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ADALA UK TAKES PART IN HIGH-LEVEL SIDE-EVENT ON WESTERN SAHARA DURING 34TH SESSION OF UN HUMAN RIGHTS COUNCIL IN GENEVA

The first-ever side-event on Western Sahara was hosted by the Support Group on Western Sahara on Wednesday 1st March 2017 during the 34th Session of the UN Human Rights Council. The meeting was moderated by Mr Gianfranco Fattorini of the American Association of Jurists (AAJ).

dsc_0714The Namibian Ambassador, Sabine Böhlke-Müller, opened the proceedings and welcomed the attendees. The ambassador noted that UN Secretary-General Antonio Guterres had stated in his address to the Human Rights Council opening the 34th Session that prevention of human rights abuses should be a priority for the Council. Yet some 50 years after the General Assembly recognised the need for a referendum on self-determination in Western Sahara, and some 25 years after the setting up of MINURSO, the people of Western Sahara have yet to make use of their right to self-determination. Human rights violations in Western Sahara are systematic and widespread. In order to do something about this situation, the representatives of 14 countries at the UN in Geneva set up the Support Group on Western Sahara, joined by the AAJ. The high-level side-event was the first such public event held on Western Sahara. The ambassador reiterated Namibia’s steadfast support for the implementation of all UN resolutions on Western Sahara.

The Moderator, Mr Fattorini, then presented a brief historical sketch of the evolution of the Western Sahara case for self-determination.

In his remarks, the Nicaraguan Ambassador, Hernan Roman, pointed out that Western Sahara had been a preoccupation of the Sandinista Front since before the triumph of the revolution in 1979. One of the first acts of the Sandinista Government was to recognise the status of the Polisario Front and of the SADR (Saharawi Arab Democratic Republic). The latter has had an embassy in the Nicaraguan capital since 2010. Nicaragua has supported and advocated for the right to self-determination of Western Sahara for many years. In 2016 a Pacific Regional Seminar was held to accelerate action on the matter. Nicaragua is now a core member of the Support Group on Western Sahara in Geneva, and is committed to this matter in accordance with the principles of the UN Charter and the Constitution of Nicaragua.

The ambassador stated that the Sahrawi people have a fundamental right to determine their own future. Self-determination is the cornerstone of the full enjoyment of all human rights. The Sahrawi people have to date been denied the exercise of this inalienable right. This has hindered a full decolonisation process. The will of the Sahrawi people must be reflected in a process that unfolds in accordance with UN resolutions. The idea of a referendum was already a compromise in the 1988 settlement. A date must be determined urgently for the holding of a UN-mandated referendum. The Secretary-General, the Human Rights Council and the High Commissioner for Human Rights must closely monitor the human rights situation and exploitation of natural resources there. The High Commissioner for Human Rights must report on this. It is not only an African affair, but a question of justice. Nicaragua remains in solidarity with the Polisario Front.

Ambassador Da Silva of Timor-Leste stated that his government and state continue to be very supportive of the case of Western Sahara. No problem can be solved from the same level of consciousness that created it. It is necessary to make an appeal for perceptions and the way we look at the problem to change. We recognise that there is a problem. We need to find a solution. We share a similar history. Timor-Leste will continue to raise this question. The Sahrawi people must not lose hope and must not pay attention to those who say that they cannot.

Former Mozambican President Chissano, AU Special Envoy for Western Sahara, stated that he represents the African Union at the event, and that what he will say reflects the position of the AU. It is regrettable that we are talking about the protection of the human rights of a people denied them for many years, especially the right to self-determination. There have been efforts by the UN to resolve the situation since the mid-1970s. In 1975 the International Court of Justice (ICJ) found no legal ties between Western Sahara and its neighbours. This was followed by a 16-year long armed struggle by the armed forces of the Polisario Front. In August 1988 the parties to the conflict accepted settlement proposals developed by the UN and then OAU on the basis of a peace plan adopted at the 19th Ordinary Session of the Assembly of African Heads of State and Government. The objective was to enable the people of Western Sahara to exercise their inalienable right to self-determination and independence. On 29 April 1991, UNSC Resolution 690/91 established MINURSO and mandated the organisation and holding of a referendum in close cooperation with the then OAU. The resolution is quite clear on this. The ceasefire holds, but there has been no progress with the organisation of a referendum, and no progress whatsoever in the peace process. This is an unfinished decolonisation process that is of utmost concern to the AU. We must therefore remain engaged in our diplomatic and political efforts. Over the last four decades there have been numerous calls to the international community and efforts initiated to resolve the Sahrawi crisis, including the appointment in June 2014 of the AU Special Envoy. The AU is the guarantor of the peace process.

