Africa’s ‘Last Colony’

Africa’s ‘Last Colony’

“Morocco’s forceful attempt to annex Western Sahara constitutes one of the most egregious violations of the international order codified in the wake of World War Two. The United Nations was founded to prevent the aggressive expansion of territory by force. Yet in Western Sahara, the Security Council has turned a blind eye to Morocco’s blatant contravention of the UN Charter.”

- Jacob Mundy,  The legal status of Western Sahara and the laws of war and occupation  (2007)

The presence of laws is not enough to guarantee the presence of morality in law. Common examples of the legalisation of injustice include Nazi Germany’s systematic imprisonment and destruction of millions of people during WWII, or South Africa’s Apartheid government before its democratization in 1991. The “peculiar institution” of the American Slave Economy, and the following eras of Reconstruction and Jim Crow, also bring to mind the power of state institutions to legalize immoral and unjust acts.

Following the Second World War, the United Nations became the optimal space to engage and direct the new historical reality of a “culturally inclusive, representative, pluralistic world community. Access to sovereignty and independence became synonymous with justice, as erstwhile subject-peoples began the process of forming nation-states out of colonial territories. On 14 December 1960, the United Nations General Assembly passed resolution 1514(XV), containing a document that would add the legal and rhetorical force of the UN charter to the independence process, dictating:

That all armed action or repressive measures of all kinds directed against dependent peoples shall cease (art. 4);
That the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights (art. 1);
That all peoples have the right to self-determination, but that this necessarily includes the right freely to determine their political status and freely to pursue their economic, social and cultural development (art. 2);
That immediate steps shall be taken, in United Nations Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories (art. 5).

Half a century after the Declaration on the Granting of Independence to Colonial Countries and Peoples, there remain 16 non-self-governing territories. Only one of them is in Africa, and although legal, there is nothing moral or just about the circumstances of its governance.

Referred to as “Africa’s last colony” the Western Sahara is one of the largest open-air, state administered prisons in the world, comparable to Gaza, or North Korea. Its inhabitants are the Saharawi, a nomadic people indigenous to the Sahel region who have resisted foreign occupation of their homeland since the Spanish claimed the territory in 1884. In 1967, Saharawi activists organized the first indigenous political organization, and launched a campaign of nonviolent protest known as the “Vanguard Movement of the Liberation of the Sahara,” in an attempt to achieve the UN enshrined right to self-determination promised all peoples just seven years earlier.

Here begins another chapter in the use of institutional power to legalize violations of basic rights and the principles of international law. The brutal response of the Spanish government met little to no international censure, whose failure to observe the fundamental human rights of the Saharawi lead to the militarization of the peaceful independence movement in the creation of the Frente Por la Liberacion del Sahara Occidental y Rio de Oro (POLISARIO, also known as Frente Polisario and the Polisario Front) in May of 1973. Concerned about persistent violence, the UN sent a fact-finding mission to the territory two years later to diagnose the Saharawi situation, while the then International Court of Justice (ICJ) considered the legal basis of the Saharawi claim to sovereignty.

Although the Saharawi were excluded from the debate determining their future–reminiscent of the Berlin Conference–the ICJ found in their favor, deciding;

The materials and information presented to it [by Spain, Morocco and Mauritania] 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) of 14 December 1960 in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the people of the Territory. (ICJ 1975)

If the highest legal body in the international community ruled that the Saharawi cause was legitimate, why are they, to this day, living as refugees with their ancestral lands divided by a 1200 mile long, land-mined wall?

The answer is simple. The same legal body that conferred legitimacy to the people is the author, and selective enforcer, of the laws that have turned a blind eye to the human rights abuses and atrocities committed by the Moroccan government since taking over the territory in Spain’s wake.

Chapter VII of the UN Charter, titled “Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression,” presents a means of legally condemning actions committed by a state, as well as providing for the enforcement of punishment should the illegal policies continue. However, the conflict in Western Sahara is currently being adjudicated under Chapter VI, “Pacific Settlement of Disputes,” essentially stripping the UN of any means of compelling the Moroccan government to comply with the 100+ UNSC resolutions demanding Rabat allow the Saharawi (at the very least) their independence referendum.

The UN has been further negligent in their duty to defend the rights of the Saharawi. Of the fifteen active “blue helmet” operations, the United Nations Mission for the Referendum in Western Sahara (MINURSO) is the only UN peacekeeping mission in the world that is not officially mandated to monitor and protect human rights. It is also the fourth smallest mission, with only 233 uniformed personnel on the ground. Efforts to broaden the mandate to include protection of human rights and an increased force have repeatedly failed to clear the Security Council, in no small part to France, a longtime ally of the Moroccan government. In 2006, the UN dispatched a UNHCR mission to report on the situation of the 200,000 Saharawi refugees displaced by the conflict, concluding that:

As has been stated in various UN fora, the right to self-determination for the people of Western Sahara must be ensured and implemented without any further delay. As underlined above, the delegation concludes that almost all human rights violations and concerns with regard to the people of Western Sahara, whether under the de facto authority of the Government of Morocco or of the Frente Polisario, stem from the non-implementation of this fundamental human right.
The efforts by the international community through the Security Council and the Secretary-General aiming at assisting the parties to achieving a just, lasting and mutually acceptable political solution consistent with the right to self-determination of the people of Western Sahara should be fully supported and upheld. (OHCHR 2006)

Despite this clear recommendation, Morocco and its allies successfully blocked its release. Ironically, France has been at the forefront of western response to Arab Spring uprisings in both Libya and Syria, calling for (and assisting in) decisive action to protect the rights of oppressed peoples to self-determination. Yet at every turn, the government has seen fit to gloss over Morocco’s violations of Saharawi human rights, including arbitrary detention and torture, plundering of natural resources, and brutal suppression of non-violent protest.

The complicity of the United Nations and several state governments in the sustained crisis in Western Sahara is undeniable. And entirely legal.

The purpose of my telling this story is two-fold. First, the silence on this issue from international news outlets is shocking, and shameful. Morocco is not the first country to shut out the press to hide its wrongdoing, but its success at doing so indicates the willful decision by the international press community to allow the state to dictate what is said about its activities. The Saharawi story is the Rohingya story, the Tibet story, and the Palestine story.

Second, this, and cases like it, reveal the inherent failing of the international rule of law community: democratic institutions and the rule of law are not enough to provide for justice, and affirmation of fundamental human rights. There must be some means or accountability for all institutions and transactions, else justice will always serve the oppressor, and legal rhetoric as fruitful as breadcrumbs cast into the sea.

THE WORLD JUSTICE PROJECT, 21 Nov 2012