The Decolonization Process
By Kamal Fadel
Polisario Representative to Australia
Paper delivered at the Center for Middle East and North African Studies, Macquarie University-Sydney, On 6 April 2000
"In the entire four-decades of history of the decolonization of a billion people, there were only three exceptions to this rule of decency, reason and good order: Western New Guinea and Timor, and the Western Sahara, a Spanish colony which was occupied by Morocco against the clearly evident wishes of its Inhabitants." 2
When the late monarch of Morocco, Hassan II realized that his reign was threatened by his army, which tried to overthrow him twice in 1971-72 and his monarchy suffering from dire economic conditions, political turmoil, he had to find a way out of that situation. He came up with a rather cunning solution: to divert attention from the domestic issues by getting involved in a foreign issue. Therefore in 1975 he sent his army to conquer the rich territory of Western Sahara. He provided food and transport to a 350.000 of the poor and unemployed Moroccans and sent them on a new nationalist crusade; the so-called "Green March", in an effort to revive the old dream of creating the empire of Greater Morocco. It was a Machiavellian plot.
At a first glance the King's plan seemed to work, but what he didn't know was that he underestimated the will and determination of the Saharawi people to achieve their freedom and independence. He indeed committed a mistake that will haunt him to his last days.
However, the consequences of King Hassan II's decision to invade Western Sahara would be most felt by the Saharawi people. Thousands were killed, towns and cities were destroyed and 165.000 Saharawis had to flee for safety into the desert of neighboring Algeria and have live there for the past 25 years in harsh conditions in tents.
On 14 November 1975, Spain signed a secret agreement with Morocco and Mauritania and handed the territory to them ending almost one hundred years rule over Western Sahara. In 1979, Mauritania abandoned its territorial claim over Western Sahara and signed a peace treaty with the indigenous people of Western Sahara. However, Morocco maintains administrative control and continues to claim sovereignty over most of the territory. The United Nations ("the UN") and the Organization of African Unity ("the OAU") have been trying to organize a referendum on self-determination in Western Sahara for the past nine years.
In the following paper I will discuss whether the Sahrawi people of Western Sahara constitute a people 3 entitled to the right to self-determination under customary international law 4 . The distinctiveness of the Saharawis as a people who are different from surrounding nations will be examined in both pre-colonial and colonial contexts as well as in relation to Morocco's claims to sovereignty over traditional Sahrawi territory. The UN-OAU peace plan will be assessed.
THE PRE-COLONIAL ERA
Before the Spanish arrived in Western Sahara, the area was inhabited by a group of tribes who were known as the ahel es-Sahel: people of the littoral or Atlantic Sahara, now known as Saharawis. They had their own system of government called the ait arbain or "The Council of Forty". The Council would usually meet to discuss the affairs of the population and in times of war or crisis. The Council organized the Saharawis resistance to Spanish, French and Portuguese attempts to occupy their land and succeeded in keeping colonial powers out of the territory from 1500 to 1934. In 1934, the French and Spanish combined forces to "pacify" the Saharawi resistance to colonization.
The Saharawis see themselves as a nation separate and distinct from neighboring peoples in what is now North Western Africa. Traditionally, they lived as nomads and warriors. The arid terrain, mainly desert, molded their culture and shaped their distinctiveness. They speak a dialect of Arabic called Hassania, which is unlike the Tashelhit dialect spoken by the Berbers of Morocco. Other features such as social customs, diet and clothes emphasize their distinctiveness.
The Saharawis' experience of colonization by the Spanish was different from that of Morocco, which was colonized by the French, further enhancing the differences between Sahrawis and Moroccans 5 . Another factor contributing to Saharawis' modern distinctiveness to Moroccans is the growth of nationalism in Western Sahara.
