MEMORANDUM ON THE QUESTION OF WESTERN SAHARA

June2018

I. BACKGROUND

1. The Sahrawi Arab Democratic Republic (SADR) is located in Northwest Africa and covers an area of 266,000 square kilometres. It is bordered by Morocco to the north, Algeria to the northeast and Mauritania to the East and South and has a 1,200-kilometre-long Atlantic Ocean coastline. The SADR was proclaimed on 27 February 1976. Itsprovisional capital is BirLehlou.

2. In the pre-colonial era, the Sahrawis lived as one independent community and developed their own socio-political organisations and cultural forms of expression that, over centuries, have constituted their distinctiveness as a peopleknown for being independent, tolerant, and freedom and peace-loving.

3. Western Sahara is the last African decolonisation case, and it has been on the agenda of the United Nationssince 1963 when the Territory, known then as Spanish Sahara, was placed on the UN list of Non-Self-Governing Territories under Chapter XI of the UN Charter. Placing Western Sahara on the list of those territories, whose peoples at that time were subjected to colonial and foreign domination, was indeed a recognition of the Sahrawi people as a colonised people and accordingly their inalienable right to self-determination and independence. For this reason, the UN General Assembly has consistently called for the exercise by the Sahrawi people of that right in accordance with General Assembly Resolution 1514 (XV) of 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples.

4. In the face of the delaying tactics employed by Spain, the colonial power, to hinder the decolonisation of the Territory, which the UN had called for repeatedly, the Sahrawis continued their peaceful resistance to the colonial presence. Although the first Sahrawi nationalist movement was brutally crushed by the colonial authorities on the 17th of June1970, it paved the way for the creation of the Frente POLISARIOon the 10th of May 1973 as a liberation movement with the declaredobjective to use armed struggle to achieve independence fromcolonialdomination.The movement immediately gained overwhelming support among the Sahrawis and was later recognised by the United Nations as the sole and legitimate representative of the Sahrawi people.

5. Despite the pressure brought to bearby the increasing armed resistance of the Frente POLISARIO and the UN’s successive calls forthe decolonisation of the Territory, it was not until August 1974 that Spain finallydeclared that it was prepared to organise a referendum on self-determination inWestern Sahara in early 1975. From 8 May to 14 June 1975, aUN fact-finding missionof the Committee of the 24 led by Ambassador of Cote d’Ivoire to the UN, Simon Ake, toured the region.In its report, the UN visiting mission underlinedthat there was a major agreement among the Sahrawi people on the issue of independence and on total opposition to the territorial claims of both Morocco andMauritania, and that the Frente POLISARIO appeared to be the dominantpolitical force in the Territory and enjoyed unprecedented support among theSahrawi people.

6. The decolonisation process of Western Sahara howeverwas interrupted violently when Morocco invaded and occupied parts of the Territory by force on 31 October 1975 in violation of its own obligations under the UN and OAU Charters and in complete disregard for the Advisory Opinion of the International Court of Justice (ICJ) issued on the 16thOctober 1975, whichunequivocallyaffirmedthat:

“The materials and information presented to it [the Court] do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.”

7. It is important to underline in this regard that Morocco’s move to invade Western Sahara was mainly driven by the expansionist ideology of the so-called “Greater Morocco” and the territorial claims that Morocco subsequently laid on all its neighbours based on fake historical claims. Advanced in the late 1950s by the Moroccan ultranationalist Istiqlal party, shortly after Morocco gained its independence in 1956, this ideology was immediately embraced by the Moroccan ruling monarchy as a central element of its domestic and regional policy. It asserted that the then Spanish Sahara, all of Mauritania, a large part of western Algeria, St. Louis ofSenegalas well as an important part of northern Mali (including Timbuktu) all belonged historically to Morocco. It is well known that it took Morocco nine years to recognise Mauritania as an independent country, and that it tried to occupy a part of the Algerian western desertby forcein 1963.

8. Morocco’s drastic move was also driven by a domestic legitimacy crisis since the rule of King Hassan II of Morocco was challenged by two coup d’état in July 1971 and August 1972. Although the king survived both attempts, the mounting discontent in the country, particularly within the Moroccan military, made the situation even more difficult for the monarchy. Apart from Morocco’s increased interest in the abundant natural resources of Western Sahara as well as the Cold War geopolitical game at the time, the monarchy’s dire need for an outlet for its legitimacy crisis and growing domestic problems was the real reason behind Morocco’s move to invade and occupy Western Sahara.

