does

not fulfil the obligations of the latter or

view itself as bound by them. Further,

the Respondents’ formulation wrongly

places the burden of proof on the

occupied population. There should be

no question that the agreements benefit

them — this ought to be written into

the legislation.

In a landmark decision made by the

General Court of the European Union,

a key part of the Association

Agreement has recently been annulled

in a case brought by Polisario Front.

However, the EC has appealed the

decision and the appeal will be heard at

the CJEU, possibly alongside WSC’s

case.

*Aisha Dennis is a member of the legal

team at Leigh Day working on the case

for Western Sahara Campaign.

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Festivals and ‘world music’ caravans: the cultural battle for Western Sahara

By Violeta Ruano, Music Department,

SOAS, London

hroughout history, culture and

cultural representations have

been a powerful means of

expression, as well as control,

of individual and collective identities.

Expressive culture and its performance

on different socio-political levels are

part of the daily lives of the inhabitants

of any nation, imagined or otherwise.

They are also key elements in the

construction of tight communities —

for example during post-colonial

processes of reunification — and their

promotion in the outside world. So, it

is not surprising that post-colonial

nations in Africa have dedicated

important resources to the creation and

maintenance of “ministries of Culture

that were assigned responsibility for

recovering and recuperating the past”

(Askew, 2002: 13). The question is

who decides on the past that is going to

be recovered and promoted, and how.

Since the death of Moroccan king

Hassan II in 1999 and the protests that

followed the coronation of his son

Mohamed VI throughout Western

Sahara and other contested areas, the

Moroccan regime, and particularly its

ministry of culture and Office National

de Tourisme (National Tourism

Office), have developed a set of

policies of acculturation and national

hybridisation that aim at the inclusion

of diverse ethnic identities into an

overarching national ideal (Boum,

2007). These highlight the ‘historical’

1 www.sahara-online.net/ (accessed: 8

February, 2016).

connection of those cultures with

Morocco through various means — TV

channels, websites, academic

conferences, mass cultural festivals —

promoting a ‘collective national

consciousness’ (ibid: 215) with

political, territorial, and touristic

purposes, despite these communities

being otherwise marginalised.

In this article, I focus on some

examples of these policies currently

operating in Western Sahara, arguing

that culture has become a new key

battlefield in the 40-year-long conflict

in Africa’s last colony.

The Moroccan attempts to display and

promote a hybrid Moroccan-Sahrawi

national identity in Western Sahara are

many and varied. They include the

indoctrination of Sahrawi students in

and outside the classroom, the

celebration of Moroccan national

holidays with mass performances of

Sahrawi poetry and music, the

promotion of Sahrawi coastal cities —

especially Dakhla — as ‘Moroccan’

touristic paradises, the creation of

promotional websites about the culture

of the ‘Moroccan Sahara’,1 as well as

the organisation of several annual

cultural festivals in the desert and in

key cities under occupation. Some of

the most high profile of these are: the

Taragalte Festival in M’Hamid El

Ghizlane,2 which celebrates the

Moroccanness of the Bedouin desert

culture; the Moussem Festival in Tan

Tan (ironically, the birth town of

Sahrawi revolutionary leader El Uali

2 http://www.taragalte.org/?lang=en (accessed:

7 February, 2016).

T

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Mustapha Sayed),3 which in 2005 was

included in the Unesco list of

Masterpieces of Oral and Intangible

Heritage of Humanity as part of

Morocco’s national cultural heritage;4

the Festival International Rawafid

Azawane in the capital of Al Aaiun;

the Boujdour Festival;5 and the

Festival of Hassani Poetry in the

coastal city of Dakhla.6 Staged for five

years running now (2007-2011) this

last festival has become internationally

recognised and an important touristic

destination, attracting foreigners to

participate in cultural and sporting

activities, including surfing, beach

camping, traditional nomadic singing,

and poetry recitals. But, during the

2011 event, the festival led to mass

protests by the local population in

Dakhla and other Sahrawi urban

centres,7 leading to its cancellation.

