Morocco and Sahrawi in African International Law: Any comparisons?

17Aug 2017
The Guardian Reporter
The Guardian
Commentary
Morocco and Sahrawi in African International Law: Any comparisons?

I shockingly read a response from  Brahim Salem Buseif to my piece on developments in the Maghreb region of Africa and the lessons that Morocco, in particular offered for regional integration in Africa.

It has taken a long while to do some additional research to understand the arguments in both the article and the person of ‘diplomat’ Buseif.  At some point, I wished I could make an appointment to meet him in person but still have to complete my busy diary before that. It is rather too hard to believe that a member of the diplomatic community in my country could make such an overwhelming and blatant attach on another AU member-state. My long training in the field of international relations, diplomacy and regional integration is just about to be tested. It is my duty is to firmly defend the course.  Since the beginning of the regional conflict over the Sahara, Morocco condemned the inclusion of the so-called SADR in the continental organization, an entity that doesn’t fulfil the criteria of recognition in international law, yet. This admission prompted Morocco, a founding member of the OAU to withdraw from it. It appears to me that the Sahara issue has since constituted a major block in the way of the construction of the Maghreb Arab Union. It shocked me and most of my IR students that one can qualify Morocco as an “occupying power”. I see no legal basis for this but rather a distortion of the definition of occupation, as established in international, conventional and common law or even wisdom. I prove it wrong! After the announcement of the Green March by the late King Hassan II, on 16th October 1975, the United Nations Security Council referred to the Sahara conflict in its resolutions 377 of 22 October and 380 of 6 November 1975, as an issue that can be solved through negotiations and which the concerned and interested parties might undertake in virtue of article 33 of the charter, in order to settle the issue permanently, as it has been the case for the other territories of the south of Morocco occupied by Spain in the past.  In fact, accession to independence by Morocco in 1956, did not concern the entirety of its national territory, because Morocco was at that time under French protectorate in its central part, and Spanish domination in its northern and southern parts, including an international administrative presence in Tangiers.  So, Morocco had to negotiate its independence through phases by opting for negotiations in order to peacefully settle the colonial presence of Spain in its territory. Those negotiations have allowed the recovering by Morocco of its regions of Tarfaya and Sidi Ifni in 1958 and 1968. 1975, Spain withdrew its troops from the Sahara on 11 November, following the Madrid Agreement. This explains why Morocco, like Tanzania, did not accept the “principle of intangibility of borders” inherited from the colonising powers. This is basic IR history! By virtue of the Madrid agreement, Morocco was duly noted by the United Nations General Assembly in its resolution 3458-8 of 11 December 1975 as the administrating power in the Sahara.  Therefore, by exercising its authority over the territory in full legality, Morocco is in her right to devolve some competences to the democratically elected representatives of the Sahraouian population, with the objective to permanently resolve this regional conflict. Therefore, considering Morocco as an “occupying power” is completely wrong by all odds. The concept of “occupying power” as defined by The Hague Regulation of 1907 and the 4th Geneva Convention of 12 August 1949, and by common law means a State that partially or totally occupies a territory of another state that enjoys prerogatives linked to the subsistence and the security of its troops. So, how does the concept relate to the situation of the Sahara, where there was no war with another state, nor an occupation of its territory? As for the assumption that Morocco accepted to share the Sahara territory with Mauritania, suffice it to remind that Algeria officially proposed, on 2 November 2001, to the Personal Envoy of the UN Secretary General   James Baker, the partition of Sahara between Morocco and the Polisario, which proposal completely buries the Algerian sponsored so-called commitment to the principle of “self-determination” and the myth of the territory of the “Sahrawi population”.  Regarding the referendum of self-determination, Morocco has proposed since 1981, during the 18th African Summit held in Nairobi, the organisation of a referendum under international supervision, and has even committed to respect its result. However, the admission of the SADR in the OAU brought the situation in jeopardy, by imposing a fait-accompli; the admission of the SADR as a full member of OAU, an entity that doesn’t fulfil the paramount pre-requisite of the organisation, namely an African Independent and “Sovereign State”. I take the admission of Polisario in the OAU to amount to flagrant violation of chapter 4 the OAU Charter. As for the allegation that Moroccan sovereignty over the Sahara lacks international recognition, suffice here to recall that the UN Secretary General has asserted that the independence of “Western Sahara” is neither a realistic option nor an attainable objective. It is also worthy to recall that Morocco’s return to the AU in January 2017 was supported by more than 42 African States.  Let me underline that prior to 1973, the Polisario had no existence at all during the Spanish colonial period and Morocco was the only country that voiced claim over the territory. On the international level, the polisario is not recognised as a liberation movement and does not have juridical or popular legitimacy to claim being the sole and only representative of the Sahrawi population, the majority of whom are living inside Morocco, and constitute the Majority of Sahrawi compared to the refugees held against their will in the refugee camps of Tindouf by the Algerian army and its Polisario proxies. In juxtaposition with the state of affairs inside Morocco, the situation of the sequestered Sahrawi inside the Tindouf camps, is unique in the eyes of international humanitarian law. Taking hostages, for decades, entire populations of men, women and children to score political gains indeed confers to the situation of the Tindouf populations a unique character that has no liking in the annals of international humanitarian law.  Algeria, which is the hosting country, refuses until today to comply with its obligations in conformity with international humanitarian law, namely the protection of the Tindouf refugees. Instead Algiers continue to reject, since 2001, the HCR appeals to conduct census of those populations, thus, violating systematically the fundamentals of international law. I wish to submit in conclusion, that   Buseif’s rejoinder is rather provoking and inspires interest for further research in this and related issues in the Maghreb. My own promise is to seek to inquire, know and write more. Other analysts are also being invited to this discussion to broaden audience. Deus Kibamba is trained in Political Science, International Relations and Law.  Executive Director Tanzania Citizens' Information Bureau.