9. In line with General Assembly resolution 2625 (XXV), which stipulates that “no territorial acquisition resulting from the threat or use of force shall be recognised as legal”, the United Nations has never recognised the legality of Morocco’s annexation of parts of Western Sahara, which has also been consistent with the position of the OAU (currently AU) on this matter. Moreover, the legal opinion of the UN Under-Secretary for Legal Affairs of 2002 affirms clearly that Morocco does not exercise any sovereignty or administering power over Western Sahara. Similarly, the legal opinion issued in 2015 by the Office of the Legal Counsel and Directorate for Legal Affairs of the AU Commission  also underlined that: “Since Saharawi Republic (SADR) is a Member State of the African Union, all Member States of the African Union must bear in mind the principles and objectives of the African Union particularly on the need to defend the sovereignty and territorial independence of SADR.” The same opinion concluded that:“Morocco is not an administering Power over Western Sahara’s territory under Article 73 of the UN Charter. Morocco also does not have sovereignty over Western Sahara; therefore Western Sahara question remains a pending issue of decolonization and should therefore be resolved in accordance with UN General Assembly resolution 1514 (XV).”

10. More precisely, in its resolutions 34/37 of 21 November 1979 and 35/19 of 11 November 1980, the UN General Assembly deplored the aggravation of the situation resulting from “the continued occupation of Western Sahara by Morocco”. All this explains the fact that today there is no single country, regional or international organisation in the world that recognises Morocco claims of sovereignty and occupation of parts of Western Sahara. As the Secretary-General stated in paragraph 37 of his report of 19 April 2006“no Member State of the UN recognises Morocco’s sovereignty over Western Sahara”.

11. It is of significant importance to underline, however, thatin the late sixties and early seventies,Morocco had in effect recognised the right of the people of Western Sahara not only to self-determination but also to independence well before it embarked on its invasion and illegal occupation of the Territory in 1975.

12. The Moroccan delegate to the UN General Assembly’s Special Committee onDecolonisation (Committee of 24),DeyOuldSidi Baba, declared on 7 June 1966 that: “I ask for the independence of Western Sahara as soon as possible and this should be an authentic independence, hence we can get over the actual impasse”.  The Moroccan Minister of Foreign Affairs, Mohamed Cherkaoui, declared at the 21st Session of the UN General Assembly, held on 13 October 1966, that “Morocco supports a real independence for Western Sahara, putting the future of the region in the hands of its sons who in the context of liberty will decide freely on their self-determination.”

13. The late King Hassan II, King of Morocco, stated during a press conference on 30 July 1970 the following: “Instead of going on claiming the territory of the Sahara, I would make the specific request that a popular consultation takes place, assuring that the first result being the departure of the non-Africans and allowing the people of the Sahara to choose between life under the Moroccan aegis, under their own aegis, or under any other aegis”.  Moreover, during the meeting of the OAU Council of Ministers, held in Rabat, from 5 to 12 June 1972, Morocco worked actively for the adoption of resolution CM/Res. 272 (XIX), which called on Spain, the administering power of Western Sahara, to enable the people of this territory, “to exercise their right to self-determination and independence without delay and in conformity with the Charter of the United Nations”.



II. THE OAU MEDIATION AND SETTLEMENT EFFORTS

14. The solemn commitment to the total decolonisation of the African territories under foreign occupation on the basis of the inalienable right of colonial peoples to self-determination as well as the intangibility of borders existing on the achievement of national independence have always been the guiding principles for the OAU position and its successor, the African Union (AU),concerning the question of Western Sahara.

15. It was in this context that the OAU Council of Ministers, meeting in its Seventh Ordinary Session in Addis Ababa from 31 October to 4 November 1966, adopted resolution CM/Res. 82 (VII) on the Territories under Spanish Domination. Considering Article 2 of the OAU Charter, which laid down the eradication of all forms of colonialism from the continent as one of the main goals of the OAU, the Council of Ministers expressed its full support to all efforts aimed at the immediate and unconditional liberation of all African territories under Spanish domination (Ifni, Spanish Sahara, Equatorial Guinea and Fernando Po). It also appealed to Spain to initiate resolutely a process giving freedom and independence to all these regions, and to refrain from all steps that might create in them a situation jeopardising peace and security in Africa.

16. The same position was reaffirmed by the OAU Council of Ministers in its Nineteenth Ordinary Session, which was held in Rabat, Morocco, from 5 to 12 June 1972, in which the Council adopted resolution CM/Res. 272 (XIX) on Special Measures to be adopted on Decolonisation and the Struggle Against Apartheid and Racial Discrimination. Regarding Spanish Sahara, the Council expressed its solidarity with the people of the Sahara under Spanish domination and called once again on Spain to create a free and democratic atmosphere in which the people of that territory could exercise their right to self-determination and independence without delay in accordance with the UN Charter. It is of special importance to note that resolution CM/Res. 272 (XIX), which was adopted unanimously and with the positive vote of Morocco, endorsed the right of the people of Spanish Sahara not only to self-determination but also to independence. 

17. The huge costs incurred during the war made King Hassan II of Morocco realise the impossibility of a military victory in Western Sahara. In an attempt to halt the advance of the Sahrawi Liberation Army (SPLA) and the increasing diplomatic achievements made by the Sahrawi Republic (SADR) in Africa and elsewhere, King Hassan II was forced to contemplate, albeit for tactical reasons, the possibility of holding a self-determination referendum in Western Sahara as a way-out of the armed conflict.