Saharawi nationalist sentiments grew when more Saharawis were educated and became aware of the struggles of peoples demanding independence in other parts of Africa and the world. In late 1967, Sahrawis set up a movement called Harakat Tahrir Saguia el-Hamra wa Oued ed-Dahab (Organisation for the Liberation of Saquia el-Hamra an Oued ed-Dahab) to demand a peaceful transition to independence for Western Sahara. Following an uprising in 1970 the movement was crushed by the Spanish, when most of its leaders and members were either imprisoned or killed 6 .
When peaceful means failed, Saharawi students set up a liberation movement called the Frente Popular para la liberacion de saguiet el hamra y Rio de Oro (Polisario Front) on May 10, 1973. The new movement adopted armed struggle against the Spanish and soon the overwhelming majority of the Sahrawis rallied to its ranks, making it an Indigenous nationalist movement without support or encouragement from any external powers.
The Charter of the United Nations recognizes the right of peoples to self-determination 7 . It also recognizes that, largely because of colonialism, not all peoples who claim this right will be immediately able to exercise it fully 8 . Peoples in this situation are deemed to be in non-self-governing territories and for them the UN General Assembly has established de-colonization programs 9 .
In 1963 Western Sahara was included in the UN list of the non-self-governing territories and in October 1964 the UN Decolonization Committee 10 adopted its first resolution on Western Sahara, urging Spain to start the process of decolorizing the territory 11 . The UN General Assembly issued a similar Resolution on December 16, 1965 12 .
Initially, Spain resisted this call but in August 1974 it informed the UN that it was prepared to organize a referendum on self-determination in the territory. In this referendum, the people of Western Sahara could choose either full independence or to remain attached to Spain 13 . Morocco and Mauritania opposed the referendum idea, which excluded the possibility of integration with Morocco or Mauritania.
Between 12 and 19 May 1975, a UN mission of inquiry was sent to report on the situation in Western Sahara. The mission visited Western Sahara, Morocco, Mauritania and Algeria. In its report, it stated that support for Polisario and for independence in Western Sahara was widespread and recommended the holding of a referendum for self-determination 14 .
In order to postpone the referendum, Morocco, with the support of Mauritania, asked the UN General Assembly to seek an arbitration from the International Court of Justice ("the ICJ") and to give legal advice on this matter. On December 13, 1974, the ICJ was asked to give an advisory opinion on: (1) whether or not the Western Sahara had been terra nullius - a territory belonging to no one - at the time of Spanish colonization; (2) if it was not terra nullius at the time of Spanish colonization, what was the legal relationship between Western Sahara and Morocco, and Western Sahara and Mauritania? 15
In international law, sovereignty has two elements: territorial and jurisdictional 16 . Morocco claims that before Spanish colonization, Western Sahara was Moroccan territory. To satisfy the jurisdictional test for sovereignty, it cites evidence that at the time of Spanish colonization, some Saharawi tribes paid allegiance to the Moroccan throne. Specifically, it relies on the Islamic concept of the bayaa or allegiance amounting to "a contractual agreement whereby the Muslim community offered a conditional loyalty to its caliph (leader) in response to his recognition of his obligations under the sharia" 17 .
On this basis, it claims firstly that it, not Spain, has a legitimate claim to sovereignty over the territory of Western Sahara. It also claims that the principle of uti possidetis juris 18 , which holds that colonial boundaries cannot be altered on independence or Decolonization, applies to that territory.
THE ICJ VERDICT
The ICJ studied all the documents presented to it by Morocco, Mauritania, Spain and Algeria but the Saharawis were not allowed to appear before the Court since the ICJ can only hear evidence from States 19 . After twenty-seven sessions, the Court's sixteen judges issued their opinion on October 15, 1975 20 .
The Court decided unanimously that Western Sahara was not terra nullius when Spain proclaimed a protectorate over it in 1884, since it "was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them" 21 .