In addition, Moroccan policies of

acculturation in Western Sahara are

also represented by the recent

celebrations on 6 November, 2015, in

Al Aaiun of the 40th anniversary of the

Green March — the mass migration of

350,000 Moroccan settlers, backed by

troops, into Western Sahara in 1975

that marked the symbolic beginning of

the occupation in the territory. These

celebrations, typically an annual

national holiday, included the first visit

to Al Aaiun of Mohamed VI in years,

accompanied by a mass deployment of

security forces and the smothering of

the city in Moroccan flags.8 They also

3 Although they are located in southeast

Morocco, both M’Hamid El Ghizlane and Tan

Tan, locally known as the doors of the Sahara

desert, stand on traditionally Sahrawi land. 4 http://www.unesco.org/culture/intangible-

heritage/26arb_uk.htm (accessed: 7 February,

2016). 5 www.sahara-

culture.com/Default.aspx?tabid=408 (accessed:

7 February, 2016). 6 www.dakhla-festival.com/index_en.htm

(accessed: 7 February, 2016).

involved the organisation of the third

staging of the Caravan de la Marche

Verte (Caravan of the Green March),

with more than 300 Moroccans and

international visitors travelling from

Marrakesh to Al Aaiun by car,

motorbike and other means, sponsored

by the Maghreb Motor Sports

Association.9 Participants, who paid

around €174 for three days of lodging,

transport, insurance and merchandise,

were given red and green t-shirts,

emulating the Moroccan flag, as well

as flags and other nationalistic

paraphernalia. Through the

coordination of a physical and very

visual reminder of the invasion of

Western Sahara, disguised as a cultural

and touristic event, Morocco restates

every year its political and

geographical claims over the territory.

And the examples keep multiplying. A

few months earlier, in January 2015, a

joint Moroccan-Malian initiative

started circulating throughout some of

the most well known ‘world music’

circles, and particularly among the

lovers of the relatively new ‘desert

blues’ sound, developed in West Africa

throughout the 1990s and 2000s

(Durán, 2013). The second Caravan

Culturelle pour la Paix (Cultural

Caravan for Peace)10 — a mass trans-

Saharan cultural convoy that involved

the touring of musicians and other

artists from different North-West

African countries, including Morocco,

Mauritania, Burkina Faso, Niger, and

7 www.afrol.com/articles/37450 (accessed: 8

February, 2016). 8 www.eldiario.es/desalambre/Mohamed-VI-

Sahara-Marcha-Verde_0_449006013.html

(accessed: 8 February, 2016). 9 lematin.ma/journal/2015/la-3e-edition-de-la-

caravane-de-la-marche-verte/234677.html

(accessed: 8 February, 2016). 10 www.culturalcaravanforpeace.org/?lang=en

(accessed: 7 February, 2016).

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Mali — in an attempt to re-establish

“dialogue, cultural exchanges, social

cohesion, peace, tolerance and cultural

diversity in the regions of the Sahel

and the Sahara”, as it stated on the

promotional website. The tour started

with the Moroccan Taragalte Festival

of Saharan Music,11 celebrated

annually in

M'hamid El

Ghizlane

(southeast

Morocco),

and

culminated

on 21

February

last year

with a

Peace

Concert in

Bamako,

Mali’s capital. With sponsorship as

varied as Malitel (a Malian phone

company), US Aid, the Norwegian

Embassy in Mali, the Belgium

government, among others, this

initiative was organised by the Malian

Festival au Désert (Festival of the

Desert),12 an internationally recognised

musical event that has usually been

celebrated since 2000 in Essakane,

near Timbuktu in the north of Mali.

Since the Tuareg uprisings of 2011 and

consequent civil war it has been exiled

to Mopti in central Mali.

The official promotional poster of the

Cultural Caravan for Peace, much

shared through social media by

audiences and participating musicians

alike throughout the duration of the

caravan, features a map of the region

showing the key dates and stops of the

tour, as well as some of the

participating countries.

11 www.taragalte.org/?lang=en (accessed: 7

February, 2016).