III. THE AFRICAN COMMON POSITION ON THE ISSUE OF WESTERN SAHARA

18. As a result to the success of the Sahrawi military and diplomatic resistance against the invading armies, the OAU 15thSummit held in Khartoum, Sudan, in July 1978, constituted an Ad-Hoc Committee of Heads of State on Western Sahara to be chaired by the consecutive Presidentsin exercise of the OAU from 1978 to 1984 (date of the Moroccan official withdrawal from the OAU). This Committee held more than 10 Sessions between 1978 and 1983. It was afterwards renamed as the Implementation-Committee of Heads of State on Western Sahara.

19. At its 18th Ordinary Session held in Nairobi, Kenya, from 24 to 27 June 1981, the OAU Assembly of Heads of State and Government examined the report of the Secretary-General and the Reports of the Fifth and Sixth Sessions of the Ad-Hoc Committee of Heads of State on Western Sahara. It also noted the commitment made by King Hassan II of Morocco to accept the holding of a referendum in Western Sahara to enable the people of that territory to exercise their right to self-determination as well as his pledge to cooperate with the Ad-Hoc Committee. The OAU Assembly consequently adopted resolution AHR/Res. 103 (XVIII) on Western Sahara in which it decided to set up an Implementation Committee of Heads of State with full powers to work with the UN and to take all necessary measures to guarantee the exercise by the people of Western Sahara of self-determination through a general and free referendum.

20. Despite the early commitment undertaken by Morocco before the OAU in 1981 and its pledge to allow the referendum to take place and to respect its outcome, it immediately became evident that Morocco was not sincere in its intentions, and that it was only playing for time.Following the admission of the Sahrawi Republic (SADR) to the OAUinAugust 1981, the OAU Assembly adopted resolution AHG/Res. 104 (XIX)  on Western Sahara in June 1983. The resolution urged the parties to the conflict, the Kingdom of Morocco and the Frente POLISARIO, to undertake direct negotiations with a view to bringing about a ceasefire to create the necessary condition for a peaceful and fair referendum for self-determination of the people of Western Sahara, a referendum without any administrative or military constraints, under the auspices of the OAU and the UN. In fact, the OAU resolution AHG/Res. 104 (XIX) was instrumental in laying the foundations for the subsequent UN efforts aimed at decolonising Western Sahara.

IV. THE UN SETTLEMENT EFFORTS

21. The OAU resolution AHG/Res. 104 (XIX) was effectively instrumental in laying the foundations for the subsequent UN efforts aimed at decolonising Western Sahara. On 2 December 1985, the UN General Assembly adopted unanimously resolution 40/50  based on a draft that was introduced by the delegation of Senegal on behalf of African States. This resolution, which reflected the entire operative paragraphs of the OAU resolution AHG/Res. 104 (XIX), requested the two parties to the conflict to start (a) direct negotiations to reach (b) a ceasefire, and (c) to agree on the modalities of a free and fair referendum on self-determination for the people of Western Sahara.

22. In the framework of the General Assembly resolution 40/50, the OAU Chairman and the UN Secretary-General began, in 1986, a joint mediation aimed at obtaining acceptance by the two parties to the conflict of a settlement plan whose main aim was to enable the people of Western Sahara to exercise their inalienable right to self-determination and independence under conditions acceptable to them and, hence, to the international community. In this context, the UN and OAU jointly elaborated a Settlement Plan that was agreed to by the two parties,the Frente POLISARIO and Morocco, on 30 August 1988, and adopted by Security Council resolutions 658 (1990) and 690 (1991).

23. The plan provided for the entry into force of a ceasefire to be followed by “the holding of a referendum without military or administrative constraints to enable the people of Western Sahara, in the exercise of their right to self-determination, to choose between independence and integration with Morocco” (para. 1; S/21360 of 18 June 1990).To this end, the Security Council established the United Nations Mission for the Referendum in Western Sahara (MINURSO) that was deployed in the Territory to supervise a ceasefire, which came into effect on 6 September 1991, and hold a referendum for self-determination at a specified date not later than February 1992 in accordance with the timetable for implementation as approved by the Security Council resolution 690 (1991).

24. In September 1997, Morocco committed itself once again to the referendum on self-determination and to the options already agreed upon by the two parties, namely independence and integration, when it signed the Houston Accords, which were negotiated by the two parties under the auspices of former US Secretary of State, James Baker III, in his capacity as UN Secretary-General’s Personal Envoy for Western Sahara.However, Morocco persisted in its obstructionism that brought the whole referendum process to standstill when it declared publically its opposition to the UN Settlement Plan and its underpinning idea of holding a self-determination referendum for the Sahrawi people, which it had already accepted. In November 2002, the Moroccan King declared unilaterally that the referendum provided for under the UN Settlement Plan was “obsolete” because it would be unrealizable in practical terms.