With regard to the Moroccan and Mauritanian claims the Court studied the evidence provided to it. The Court asserted that the evidence presented to it was "far-flung, spasmodic and often transitory." All of Morocco's treaties and correspondence with European powers of that time indicated that Morocco had no control over Western Sahara. On the evidence of Morocco's relations with Western Sahara before colonization, the ICJ concluded:
"the inferences to be drawn from the information before the Court concerning internal acts of Moroccan sovereignty and from that concerning international acts are, therefore, in accord in not providing indications of the existence, at the relevant period, of any legal tie of territorial sovereignty between Western Sahara and the Moroccan state." 22
The court then gave the conclusion of its opinion regarding the legal ties between Western Sahara, Morocco and Mauritania:
The Court's conclusion is that 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 resolution 1514 (XV) in the Decolonization 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 23 .
The decision of the ICJ is of great significance. As Thomas Frank put it, "the judges asserted the supremacy of the norm developed by UN resolutions and the practice of Decolonization: the Sahrawi population was entitled to self-determination within the perimeters of the existing colonial entity" 24 . It is clear that the ICJ decision is a rejection of the Moroccan claim of sovereignty over Western Sahara
Despite the Court's decision, Morocco and Mauritania invaded and occupied Western Sahara in 1975 in a grave violation of international law. The UN Security Council adopted a resolution deploring the invasion and calling on Morocco to withdraw from the Territory 25 but the resolution was never enforced. The invasion provoked a prolonged war causing great suffering to the Indigenous Sahrawis who have since been denied their basic human rights. It is a human tragedy rarely noticed by the rest of the world.
Since its occupation of Western Sahara Morocco has used the system of disappearances, by kidnapping Saharawis. The kidnapped person is taken to unknown location, put in a dungeon, tortured and left there to rot. Their family is left to wonder about their fate for many years. Almost 1000 Saharawis have been subjected to this cruel practice.
The Moroccan regime had denied the existence of the disappeared until 1991, when as a result of international pressure, they released 270 Saharawis who had disappeared for 16 years. They were not allowed to talk about their experiences and had to constantly report to the police. Only those who managed to escape have brought to the world the horror of what they went through. They have confirmed the death of many of their compatriots in Moroccan jails and the existence of hundreds who remain "disappeared".
All those who were released have not been told why they were jailed or given any compensation. The families of those who died in prison were not given any confirmation about the death of their loved ones or the whereabouts of their graves let alone the trial of the people who were responsible for their torture and murder.
Human rights organizations have regularly condemned the appalling human rights record of the Moroccan regime, particularly the inhuman treatment of the Saharawis who are under siege in the occupied territories. 26 But there are no indications that Morocco is taking any notice of these criticisms. Human rights abuses continue unabated, even the presence of the UN in the territory has not deterred the regime from continuing its campaign of terror.
On 25 February 2000, the US Department of State for Democracy, Human Rights and Labor published its Reports for 1999 on Morocco and Western Sahara. It confirms that the Moroccan Regime continues to suppress Saharawis in the occupied areas of Western Sahara. "In what were clearly the worst instances of police excess during the year, police authorities in Laayoune (Capital of Western Sahara) used brutal force to break up demonstrations organized by students, unemployed graduates, miners and former Saharawi political prisoners Öpolice encouraged thugs in civilian dress to break into, loot and destroy shops owned by local Sahrawi residents in the city."
The report mentioned that 46 Saharawis were sentenced to prison terms ranging from 2 months to 15 years for simply participating in a peaceful demonstration. The report added, "some persons whose homes were searched were also beaten by police who came to arrest other members of the household. No official investigation was made into the police's conduct, and no police authorities were charged with any criminal or civil wrongdoing by year's end." 27
Another sad aspect of this tragedy is the fate of the Moroccan prisoners of war captured by Polisario. From time to time as a gesture of good will and compassion the Sahrawi independence movement would announce the release of all the Moroccan POWs who are ill, old or have been captured for a long time, to allow them to go to their families. But to the astonishment of the Saharawi side and the dismay of the Moroccan prisoners, the Moroccan regime had always refused to let its own citizens go back to Morocco. The reason is that the Moroccan regime is afraid that the prisoners would contradict its propaganda about the Saharawis and they would tell the true story about the illegal Moroccan invasion of Western Sahara. Only after strong international pressure had they allowed some of these prisoners to go back to Morocco.