With the expulsion of the civilian component from Western Sahara, including the AU delegation, only 24 officials could return to the field. As of now, the observer delegation of the AU has still not been allowed by Morocco to return and resume cooperation with MINURSO. One cannot avoid mentioning that within the UNSC deep divisions exist as to how to resolve this situation. Morocco was behind the August 2016 flare-up of tension in the narrow buffer strip, with Moroccan forces crossing the berm in contravention of the ceasefire agreement. This prompted the Polisario military deployment. The Moroccan action was condemned by the AU, but the UNSC failed to address it as it should have. Morocco’s application for AU membership was accepted in January 2017. Morocco ratified the Constitutive Act of the AU. It is to be hoped that Morocco’s membership will facilitate the resolution of the situation in a manner consistent with the UN Charter and AU decisions. These organisations must engage the parties for a speedy resolution.

Over the past few years the violations of the human rights of the Sahrawi people have continued, and have been reported on and denounced by numerous stakeholders. These violations include restrictions of the rights to freedom of expression, association and assembly. Morocco has tightened restrictions on human rights groups. Many of those in Moroccan prisons serve long sentences for alleged political offences. Morocco has prevented gatherings supporting self-determination in the occupied territory. Activists face a particular pattern of harassment, political imprisonment and judicial abuse. Many are arrested violently and held incommunicado in secret detention centres or police stations. The repression of Sahrawi culture manifests in discrimination in the education and employment fields. The 19 April 2016 report of the UN Secretary-General on MINURSO urged further international engagement and stressed the need for independent, impartial and sustained monitoring of the human rights situation in Western Sahara and in the camps. The ongoing human rights violations indicate the total inadequacy of the UNSC approach. This led the AU, Polisario, and the African Commission on Human and People’s Rights to call on the UN to empower MINURSO with a human rights monitoring mandate. Of all UN peacekeeping missions, MINURSO is the only one without such a mandate. The Sahrawi refugees have been living in the south-western part of the Algerian desert for 41 years now. The crisis of the Sahrawi refugees is virtually unknown to the world.

The ruling of the European Court of Justice of 21 December 2016 stated that EU trade agreements with Morocco cannot apply to the territory of Western Sahara. There is a need for full respect of this verdict, which will make a major contribution to efforts to stop the illegal exploitation of the natural resources of Western Sahara. It is a matter of deep concern that four decades after the onset of the conflict, all efforts aimed at finding a solution have failed to achieve the expected results. The people of the territory are not able to exercise their right to self-determination. The UNSC must fully assume responsibility with a view to achieving a fair, lasting and mutually acceptable political situation which will provide for the self-determination of the people of Western Sahara. A timetable for the referendum must be developed. Any lasting human rights framework and effective humanitarian action passes through giving the people of Western Sahara the opportunity of freely choosing their destiny. If human rights abuses are to be curbed, the UNSC must provide MINURSO in April this year with a human rights monitoring mandate. Other relevant UN agencies such the OHCHR should be called upon to play a meaningful role in providing technical assistance to relevant human rights stakeholders. I commend the establishment of the Geneva Support Group.

The SADR Minister for Europe, Mohamed Sidati, warmly thanked the Geneva Support Group for organising the side-event. Western Sahara is a clear question of decolonisation. The ECJ ruling of December 2016 is a welcome ruling that affirmed that Western Sahara is not part of Morocco, based on long-standing UN resolutions, the ICJ opinion of 1975, and universally accepted principles of international law. Only Morocco contests this fact. Polisario is looking forward to diplomatic progress. A problem at the AU level is that already ships have left Western Sahara for EU ports, a blatant violation of international law. Each EU member state and institution must ensure that the ECJ ruling is respected. Failure violates EU law, UN resolutions, customary international law, international human rights law and international humanitarian law. France and Spain will try to prevent implementation. Yet the ruling has reaffirmed the right to self-determination, reaffirmed the Polisario Front as sole representative of the Sahrawi people, and has made clear that agreements between the EU and Morocco do not apply to Western Sahara.

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As a state member of the AU, the SADR took note of Morocco joining the AU. It is our hope that this joining of the AU by Morocco will allow for a quicker resolution. Morocco must abide by the AU Constitutive Act as well as by all AU decisions in this regard. We can no longer abide the continued occupation of Western Sahara or the illegal exploitation of its natural resources. We must all remain vigilant to ensure that the issue of Western Sahara is not marginalised by the international community. Moroccan engagement with the AU process will be a test of whether or not it has misled the international community in ratifying the AU Constitutive Act. We must redouble our efforts to ensure respect for fundamental principles of customary international law relating to the inalienable right of the Sahrawi people to self-determination and independence. We are witnessing a stalemate because of Morocco’s attempts to impose a fait accompli by violating the ceasefire. We need to act to prevent the situation from becoming worse. Morocco says it has withdrawn its forces behind the berm again. We should not accept this game.