25. To defend its position, Morocco argued—and still argues—that the referendum in Western Sahara was (is) practically unrealizable because of the existing “fundamental differences” on the eligibility criteria for voting in a census-based referendum. However, it is well known that the electoral body entitled to vote was clearly defined in the UN-OAU Settlement Plan and the successive arrangements, which Morocco had voluntarily and officially accepted. The fact remains that Morocco made the eligibility issue appear as the unsolvable obstacle to the whole process simply to hide its fear of going forward with a vote it was not sure to win.

26. There is also a widely circulated argument that the referendum in Western Sahara could not be held because it would lead to a “zero-sum” and “winner-takes-all” outcome. It is important to recall, however, that the two options of the referendum (independence and integration) were accepted by the two parties and endorsed by the UN Security Council. The fact that Morocco decided to backtrack on its commitments along the way for fear of losing the vote can never be a convincing argument to invalidate the referendum process altogether. Besides, the 1999 referendum in East Timor, which was based on “accept/reject” options, can also be described, within this logic, as a zero-sum game. Nevertheless, the “winner-takes-all” approach did not preclude the vote from taking place. In the end, the only winner was the East Timorese people who won back their inalienable right to self-determination when they were consulted and rejected the proposed special autonomy within Indonesia in a free, democratic and internationally supervised consultation. 

27. In reality, Morocco’s manoeuvring and subsequent change of heart was clearly due to its realisation that in any free, democratic and UN supervised referendum, the people of Western Sahara would clearly vote for independence. This is the undeniable fact that cannot be eclipsed by much talk about some technical and procedural issues. In August 2004, in an interview with PBS, James Baker III said that Morocco became more nervous every time the UN got closer to holding the referendum: “the closer we got, the more nervous I think the Moroccans got about whether they might not win the referendum”.

28. Following Morocco’s rejection of the UN-OAU Settlement Plan of 1991 and Baker Plan of 2003, the Security Council adopted resolution 1754 (2007), on 30 April 2007, in which it called upon both parties, the Frente POLISARIO and Morocco,“to enter into negotiations without preconditions in good faith with a view to achieving a just, lasting and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara”. 

29. In line with resolution 1754 and subsequent Security Council resolutions, four rounds of formal negotiations and nine rounds of informal talks were held between the two parties under the UN auspices, the last of which was conducted in New York on 11 March 2012. The negotiations however did not achieve any substantive progress due to Morocco’s insistence on a solution that is contrary to the genuine and free exercise by the Sahrawi people of their inalienable right to self-determination as called for in General Assembly and Security Council relevant resolutions.

30. After having rejected the successive UN peace plans and settlement efforts, Morocco is still unwilling to engage seriously in the UN-supervised negotiations whose fundamental goal is to reach a mutually acceptable political solution that will provide for the right of self-determination of the people of Western Sahara. In the meantime, it persists in its efforts aimed at undermining the credibility and the raison d’être of the UN Mission in Western Sahara, MINURSO, namely the holding of a free and fair referendum on self-determination in Western Sahara.

31. In March 2016, Morocco expelled the civilian component of MINURSO, drastically affecting the ability of the mission to carry out its functions. In August 2016, it also sought to change unilaterally the status quo in the Territory by constructing a road across its military wall of Shame and the buffer strip in the Guerguerat area in violation of the terms of the ceasefire of 1991 and the Military Agreement No 1 of 1997. In the face of UN inaction, theSaharawi Republic had to respond to this dangerous and provocative move, and exercise its legitimate sovereignty over this liberated area.

32. Following the announcement of his intention to work to relaunch the negotiation process between the two parties to the conflict with a new dynamic and a new spirit, in August 2017 the UN secretary-General appointed Mr Horst Köhler, former President of Germany, as his Personal Envoy for Western Sahara in replacement of Ambassador Christopher Ross (USA). The Frente POLISARIO immediately welcomed the appointment of Mr Köhler and reiterated its willingness to cooperate with him in his mission aiming at achieving a peaceful and lasting solution that provides for the self-determination of the people of Western Sahara. It had also responded constructively to his invitation as part of the round of consultations that he conducted with the two parties and the neighbouring countries, Algeria and Mauritania. 

V. THE AFRICAN UNION EFFORTS

33. The African Union (AU) maintained over the years the same position adopted by its predecessor, the OAU, in relation to the question of Western Saharain terms of reaffirming the inalienable right of the Sahrawi people to self-determination and the need for its implementation.

34. In its Plan of Action adopted at its Special Session on the Consideration and Resolution of Conflicts in Africa, held in Tripoli, Libya, on 31 August 2009, the AU Assembly pledged its support for the ongoing UN efforts to overcome the current impasse and for relevant UN Security Council resolutions on Western Sahara. It also called for the intensification of efforts towards the holding of a referendum to enable the Sahrawi people to freely decide over their future.