Although the UN has called for a referendum to be held in Western Sahara since 1966, the current Peace Plan stems from the efforts of the OAU to find a solution to this African conflict. The OAU has tried to medicate in the conflict from the outset; its main contribution was to establish an ad hoc committee in 1978, also known as the Wise Men's Committee. Its task was to investigate the Western Sahara conflict and report back its findings. In July 1979, the Wise Men's Committee produced a report to the OAU summit in Liberia. The Report called for the organization of a free and fair referendum to enable the Saharawi people to exercise their right to self-determination. 28 Morocco refused the idea until 1981 and on 11 June 1983 the OAU summit in Addis Ababa adopted a resolution (AHG/res.104 (XIX), which approved the referendum idea. The UN endorsed the OAU's referendum idea in 1985 through its General Assembly Resolution 40/50. But there was no progress until three years later.
In August 1988, as a result of war-weariness and international pressure, Morocco agreed to a UN-OAU peace process. Central to the UN-OAU peace plan ("the plan") is the holding of a referendum providing an opportunity for the Saharawi people to exercise their right to self-determination in a free and fair manner. A cease-fire was declared in September 1991 and a UN mission (MINURSO) was deployed in the territory. According to the original plan 29, the referendum should have taken place in January 1992. However, it was postponed first until 1996, then until 1998, and was due to take place in July 2000 but that again seems unlikely now.
Soon after the cease-fire came into effect in 1991, Morocco began to claim that the Spanish census of 1974 was not correct because, according to Morocco, it had excluded a large part of the "Saharawi" population. Morocco began moving thousands of its people from Morocco to Western Sahara claiming that they had the right to vote in the Referendum.
The Polisario Front rejected this position, maintaining that the peace plan stipulated clearly that the Spanish census of 1974 would be the exclusive basis of the referendum electorate. It also emphasized that the parties had agreed as much in 1988. Polisario warned that Morocco was trying to include people who do not belong to the territory in the voting lists and that this was a violation of the Plan.
It was clear from the beginning that Morocco wanted to sabotage the referendum because of its fear of losing it. In December 1991 the UN Special Representative for Western Sahara resigned in protest at UN tacit agreement to Morocco's violations of the Plan. Morocco had blocked the deployment of the UN mission (MINURSO) and halted its logistical supplies at the Moroccan ports. Foreign visitors, the media and NGOs were not given access to the Territory. The UN also reported many violations of the cease-fire. It was also revealed that a UN staff member had leaked sensitive Polisario data to the Moroccans.
In 1995, the Deputy Chairman of MINURSO's Identification Commission, former US Ambassador, Frank Ruddy, testified before the US Congress about the UN operation in Western Sahara and its lack of progress. He described the Moroccan behavior as "Mafia-like" and characterized it as "thuggery". He mentioned that the UN telephones were tapped, its mail tampered with and its staff regularly searched. He added that the Saharawis were harassed, those registering to vote were photographed by the Moroccans and their registration cards taken away after they had been identified. He reported that that the Moroccans "ran the show " and that they had told him that "Morocco does not want the referendum because the risks outweigh any possible gains." 30
Mr. Ruddy added elsewhere "Morocco's thuggery reminded me of the bad old days in South Africa. Saharawis registering would ask if there were some way we could keep an eye on them. They were afraid they might just disappear. At the same time they were scared to be seen talking to UN people on the street." Mr. Ruddy was also very disappointed about the way the UN dealt with Morocco's obstructionist attitude and delaying tactics. 31
The peace process moved very slowly until Kofi Annan became the Secretary General of the UN in 1997 and appointed James Baker III as his Special Envoy for Western Sahara. Negotiations between Morocco and the Polisario were held under the auspices of the UN Special Envoy on many occasions and culminated in an agreement, which was signed in Houston, Texas in September 1997 ("the Houston Agreement"). The Houston Agreement strengthened the key aspects of the original plan: voter identification, refugee repatriation, troop confinement, release of prisoners, freedom to campaign, access for international observers and the UN authority to ensure a free and fair referendum process. The fact that the Houston Agreement was negotiated by the parties involved and signed under UN auspices has created a real momentum for the whole process. However, the process remains fragile and there are still doubts about Morocco's good will and readiness to let the referendum take place.
