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Issue 4, Spring 2016

Western Sahara
Review
Revista del Sahara
Occidental

WESTERN SAHARA REVIEW

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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WESTERN SAHARA REVIEW

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 Minursos mandate. The secretarygenerals report bemoaned lack of progress in nine
years of negotiations, impediments to Minursos 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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WESTERN SAHARA REVIEW

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 peoples nationalist
aspirations against Moroccos
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
Moroccos irredentist claims to the
detriment of the Sahrawis legitimate
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rights. Western support for Moroccos


autonomy plan is no more than a wellconcocted subterfuge to legitimize
Moroccos 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 selfdetermination 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.
Spains swinging policy
As the ex-colonial power, Spains
responsibility in failing to decolonize
the territory is indisputable. Madrids
policy toward the dispute has been
constricted by its wish to maintain

WESTERN SAHARA REVIEW


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 SpanishMoroccan crisis (2001-03) under the
premiership of Jos 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
Moroccos and Mauritanias
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 Jos
Luis Rodrguez Zapatero and his
foreign minister Miguel Angel
Moratinos were the most proMoroccan, going against Spanish civil
societys 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 Jos Maria Aznar; Spain truly
fears Moroccos reaction should it
show too much support for the
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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. Frances 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 Moroccos 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

WESTERN SAHARA REVIEW


have an independent state that would
allegedly fall under Algerias
influence. Second, it fears a
referendum would destabilize the
kingdom, and bring down the proWestern monarchy to which France
has provided substantial economic,
political and military support. In fact,
France sought, partly successfully, to
offset the SADRs 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 Frances position toward
Western Sahara. The first two are
directly linked to Frances 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 Moroccos principal trading partner
and main investor with close to 70
percent of total foreign direct
investments in the kingdom.

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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 divideand-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 Moroccos
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 Moroccos
standing in US policy despite the
remarkable improvement in USAlgerian 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

WESTERN SAHARA REVIEW


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 Moroccos 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 Polisarios
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 administrations
position as far as the Moroccan
autonomy plan in the Sahara is
concerned. US-Moroccan relations
are so strong that the US backed away
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from an initial willingness in 2013 to


include the protection of human rights
in UN ceasefire monitor Minursos
mandate. This was likely due more to
the weight that Spain and France had
thrown against the proposal than to
Moroccos 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.

WESTERN SAHARA REVIEW

Spains 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 selfdetermination. The people of Africas
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 selfdetermination.
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 Spains 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 organizations
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
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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

WESTERN SAHARA REVIEW


south (themselves only decolonised in
recent decades), Spain abandoned its
colony. It did so through the faade 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 selfdetermination. (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
Spains 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 Spains 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
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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
Spains 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 selfdetermination, 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

WESTERN SAHARA REVIEW


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 selfgovernment 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
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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 laws basic obligations
are ones without effective compliance
mechanisms.)
Settling into criminality
Only months later, the Audencia
Nacionals 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 Spains 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 Saharas

WESTERN SAHARA REVIEW


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
Saharas 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 UNled 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
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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.

WESTERN SAHARA REVIEW


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. (Moroccos 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 selfdetermination of its people. In an
infamous 1975 interview (one can
readily find it on the internet), a
western television reporter asks
Moroccos 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 Hidalgos
monumental 2012 work, El Oasis de la
Memoria: Memoria Histrica y
Violaciones de Derechos en el Shara
Occidental.)
Even those familiar with the colonial
history of Spanish Sahara will
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welcome the courts 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 Spains 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 selfdetermination 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

WESTERN SAHARA REVIEW


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 laws progress is measured in
tentative half steps, the Audencia
Nacional decisions will prove to be a
great leap forward. That is because

13 | P a g e

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 laws innovation for the Sahrawi
people, 40 years on, continues.

WESTERN SAHARA REVIEW

Advancing self-determination over natural


resources
By Aisha Dennis*

n a key development for supporters


of the Sahrawi right to selfdetermination, 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 smallscale 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 womens 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.
14 | P a g e

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.

WESTERN SAHARA REVIEW


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
Moroccos 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 Commissions 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-selfgoverning 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.
15 | P a g e

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.

WESTERN SAHARA REVIEW


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 Majestys
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

16 | P a g e

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 WSCs
case.
*Aisha Dennis is a member of the legal
team at Leigh Day working on the case
for Western Sahara Campaign.

WESTERN SAHARA REVIEW

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.

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 Africas last colony.

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

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 MHamid 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

www.sahara-online.net/ (accessed: 8
February, 2016).

17 | P a g e

http://www.taragalte.org/?lang=en (accessed:
7 February, 2016).

WESTERN SAHARA REVIEW


Mustapha Sayed),3 which in 2005 was
included in the Unesco list of
Masterpieces of Oral and Intangible
Heritage of Humanity as part of
Moroccos 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.

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.

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

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
(Durn, 2013). The second Caravan
Culturelle pour la Paix (Cultural
Caravan for Peace)10 a mass transSaharan cultural convoy that involved
the touring of musicians and other
artists from different North-West
African countries, including Morocco,
Mauritania, Burkina Faso, Niger, and

Although they are located in southeast


Morocco, both MHamid 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/intangibleheritage/26arb_uk.htm (accessed: 7 February,
2016).
5
www.saharaculture.com/Default.aspx?tabid=408 (accessed:
7 February, 2016).
6
www.dakhla-festival.com/index_en.htm
(accessed: 7 February, 2016).

18 | P a g e

www.afrol.com/articles/37450 (accessed: 8
February, 2016).
8
www.eldiario.es/desalambre/Mohamed-VISahara-Marcha-Verde_0_449006013.html
(accessed: 8 February, 2016).
9
lematin.ma/journal/2015/la-3e-edition-de-lacaravane-de-la-marche-verte/234677.html
(accessed: 8 February, 2016).
10
www.culturalcaravanforpeace.org/?lang=en
(accessed: 7 February, 2016).

WESTERN SAHARA REVIEW


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,
Malis 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 Dsert (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).

19 | P a g e

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 Moroccanled 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 exSpanish 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).

WESTERN SAHARA REVIEW


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 Dsert 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 Moroccos
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 peaceabiding nation despite the numerous
20 | P a g e

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.
Durn, Lucy. 2013. POYI! Bamana jeli
music, Mali and the blues. Journal of
African Cultural Studies, 25 (2): 211246.
Robert F. Kennedy Human Rights;
Association Franaise dAmiti et de
Solidarit avec les Peuples dAfrique;
Collective of Sahrawi Human Rights
Defenders; Bureau des Droits de
lHomme au Sahara Occidental;
Fondation Danielle Mitterrand/France
Liberts; 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 Moroccos fourth periodic
report on the implementation of the
International Covenant on Economic,
Social and Cultural Rights.

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