35. The AU Assembly, meeting in its 19th Ordinary Session, held in Addis Ababa on 15-16 July 2012, adopted the Report of the Peace and Security Council on its Activities and the State of Peace and Security in Africa. Regarding Western Sahara, the Assembly renewed the AU appeal to the Security Council for a more proactive approach to the conflict. In particular, it called on the Security Council to endeavour to create conditions that would enable the people of Western Sahara to exercise their right to self-determination in line with international legality and the relevant AU decisions.

36. In June 2014, in implementation of the relevant decisions of the AU policy organs, the Chairperson of the AU Commission appointed former President JoaquimChissano of Mozambique as Special Envoy for Western Sahara. He was entrusted with the task of undertaking consultations with the UN Security Council and the UN Secretariat on how best the AU can support international efforts to find a solution to the conflict based on international legality.

37. As an expression of the deep concern of the AU regarding the delay in the decolonisation of Western Sahara, the AU Peace and Security Council (PSC) took a decision on Western Sahara on 27 March 2015. The decision reaffirmed the AU’s commitment to engaging proactively in the search for a speedy and just solution of the conflict of Western Sahara, the last colony in Africa. To this end, it proposed practical steps including the reactivation of the Ad-HocCommittee of Heads of State and Government on Western Sahara; the establishment of an International Contact Group for Western Sahara and the regular review of the situation in the Territory. Furthermore, the decision urgedthe UN Security Council to take all necessary decisions to ensure progress in the search for a solution to the conflict in Western Sahara. It also called on the Council to provide MINURSO with a human rights mandate and to address the issue of the illegal exploitation of the Territory’s natural resources.

38. In June 2015, the AU Assembly adopted a decision  in which it called on the UN General Assembly to fix a date for the holding of the self-determination referendum for the people of Western Sahara and to protect the integrity of Western Sahara as a Non-Self-Governing Territory from any act that may undermine it. It also urged the Security Council to assume fully its responsibilities and to address effectively the issues of the respect for human rights and the illegal exploitation of the natural resources of the Territory. The same position was reiterated in the AU Summit held in 2016.

39. Morocco’s admission as an AU Member State in January 2017 after signing and ratifying the AU Constitutive Act was received with the expectation that it would contribute to finding a speedy and lasting solution to the decolonisation conflict in Western Sahara. However, Morocco persisted in its illegal military occupation of parts of the territory of the Sahrawi Republic (SADR). This represents a flagrant violation of the fundamental principles contained in the AU Constitutive Act including, inter alia, (b) respect for borders existing on achievement of independence, and (f)prohibition of the use of force or threat to use force against other AU Member States (article 4).

40. The 30th Ordinary Session of the AU Assembly, held in Addis Ababa, Ethiopia, on 28-29 January 2018, adopted a decision  in which it expressed its support for the relaunching of the negotiation process between the Sahrawi Republic (SADR) and Morocco with a view to reaching a durable solution consistent with the letter and spirit of the relevant OAU/AU decisions and UN resolutions. The Assembly also reiterated its call on the two Member States to engage, without preconditions, in direct and serious talks facilitated by the AU and the UN for the holding of a free and fair referendum for the people of Western Sahara. The Assembly further requested Morocco, as an AU Member State, to allow the AU Observer Mission to return to Western Sahara as well as to allow an independent monitoring of human rights in the Territory.

41. Morocco however persisted in its defiance of AU decisions and its incessant attempts to deliberately neutralise the AU significant contribution to the peace process in Africa’s last colony. To date, it remains adamantly opposed to any involvement by the AU in the peace process in Western Sahara and to the return of AU Observer Mission to the Territory, which is a reminder of the statement made by the Moroccan Ambassador at the UN on 30 April 2015when he described the AU involvement as “toxic”. As confirmed by the UN Secretary-General in his latest report submitted to the Security Council on 29 March 2018, Morocco had officially informed the UN of its “categorical opposition to any involvement of the African Union in the political process” in Western Sahara. The UN Secretary-General also underscored in his report that Morocco did not allow the African Union Observer Mission to return to the Territory and resume its collaboration with MINURSO.

42. It is however significant to underscore that Morocco’s position regarding the involvement of the AU in the question of Western Sahara is utterly unfounded on legal and factual grounds. Regarding the facts, Morocco officially acceptedthe settlement proposals in 1988, which provided for the holding of the referendum under the supervision oftheUNin cooperation with theOAU. For this reason, theAUis still representedon the ground as part of MINURSO, theUN missionin Western Sahara. Moreover, Morocco had never opposedthe resolutionsof the Security Council calling for the referendum to be organised and supervised by the UN in cooperation with the OAU.

43. On legal grounds,the AU (as was the case of the OAU)is afull partnerof the UN inthe implementationof the UN-OAU Settlement Planaccepted byMorocco itselfin 1988, and it remainsa co-guarantor ofthisplan in partnership with the UN.Moreover, the AU isa regional organisationthat plays akey rolein maintainingpeace andsecurity on the continentin accordance withtheUN Charter, which envisions a critical role for regional organisations in maintaining international peace and security (Chapter VIII). In particular, Article 54 of UN Charter states that the Council should “at all times be kept fully informed of activities undertaken or in contemplation” by regional organisations “for the maintenance of international peace and security”.

