An agenda for Western Sahara

AN AGENDA FOR WESTERN SAHARA

BY

JARAT CHOPRA

Research Associate and Lecturer in international law, Thomas J. Watson Jr. Institute for International Studies, Brown University.

Statement before the International Association of Lawyers for Western Sahara

BARCELONA, NOVEMBER 1996

Friends and Colleagues - "Saharistas,"

(I offer this term to refer to those of you here genuinely interested in the self-determination of Western Sahara.)
We all know that the United Nations deployed an operation to the Western Sahara to hold a referendum in the name of Sahrawis and as an exercise of their right of self-determination. To do so, the UN mission would establish a ceasefire, identify the electorate, organize and conduct the referendum, and underwrite its results.
Remember: this was to be accomplished according to a timetable that began in September 1991. A ceasefire was to be established immediately, and registration was to begin "as soon as possible" thereafter. This was to be completed within 11 weeks; the referendum campaign would begin in 17 weeks; the referendum would be held within 20 weeks; and the entire process would be over within 24-26 weeks.
It has been five years...What happened? And what then must we do? What is the agenda for Western Sahara now, politically and legally? I want to answer this question by addressing several domains of the overall peace process:

First, I will say a few words about the need for a general legal standard;
Second, I will question the law applicable to violations of the peace process;
Third, I need to mention the diplomatic and political context in which a legal standard will have to operate;
Fourth, I want to raise the idea for an independent judicial component; and
Finally, I have a concluding comment.

1. A Legal Standard

It is now known that the peace process got lost in the wilderness of Identification of the electorate. An elaborate chess match was dictated by diplomatic fiat, and only nominally by those few - but well-established - principles that are the first hope of an international rule of law and order, that is meant to transform the position of the weak as against the strong.

This sacrifice of justice is a tragedy because it occurs at a time of the greatest tests in the last five decades of remedies for injustice: in the field of international criminal law at the international tribunals for the former Yugoslavia and Rwanda, as well as in the discussions concerning the establishment of an International Criminal Court; and the impulses to deliver humanitarian assistance and protect human rights, the mechanisms for which have crystallized in unique forms in the first half of this decade.

The peace process was no less halted at the earlier ceasefire stage, during which only a small percentage of Moroccan violations appeared in the reports of the UN Secretary-General. And it is likely to founder at the referendum stage, as well as with acceptance of the results - which both parties have reserved their rights to reject, on grounds both have established publicly to rely on in the event.
While there is still an operation on the ground, there is not really a peace process of the parties - and I wonder if there ever has been. Violent conflict has been translated into diplomatic confrontation, and MINURSO has formalized the stalemate. The amount of disagreement between the parties is greater now than it was at the beginning of the UN's engagement. The great wall that divides the territory of Western Sahara has been replicated in New York, Geneva and the other centres of indirect talks.

For this reason, not only to break the stalemate, but really to generate a genuine peace process, we have been arguing, at least since 1993, for guaranteed open and direct talks, and attempting to develop a workable framework. And for the first time, in the Fourth Committee of the General Assembly this year, a strong statement has been made to this effect in the form of a pending draft resolution.
If passed, this may be something of a challenge by the General Assembly in an issue seized by the Security Council, which is unusual in the conventional separation of powers between the two bodies.

It is all the more interesting because it comes at a time when there is much talk of the notion of "judicial review" of the Security Council by the International Court of Justice, and the possible constitutional crisis this can cause within the Organization.

The call for direct talks as a new beginning may sound like we are going 'back to the drawing board,' starting all over again, and scrapping the hard-won experiences of recent years. But that is not quite the situation - for there is much we have learnt from the mistakes of MINURSO that can provide the focus for a legal standard of measurement of behaviour for the parties, for Member States and for UN Secretariat officials, that would be the basis of a more legitimate and more effective peace process.