How do we make progress with the peace process? We should insist that the UN and AU take responsibility. The UN Secretary-General and UNSC have the prime responsibility. We call on the international community to urge Morocco to stop violating the rights of the Sahrawi people, particularly their practice of arrest, detention, torture and illegal incursions.

Mr Alibuia Fadel (representative of the Sahrawi National Commission for Human Rights) stated that the Sahrawi National Commission for Human Rights came into being through the civil society desire to protect human rights in Western Sahara. It was created by the Sahrawi state in 2014. The number of violations of human rights by Morocco could lead to a very long process. Given the impact of these violations on the inhabitants of the camps, can we even speak of human rights under an illegal and brutal occupation? Is colonialism not a total negation of all rights? Since 1975 we have seen the systematic violation of the rights of the people of Western Sahara. Experts call these crimes against humanity. The invasion of Sahrawi territory on 31 October was a flagrant and blatant violation of the UN Charter and of the right of the Sahrawi people to their land.

The first target of Morocco was the Bedouin way of life of the people. The Moroccan Army poisoned and destroyed wells and watering holes. People were forced to settle in towns. Many fled to Algeria. The wealth was plundered by Morocco. Survivors speak of the extermination of herds of camel and sheep. By 1976 most of the cattle rearing families had been forced to flee white phosphorus bombs. The Moroccan Army built the largest military wall on Earth. It divides the people into two parts, obstructs waterways and rivers. The next step was working to change the demographics by flooding the area with 400 000 Moroccan settlers in violation of the Geneva Conventions. Then came the prevention of the teaching and use of Spanish in schools since 1977. This has posed many difficulties for students.

The human rights of the Sahrawi people that have been violated include the right to protection against all forms of discrimination, freedom of belief, demonstration and association. War crimes and crimes against humanity include forced disappearances and systematic torture. The Moroccan Army committed numerous atrocities, including summary, arbitrary and massive executions of Bedouin families. In 2010 the Moroccan Human Rights Commission recognised the responsibility of the Moroccan state for the deaths of 352 Sahrawis in secret prisons. No other step had been taken to recognise this responsibility. The families of victims were never informed. These practices have not stopped since 1975.

Demonstrators have been arrested and tortured, taken outside the cities, and the women beaten and raped, and then left unconscious 40km or 50 km outside the city. Some have been executed. Moroccan legislation severely punishes any breach of the territorial integrity of the kingdom. Morocco considers Western Sahara as belonging to the kingdom. Any peaceful demonstration is violently put down. Sahrawi human rights organisations are deemed illegal. Prisoners are deprived of the right to a lawyer and a fair trial. The people are deprived of the right to form associations. The plundering and illegal exploitation of natural resources is blatant. The income from phosphate and fishing amounts to more than US$1 billion per year, and it all goes to Morocco and to the companies involved. This is tens of times more money than all of the humanitarian aid received by the refugees. Sahrawi fishermen are all out of work. There is even looting of the sand sold on to the Canary Islands. The Sahrawi National Commission for Human Rights appeals to the international community to defend respect for all human rights in Western Sahara. And it appeals to the new UN Secretary-General to ensure that the agreement is finally implemented.

Ms Madalyn Wasilczuk from Cornell University Law School stated that the Human Rights Clinic trains law students based on real human rights cases. Western Sahara’s right to self-determination could not be clearer. Legally there is no question whatsoever. The UN and powerful countries have not intervened to make these rights a reality. This calls into question the international legal regime. Morocco’s tactic is to use force and misinformation. It refuses to allow international observers into the country. Morocco ignores the fact that it illegally occupies the territory. Not a single state recognises Moroccan sovereignty. The right to self-determination comes first for a reason. The Moroccan autonomy initiative calls for regionalisation, not a full referendum. But the referendum is a condition of the ceasefire Morocco agreed to in 1991. There have been violations of cultural and economic rights, freedom of movement, association and speech. We seek to raise the profiles of these.

We have done a legal analysis of the wall. This receives little attention from UN bodies. Everyone is focused on the Palestine wall. The wall built by Morocco is over 2500 kilometres long, the longest operational military barrier in the world. It is bolstered by seven million landmines. There were 2171 “accidents” along the wall between its construction and 2009, and 87 more since then. It is patrolled by 120 000 troops. It has five crossing points, four for MINURSO staff, one for civilians and none for Sahrawis. It is longer, older and more militarised than the Israeli one. While there are ICJ rulings on the Israeli wall, Morocco continues to fortify theirs. The human rights violations are, however, more severe, including the complete barring of Sahrawis from their land and the moving in of settlers.


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