44. Furthermore, in discharging its responsibility for peace and security in Africa consistent with the Constitutive Act and the UN Charter, the AU cooperates very closely with the UN Security Council in all matters related to peace and security on the continent. It is in this context that the AU has been acting regarding Western Sahara, and therefore Morocco has no legal basis to oppose the involvement of the AU in this issue.

45. The Moroccanopposition to anyinvolvementby theAUin thepeaceful settlement of theconflict in WesternSaharais therefore due toa politically motivated positionwithout anylegal and factual basis. However, for ulterior motives, Morocco persists in its attempts to undermine the AU-UN cooperation in the case of Western Sahara, while regrettably counting on the uncompromising support of France as a permanent member of the Security Council. 

 

VI. HUMAN RIGHTS VIOLATIONS AND PLUNDER OF THE NATURAL RESOURCES OF THE TERRITORY

46. For the past 27 years, Morocco has not only obstructed the UN-approved referendum on self-determination and the UN-sponsored negotiations between the two parties to the conflict. It has also been engaged in sustained annexationist policies to alter the status quo in the territories of the SADR under its illegal military occupation and over which the UN does not recognise any Moroccan sovereignty or administering jurisdiction. These include, among other things, reinforcing Morocco’s military presence, and holding elections and organising conferences, such as Crans Montana Forum, in the occupied territories of Western Sahara; and transferring thousands of Moroccan settlers to the Territory to change the latter’s demographic nature and administrative configuration.

47. In this regard, ever since its occupation of Western Sahara on 31 October 1975, Morocco has been engaged in massive violations of human rights of Sahrawi civilians in the occupied parts of the Territory. Similar to the repressive and discriminatory policies pursued by the Apartheid regime in South Africa, Morocco has adopted a systematic, chauvinistic and genocidal policy in the Sahrawi occupied territories whose aim is not only to occupy the land by force but also to exterminate its people by all means.The human rights violations perpetrated by the Moroccan authorities involve the disappearance of Sahrawi human rights activists, torture of prisoners of conscience, arbitrary detention, police brutality, intimidation and extrajudicial executions. The entire occupied territories continue to be under a military siege and a total media blackout, whilst Moroccan authorities deny access to NGOs, international media and observers. These continued human rights violations have been documented by many international and African human rights organisations and highlighted by the Secretary-General in his reports on Western Sahara.

48. Concerned about the human rights situation in the occupied territories of the SADR, the AU Executive Council, meeting in its 20th Ordinary Session, held in Addis Ababa from 23 to 27 January 2012, adopted decision EX.CL/Dec.689(XX) on the Twenty Ninth, Thirtieth and Thirty First Activity Reports of the African Commission on Human and Peoples’ Rights (ACHPR). Regarding the situation in Western Sahara, the Executive Council requested the ACHPR to carry out a mission to the occupied territory of the Sahrawi Republic (SADR) with a view to investigate human rights violations and to report to the next Ordinary Session of the Executive Council in January 2013.

49. In the face of Morocco’s reluctance to allow the ACHPR to visit the occupied territories of the SADR, the ACHPR mission was able to visit only the Sahrawi refugee camps near Tindouf in Southwestern Algeria and part of the SADR liberated territory from 24 to 28 September 2012. In its report (EX.CL/796(XXIII)) submitted to the Executive Council at its 23rd Ordinary Session, the ACHPR recommended that the African Union should place the issue of the self-determination of Western Sahara as one of its priority agenda items and spur international efforts towards resolving the issue speedily and equitably in order that the aspirations of the Sahrawi people could be realized. It further urged the AU to call on and engage with the UN Security Council for the inclusion of the monitoring of human rights violations in the Occupied Territory in the mandate of MINURSO.

50. The Sahrawi authoritiesrepeatedlyurged the Security Council to establish a human rights component within the mandate of MINURSO with a view to protecting, monitoringand reporting on the human rights situation of the Sahrawi people as long as the conflict remains unresolved.It particularlyinsisted that only a permanent, in situ and expert human rights monitoring capacity within MINURSO would allow for quick response to emerging situations on the ground, and facilitate direct reporting to the UN membership consistent with the Mission’s obligations under the UN Charter. However, due to the objections of France, the Security Council has not been able to adopt any concrete measures to improve transparency and ensure that it is better informed of the human rights situation on the ground in Western Sahara.

51. Morocco also persists in exploiting illegally and massively the natural resources of Western Sahara often in complicity with foreign entities and in violation of the permanent sovereignty of the Sahrawi people over their natural resources.It is significant to underline that the AU legal opinion of 2015 made it clear that the natural resources of Western Sahara are owned by the Sahrawi people and that Morocco has no right to explore and exploit any natural resources, renewable and non-renewable, located in the occupied territories of Western Sahara or to enter into agreements/contracts with third parties concerning these resources.