And such a legal standard is necessary, not to prevent altogether the diplomatic and political departure from that standard&emdash;which will be inevitable&emdash;but to limit the degree of that departure. Until now, there has been no other instance in which the UN has diverged so much, so consciously, from such clear principles and legal conditions of self-determination. Actors have been free to be unaccountable; and a standard, therefore, must limit that luxury by at least pointing to contrary legal obligations and accepted practice.
Here, we need to identify the components of a legal standard. These include, for instance, the following:

What is the meaning of self-determination in Western Sahara? Much has been written about self-determination, and its application beyond the colonial context. But whatever new developments there are in thinking about the concept, Western Sahara is firmly situated in the conventional law established by the International Court of Justice. Yet, defining the "peoples" of Western Sahara has turned out to be a complete tangent in the evolution of the legal scope of self-determination. It can be contrasted with the UN's own practice in Namibia and Cambodia, and the European experience in the Baltics.
What has been the law pertaining to each stage of the Identification process? Here we can consider:
Morocco's movement of a population into the territory at least since 1991, and therefore the legality of the forced movement of peoples;
The terms of Identification in the Settlement Plan;
Former Secretary-General Pérez de Cuéllar's "compromise" criteria of December 1991, and the expansion of the definition of the "self" from geography to ethnicity;
The variety of Boutros-Ghali's "compromises" and "interpretations" of the criteria between 1992 and 1994. Are there limits to the normal powers of the UN Secretary-General in this context?;
And what will be the status of Sahrawis if Morocco wins the referendum, or of Moroccan settlers if Polisario wins?

Setting a legal standard may not be enough to ensure a more engaged Security Council, but it might guide the conduct of talks and a much needed review of MINURSO, and in turn identify the boundaries of a path forward. It might, like the proverbial child in the tale of the Emperor and his new clothes, point out that His Majesty is naked - or worse, that he is clothed in naked power; which, to challenge, after all, can be the role of law.

2. Violations of the Peace Process

In the past, there has been talk of financial corruption at the highest levels of the United Nations - for instance, I refer here to the charges against Pérez de Cuéllar upon his retirement. This, of course, has legal ramifications, but more within the Organization, since his culpability may be qualified externally by the diplomatic immunity of his position, at the time, and the lack of a willing or applicable jurisdiction otherwise.

There has also been talk of the current Secretary-General's lack of impartiality, and manipulation for one side of the peace process - perhaps a kind of political corruption. Diplomatic maneuvering, as such, is not necessarily a legal violation, but I wonder if there is not a problem in this context - and I pose it as a question.

In 1975, the Security Council condemned Morocco for using force unlawfully. This is a violation of the most cherished provision in the UN Charter, the prohibition on the use of force under Article 2(4). This is an international crime, for which there is individual responsibility and to which diplomatic immunity cannot extend as a protection. If a high international official, therefore, acts to preserve that unlawful status quo, and manages to prolong and continue it, then would he surely bear criminal responsibility? The kinds of judgements at Nuremberg regarding the scope of participation in aggression might have concluded affirmatively.

Furthermore, there has been manipulation by UN officials directly below the Secretary-General. Again, partisanship may violate the peacekeeping principle of impartiality and undermine the integrity of the UN's role in such transitional missions, but it is not necessarily a transgression of the law.

However, in one early instance, an individual passed the locations and strengths of one party's defences to the other, unilaterally, and thus fundamentally altered the balance of power on the ground at that time. Did not that person participate in some manner, explicitly, in the prevention of the exercise of a right of self determination?

Under the International Law Commission's "Draft Code of Crimes Against the Peace and Security of Mankind," we know that gross denials of inalienable human rights are violations of international criminal law, for which there is individual responsibility. Although the Code is still a draft document, it is nevertheless a digest of other widely accepted conventions and customary international law. But in the absence of an International Criminal Court, which national jurisdiction is courageous or interested enough to hear such a case?
Separate from this broad legal context, there is the specific legal status of the peace process that needs to be established. Consent by sovereign states can constitute a juridical basis for a peace process - as has been the case in much of the history of peacekeeping. There are limitations to this, however. For instance, a sovereign state cannot authorize a military force that it has invited onto its territory to commit acts which are otherwise deemed unlawful, such as grave breaches of human rights.

The question here is, in the absence of an actual peace agreement, what legal status is extended to the peace process by the informal nod of approval given by the parties to the Secretary-General's Settlement Plan? What is the status of an abuse by a UN official of this degree of trust? And how can that breach be considered a "violation" and not just an "interpretation" of the peace plan?

In addition to the consent of parties, an authorization by the Security Council creates perhaps the critical legal basis of a peace process. This is more true today than in the past, given the deployment of peace operations in internal conflicts without the consent of local parties. The Security Council is the closest equivalent to a political authority of the United Nations; its resolutions are binding and Member States are committed to accept and carry out those decisions under Article 25 of the Charter.