On 17 January 2000, the UN published the list of 86.386 of eligible voters out of 198.469 applicants. In order to delay further the referendum, Morocco lodged the list of 139.000 appeals on behalf of almost all those who were rejected by the UN from the Moroccan side. According to the UN it would take about 3 more years to reassess each individual case. This means more time and resources for the UN and more suffering for the Saharawi people.
The latest UN Secretary-General report of 17 February contained a "sobering assessment" of the peace plan. He doubted that there would be a "smooth and consensual implementation of the Settlement plan and other arrangements". His assessment is that the "timetable envisaged is no longer valid" and the date for the referendum can still not be set with certainty". He asked Mr. James Baker, to initiate a new round of talks with the parties. Mr. Baker is due to visit the region between 8 and 11 April.
THE APPEALS PROCESS
The United Nation's rules regarding the appeals are clearly indicated in Article 5 of the Operational Directives for Implementation of the Appeal Process, which states: "the application submitted by the applicant must include the grounds for the appeal and a list of the supporting documents provided." And Article 22 of the same document states that "decisions regarding admissibility of appeals shall be immediately announced by the Appeals Chamber, which in the case of appeals deemed admissible, will proceed with hearings on the substance." 32
Dr. Susan Marks, distinguished international jurist of Emmanuel College, Cambridge in a legal opinion about the Appeals Process, concluded that "this is a right to lodge an appeal, not a right for the appeal to be deemed admissible" and added that "the admissibility provisions serve to ensure that only those applications go forward for consideration on the merits which appear prima facie to have reasonable prospect of success".
The Polisario Front remains totally committed to the implementation of the UN Settlement Plan, and considers that there are no reasons whatsoever to delay further the holding of the referendum. Polisario had expressed its willingness to cooperate with the UN Secretary-General and his special envoy Mr. James Baker, in their efforts to speed the process and find a just and lasting solution to the conflict in Western Sahara. If the UN fails in its efforts the resumption of hostilities can not be ruled out.
It is to be noted that no country in the world has recognized Moroccan sovereignty over Western Sahara. The Saharawi republic (SADR), proclaimed in 1976 by the Saharawis has been recognized by 76 countries. The SADR was admitted to the OAU in 1984 when the majority of the African states recognized it. 33
The Saharawi cause enjoys worldwide support and sympathy. Many international organizations such as the UN, OAU and the Non-Aligned movement have adopted resolutions in support of the right of the Saharawi people to self-determination. Last month the European Parliament adopted a resolution reiterating its "full support for the UN peace plan adopted by the parties and particular for the holding of the free, fair and impartial referendum on self-determination in Western Sahara provided therein." 34
The right of peoples to self-determination is enshrined in the declarations of the United Nations and the Organization of African Unity. 35 Furthermore, the ICJ verdict upheld that the Sahrawi people are entitled to exercise this right. Therefore, the invasion and occupation of Western Sahara in 1975 was a violation of international law. Unfortunately, Morocco's act of aggression did not attract a strong reaction from the international community similar to that of the Iraqi invasion of Kuwait or the war in Kosovo.
The UN has so far failed in its efforts in Western Sahara because of the lack of major powers in the international community politically and publicly supporting the referendum. Unlike the referendum process in East Timor, which has benefited from the involvement of regional and international actors, the Western Sahara peace plan has not yet attracted due international attention. Unless there is international pressure on Morocco, the chances of the referendum proceeding in Western Sahara are very slim.
It remains the duty of the international community to make sure that a final and lasting Decolonization process is achieved in Western Sahara. The alternative to a peaceful solution will be the resumption of hostilities and the destabilization of the whole region, something the Sahrawis want to avoid.