52. It is also worth noting the landmark judgement delivered by the EU Court of Justice in December 2016 in which it ruled that, according to the principle of self-determination, the EU and the Kingdom of Morocco could not include, either de jure or de facto, Western Sahara in their trade relations without the prior consent of the Sahrawi people.On 27 February 2018, the same Court handed down another judgement that establishes unequivocally that Western Sahara is not part of Morocco, and that agreements concluded between the EU and Morocco cannot be applicable to the territory of Western Sahara and to the waters adjacent thereto.

53. Morocco still maintains its 2700 km long Wall of Shame, which is infested with more than 7 million antipersonnel and anti-vehicle mines, although the UN-supervised ceasefire in Western Sahara had come into effect over two decades ago. The destructive force of landmines buried along the wall affects Sahrawi civilians on both sides who often suffer injuries, amputations and death from accidents related to landmines and unexploded ordnance.

54. In addition, according to the U.S. Department of State (INCSR 2017, Volume 1), Morocco remains the world’s largest producer and exporter of cannabis, where tons of Moroccan drugs are being smuggled everyday into the region and beyond,becoming a major source of funding for transnational terrorist groups operating in the Sahel-Sahara. In particular, the well-documented involvement of the Moroccan military in drug and human trafficking, involving fellow Africans, across the Moroccan Wall of Shame represents a growing threat to regional peace and security.

VII. THE SAHRAWI REPUBLIC (SADR)

55. Despite the hardships of refuge and occupation, the Sahrawi Republic (SADR), which is an AU founding Member State, has built a modern society that cherishes and promotes the values of social justice, democracy, gender equality, tolerance and rule of law. The Sahrawi people can rightly pride themselves on having built an egalitarian society where every citizen can participate fully in the public affairs and where women play a fundamental role in all aspects of political, social and economic life.

56. The Sahrawi liberated territories, over which the SADR exercises its full sovereignty, have assumed an increasing importance in the overall policies of the SADR Governmentthat has been deploying great efforts to provide the necessary infrastructure and security conditions for the Sahrawi population living in those territories.

57. The SADR has also been undertaking consistent efforts in coordination with friendly countries and neighbours to deter and prevent any illegal activities related to internationally organised crime and other security threats. Given the long experience of its military forces, the SADR has actively participated in the consolidation and effectiveness of regional security structures in conformity with its obligations as an AU Member State.

58. The SADR has also been consolidating its relations with a large number of friendly countries in the world, mainly in Africa, the Caribbean, Latin America, Asia and South East Pacific region.

59. After ending the Moroccan occupation of the remaining parts of its national territory, the SADR intends to strengthen and diversify its relations with all countries of the African Union and other members of the international community based on the objectives and purposes of both the AU Constitutive Act and the UN Charter. In particular, the SADR will make it as one of its utmost priorities to play a positive role in strengthening the AU and furthering its cultural, political and economic ties with all African countries and peoples. Likewise, the SADR intends to be an active member of the Maghreb region.

60. After recovering control over its usurped natural resources, the SADR is equally desirous of establishing multifaceted ties of cooperation and exchange with all its neighbours without exception based on mutual respect, good neighbourhood and cooperation for greater regional and continental integration.

VIII. THE LATEST DEVELOPMENTS

61. On 27 April 2018, the UN Security Council adopted its resolution 2414 (2018) by which it extended the mandate of the United Nations Mission for the Referendum in Western Sahara (MINURSO) for a period of six months. The short renewal period and the emphasis laid by the Security Council on the resumption of negotiations between the two parties without preconditions and in good faith represent a clear and strong message to Morocco, which has always subjected any engagement in the negotiations to preconditions, and has continuously put obstacles to the UN peace process.

62. The SADR authorities remain hopeful that the Security Council this time will render its full support to the Personal Envoy of the UN Secretary-General, Mr Horst Köhler, in his efforts to relaunch and move the negotiation process toward its ultimate objective, namely the achievement of a peaceful, just and lasting solution to the decolonisation question of Western Sahara in accordance with relevant UN and OAU/AU resolutions.

63. It is worth noting that UN Security Council resolution 2414 (2018) was preceded by an unprecedented media and diplomatic campaign of misinformation carried out by Morocco, which went as far as threatening to take military action to forcibly annex the Liberated Territories of the Sahrawi Republic (SADR). It became clear however that Morocco’s frenzied campaign was not more than a smokescreen designed deliberately to divert the attention of the Security Council away from the real issues that underlie the current stalemate caused by Morocco itself. Furthermore, Morocco’s baseless allegations regarding UN-supervised ceasefire and the situation on the ground in Western Sahara were refuted on two occasions by the United Nations itself through the Spokesman of the UN Secretary-General.