Therefore, violations of the Settlement Plan are violations of law. But, again, by what standard are infractions measured (as against "interpretations" of the plan)? In 1992, by one standard there were many Moroccan violations of the ceasefire. But by 1993, the UN redefined this standard such that the same acts were no longer deemed to be ceasefire violations.
What remedy can there be for the victim party when a state violates the will of the Security Council? There cannot be punitive measures. Even in the extreme case of enforcement action by the United Nations under Chapter VII of the Charter, the intent is not to punish the aggressor but to reverse the act of aggression.
Because of the feature of sovereignty, a state cannot be punished in the manner that an individual can be in a national jurisdiction or for international crimes. However, we do, now, accept a concept of state responsibility, which affects that sovereignty, and under which a state may incur financial obligations as compensation for its acts. Above all, the Security Council may choose to react to violations of its peace process, which it has the authority to do in a number of ways.

Naturally, abuses of the peace process have not been raised in a legal context. The principal court of appeal has been the fickled will of the Security Council. Internal investigative bodies are not independent of the executive of the Organization - as was illustrated by the response of the Office of Internal Oversight Services to the allegations levelled against MINURSO by one of my co-panelists here today. Although, when convenient, the use of internal administrative law was raised by the UN's Legal Office to prevent him addressing the Fourth Committee last year.

Consequently, a terrible fog has settled over the issues. Can we envisage a more responsive court of appeal?

3. A Diplomatic and Political Context

Ultimately, what is needed is a peace agreement signed by both parties with clear, explicit provisions. And this, perhaps, should be the objective of direct and open talks. If there is not commitment on paper, there is certainly not going to be agreement in the field.
But the signed document will not be enough. The experience of peace agreements in this decade has shown that as soon as the ink is dry, the interpretation by the parties of agreed provisions begins to diverge - partly because the situation on the ground changes on a daily basis, thus affecting the relevance of those provisions; and partly because purposefully vague terms were necessary to obtain agreement in the first place.

In the meantime, the UN as the broker that has to implement or guarantee the agreement, presumes that the parties share the same contractual culture by which it functions. And so, it develops a detailed plan of action without the parties, assuming that all signatories have the same understanding of the peace terms.

Since this is not the case, when a peacekeeping operation arrives in the field with a limited military force structure, it is fundamentally undermined because the consent of the parties on which it was relying has evaporated.
The problem with MINURSO was worse than this kind of misunderstanding; it was consciously manipulated. However, the answer to both may be the same.

What is required in addition to a peace agreement is a kind of political will cell - which some of you may know I have written about elsewhere in the Western Saharan and other contexts. ( For example, "The Space of Peace-Maintenance," Political Geography, Vol. 15, No. 3/4, March/April 1996, pp. 335-357).

This needs to be a permanently sitting body composed of the parties and regional and outside, interested and disinterested, states, that can make decisions on an on-going basis and interpret the peace agreement jointly and continuously, to avoid any possible divergence in the meaning of agreed terms.

This is, really, a kind of interim authority that can make political decisions affecting the ground situation, if necessary, on a daily basis. It would provide a strategic, operational and tactical link between the periodic decision-making of the Security Council and the actions of the parties in the field.

There have been other kinds of arrangements worth distinguishing:

In Cambodia, during the interim peace process, a Supreme National Council was established, composed of the four factions. But this served only as a forum for disagreement, because there was no genuine outside authority fostering and guaranteeing decisions.
The International Conference for the Former Yugoslavia is only a kind of diplomatic forum and has no pretence of guaranteeing results directly.
The "Friends of" groups for different countries can have an influence on conflicts, but they vary significantly in the degree of commitment of the membership. In the case of El Salvador, this was affected by the personal and direct role of the UN Secretary-General. These groups are ad hoc and there are not criteria for ensuring an effective model.
In its 'Near Abroad,' Russia has established Joint Control Commissions, composed of itself and the local parties in conflict. These are very effective but by no means impartial. They serve the interests of Russia and do not operate according to an objective legal standard.
Most interesting, in Namibia, a Joint Monitoring Commission composed of the parties and powerful states, combined diplomatic relations and military expertise to ensure clarity in implementation of the peace accords. But critically, the commitment of essential assets by the powerful - such as the intelligence capability of the United States - made the body effective

To create a legitimate and effective Joint Commission for Western Sahara, a framework needs to be carefully designed to ensure that the body does not suffer the pitfalls of some of these other models. This must be both a legitimate interim political authority and an effective court of appeal for the parties.