This map depicts a symbolic

rapprochement between Morocco and

Mali represented by the Caravan. It

carries two significant geographical

inaccuracies: first, it gives the

impression that Mauritania is located

directly east of Morocco, disregarding

the existence of Algeria and the

Sahrawi

refugees

living

around the

Algerian

desert city of

Tindouf;

second, as

we might

expect from

a Moroccan-

led initiative

such as this,

the map

clearly shows Western Sahara as an

integral part of Morocco without

leaving any room for interpretation

since the word Maroc (Morocco)

appears written on top of the northern

Sahrawi territory. In addition, the map

represents the western part of the

Sahara desert — the vast territory

between Morocco and Mali — as an

empty piece of land, ignoring its rich

cultural history.

The inclusion of Morocco in the

Cultural Caravan for Peace as one of

the potential peacemakers in the

Sahara region, as well as purported

safeguarder of traditional culture in the

Sahara, contrasts starkly with the

systematic denial of human rights,

including cultural rights, in Western

Sahara since the invasion of the ex-

Spanish colony in 1975. These include

abuse, police harassment, arbitrary

detentions, and torture. They also

manifest as prohibitions on speaking

12 http://www.festival-au-desert.org/ (accessed:

7 February, 2016).

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Hassaniya and Spanish in public

spaces such as schools, difficulty in

accessing higher education for Sahrawi

students, the banning of traditional

tents in the main Saharawi cities, and

the continuous censorship of any

Sahrawi cultural activities that are not

exclusively state-led (Deubel 2012).

These have been denounced by

international NGOs such as Amnesty

International, Human Rights

Watch and the Robert F. Kennedy

Center for Justice & Human Rights,

among others (see Report 2015).

In addition, the noticeable exclusion of

Western Sahara and some of its most

representative musicians as one of the

touring countries from the region also

contrasts with the past support of the

Festival au Désert for Sahrawi national

music band Tiris (based in the

Saharawi refugee camps) that had its

international debut in Essakane in

January 2006, as well as with the well

known advocacy for peace and human

rights of Sahrawi singers Mariem

Hassan and Aziza Brahim. These

measures exemplify Morocco’s

attempts to reinterpret the geography

and history of the area to depict

Sahrawi land and culture as

intrinsically Moroccan.

This brief analysis of some examples

of Moroccan cultural policies in

Western Sahara has demonstrated how

the manipulation of expressive culture

is a recurrent strategy used by the

Moroccan regime to assert its claim

over the territory of Western Sahara.

The organisation of cultural festivals

and caravans exclusively led by the

state allows the Moroccan regime to

reinforce the idea of the existence of a

distinctive ‘Moroccan-Sahrawi

national identity’, as well as to present

Morocco to the international

community as a welcoming and peace-

abiding nation despite the numerous

human rights reports that show

otherwise. Culture is an increasingly

important battlefield in the struggle for

Sahrawi self-determination.

References:

Askew, Kelly. 2002. Performing the

Nation: Swahili Music and Cultural

Politics in Tanzania. Chicago:

University of Chicago Press.

Boum, Aomar. 2007. ‘Dancing for the

Moroccan state: ethnic folk dances and

the production of national hybridity’.

In North African Mosaic: A Cultural

Reappraisal of Ethnic and Religious

Minorities, edited by Nabil Boudraa

and Josephy Krause, 214-237.

Newcastle, UK: Cambridge Scholars

Publishing.

Deubel, Tara. 2012. ‘Poetics of diaspora:

Sahrawi poets and postcolonial

transformations of a trans-Saharan

genre in northwest Africa’. The

Journal of North African Studies, 17

(2): 295-314.

Durán, Lucy. 2013. ‘POYI! Bamana jeli

music, Mali and the blues’. Journal of

African Cultural Studies, 25 (2): 211-

246.

Robert F. Kennedy Human Rights;

Association Française d’Amitié et de

Solidarité avec les Peuples d’Afrique;

Collective of Sahrawi Human Rights

Defenders; Bureau des Droits de

l’Homme au Sahara Occidental;

Fondation Danielle Mitterrand/France

Libertés; Action by Christians for the

Abolition of Torture-France;

Sandblast. 2015. Report: Observations

and Topics to be Included in the List

of Issues. On the occasion of the

Kingdom of Morocco’s fourth periodic

report on the implementation of the

International Covenant on Economic,

Social and Cultural Rights.

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