64. The escalation of Morocco’s aggressive actions and rhetoric also took place against the backdrop of the strongly expressed intention of the UN Secretary-General and his Personal Envoy for Western Sahara to relaunch the negotiation process between the two parties as called for by the Security Council. The strong position expressed recently by the AU as regards the urgent need for direct negotiations between the Sahrawi Republic (SADR) and Morocco has also dealt a major blow to Morocco’s attempts to neutralise Africa’s great contribution to peace efforts in its last colony. Morocco’s escalation is also due to the setbacks that it has suffered at the hands of the European Court of Justice that recently ruled against Morocco’s illegal plunder of the natural resources of Western Sahara as well as the South African Court, which confirmed the illegality of Morocco’s export and transfer of Sahrawi phosphates.

65. Morocco escalation and sable-rattling, in total, was only another episode of its blackmail policy and defiant behaviour, which unfortunately has not yet been met by the necessary and robust response from the Security Council. This includes, inter alia, its opposition to human rights monitoring within MINURSO mandate, expelling of the mission civilian component including the AU Observer Mission, trying to change the status quo in the Guerguerat area, imposing that MINURSO vehicles bear Moroccan number plates, affixing stamps on the passports of MINURSO staff members upon entry to and exit from Western Sahara, and repeatedly defying the authority of MINURSO in its mission area. 

66. Following the adoption of Security Council resolution 2414 (2018) nothing seems to have changed. What is of great concern is that Morocco has stepped up its efforts to undermine the ceasefire agreement and the Military Agreement No 1, which are the two fundamental pillars sustaining the UN peace process and maintaining the status quo in the Territory pending the final solution of the conflict. Morocco also persists in its sabre-rattling manifest in its actions on the ground as well as in the bellicose statements of Moroccan officials with the obvious aim of creating a climate not conducive to the resumption of direct negotiations between the two parties as called for by the Security Council.

67. Because of the lack of a strong response from the United Nations and the international community regarding the annexationist policies of Morocco in Western Sahara, the occupying power has continued behaving with impunity and is trying to extend by force its illegal annexation to the Liberated Territories of the SADR. This situation clearly flies in the face of both international legality and UN doctrine regarding decolonisation, and might ultimately undermine the UN credibility and authority in dealing with the question of Western Sahara. The occupying power also continues to leave no stone unturned to undermine the inalienable right of the Sahrawi people to self-determination and independence and, to that end, it has resorted to persistent manipulation, disinformation, blackmailing, intimidation and warmongering, among other things.

IX. CONCLUSIONS

68. For the United Nations and the African Union, Western Sahara remains a colonial case to which the UN doctrine and practice relating to decolonisation must be applicable. This means that the Sahrawi people have an inalienable right to self-determination and independence.

69. Morocco itself had already recognised the right of the people of Western Sahara not only to self-determination but also to independence before it embarked on itsaggression,invasion and occupation of Western Sahara in 1975. It has also accepted the UN-OAU Settlement Plan based on the option of independence of Western Sahara. Morocco’s posterior volte-face and its continued military occupation and illegal annexation of parts of the Territory of the SADR represent a flagrant violation of the fundamental principles contained in the AU Constitutive Act including, inter alia, (b) respect for borders existing on achievement of independence, and (f)prohibition of the use of force or threat to use force against other AU Member States (Article 4).

70. Morocco’s prolonged occupation of parts of the SADR has also led not only to the enduring violation of two fundament principles underpinning the existing international system, namely peoples’ right to self-determination and the inadmissibility of the acquisition of territory by force, but also to continuing and growing threats to regional peace and security. The UN and the international community at large should therefore assume their responsibilities and send Morocco a strong message that peoples’ inalienable right to self-determination and independence cannot be indefinitely held hostage to the intransigence of an occupying power that has repeatedly failed to honour its international commitments.

71. It is also imperative that the African Union and its concerned policy organs hold Morocco accountable for its enduring violation of AU Constitutive Act as well as its disregard for relevant AU resolutions on Western Sahara. The AU should also use its authority to urge Morocco to engage seriously and constructively in direct negotiations with the SADR in line with relevant AU and UN resolutions, and to desist from taking any action that may increase tension in the region and threaten its stability and security.

72. As the successor to the OAU that was the initiator of the peace process in Western Sahara, the AU remains a full partner of the UN and co-guarantor of the implementation of the UN-OAU Settlement Plan. Its contributions to the decolonisation process of Western Sahara, the last colonial case in Africa, should be recognised and implemented including its call for fixing a date for the holding of the self-determination referendum for the people of Western Sahara.

73. It is therefore vital that the UN General Assembly set a date for the holding of the self-determination referendum for the people of Western Sahara. Any delay in enabling the Sahrawi people to exercise their inalienable right to self-determination and independence will only complicate the situation on the ground and risk further destabilising an already volatile situation in the region.

74. The completion of the decolonisation of Western Sahara by means of ensuring the inalienable right of the Sahrawi people to self-determination and independence will definitely give an additional impetus to the ongoing efforts aiming at confronting the challenges of peace and security in the continent. It will also be a significant springboard for the achievement of the long-sought regional and continental integration, which is indispensable for a united, peaceful and prosperous Africa.