For this reason, the framework to be devised for the direct talks between the parties, that have been called for by the General Assembly, is a critically strategic factor. It must include the ingredients for it to become that Joint body. This raises a number of issues that need to be thought about, including: the process of formulation of the body; its legal status; its composition; a Code of Conduct for the behaviour of the parties that takes into account their past approaches to talks; the degree of commitment of and requirements for the effective participation of "guaranteeing states"; and the role of non-states within the body.

I do not have the time here to discuss these questions at length, but I can say something about the legal element that needs to be accounted for in any formula. How can this be done?

4. An Independent Judicial Component

There is a problem that has arisen elsewhere that we have to be careful of - and that is the contradiction that can develop between the pursuit of peace and the pursuit of justice. We see this, for instance, in how the International Tribunal for the Former Yugoslavia has become inconvenient for the peace process on the ground; and, conversely, the reluctance of the Implementation Force to arrest indicted suspects.

I do not think that we are faced with this dilemma at this stage of the process in Western Sahara. Rather, I think that addressing seriously the violations that have occurred in MINURSO and at UN headquarters to date may have a catalytic effect.

Quite separate and independent of a Joint politico-diplomatic body, we might consider the idea of a "Truth Commission" for Western Sahara. Such Commissions have addressed human rights violations in El Salvador and South Africa; one was a creation of the UN, the other of the post-apartheid government. We could adapt this concept to consider the abuses of the peace process in Western Sahara.
This might be a first step in a complete review and revision of MINURSO, and temper the easy option of termination and qualify any successive efforts.

We might call on two or three states to back such a body, or it could be an entirely non-governmental effort - for which there are precedents. In either case, there are certain considerations which would be critical to its success, such as the following:

As a non-punitive body, its aim would be only to clearly identify violations of the peace process. But as an independent entity, it would have the freedom to name individual names&emdash;the most difficult piece of information to handle otherwise. Under these circumstances, issues of diplomatic immunity would be irrelevant.
The independence and impartiality of the body would be critical for its integrity and for the impact, therefore, its findings could have. The body needs to be so constituted as to be able to point a finger. In this sense, it is not one of the Global Commissions tasked to pronounce with misty generalities on grand questions. (Although some members of past commissions may be helpful, and we can think of a list of names.) It is, fundamentally, a judicial inquiry.
Its composition, therefore, will be a key component of its effectiveness. Really, it should be a panel of distinguished jurists. Their national affiliation should not, but may be, relevant.
Organization and a support staff will require resources, and this problem will need to be confronted. Private sources of funding may be more flexible under the circumstances.
There will need to be some standard for evidence and a means for its submission to the Commission. There are lessons to be learnt from the Yugoslav Tribunal, which had to gather again evidence that had been initially provided to it.
Most significantly, there will need to be a careful and comprehensive investigation of events. This will require collation of quite a number of documents, both readily available and confidential. A number of interviews of participants in events need to be conducted. I think this critical investigative role could be played by some individuals here today.

There are a number of other organizational issues, such as: pertaining to the Commission's procedures; temporal issues regarding the speed of the process; and logistical issues, such as some centrality in the management of information and direction of investigation.

5. Conclusion

We have all been aware throughout the life of MINURSO that the resumption of hostilities has been a real threat. I cannot emphasize enough the importance of distinguishing lawful justifications for returning to armed conflict. When it comes to the mutual use of violence, who is right and who is wrong can be quickly confused. Outside support can be dictated by the party with the most developed propaganda.

Having truth on your side is not enough. That truth must be made plain and clear to all the world. Even if there is a rarefied right of national liberation movements to use force in the pursuit of self-determination, administering authorities have the compelling battle-cry of "terrorism" to justify oppression.

If war resumes in Western Sahara, fingers will point erratically towards right and wrong. Military effectiveness in the field can be undermined by failing to win over the international imagination. So, making a clear case in advance of any crisis must be the focal point of our work here - not just in the negative sense of justifying war, but to positively avoid the prospects of such war.
Thank you.

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