Appendices

Appendix 1: Letter from Human Rights Watch to Moroccan Authorities Requesting Information on Human Rights and Western Sahara

May 7, 2008

Ambassador Aziz Mekouar

Embassy of Morocco

1601 21st St., NW

Washington, DC 20009

Dear Mr. Ambassador,

As you know, Human Rights Watch is preparing reports on human rights conditions in Western Sahara and in the Tindouf refugee camps. Our established practice is to submit, during the course of our research, questions to the authorities whose record is the subject of the report, in order that their information and point of view can be reflected in the reports that we publish.

In keeping with that practice, we are submitting questions both to Moroccan and Polisario authorities about specific cases of concern, as well as about general policies. Over the course of the last few months, we have already exchanged information, in person and via correspondence, with you and other Moroccan officials and plan to incorporate into our report all of the relevant information that you kindly provided.

What follows are three general questions, followed by queries about a sampling of the individual cases that we are considering for inclusion in our forthcoming report.

(1) A human rights mandate for MINURSO. The Polisario has said that it favors extending the mandate of MINURSO to include human rights observation in the Moroccan-controlled Western Sahara and the Polisario-controlled areas. What is Morocco's position with respect to this proposal?

(2) Reconciling Moroccan law and its international human rights engagements. Many of the contentious cases involving freedom of expression, association and assembly in the Moroccan-controlled Western Sahara revolve around activities or public speech deemed to favor Sahrawi independence. The authorities deem such activities to be attacks on Morocco's "territorial integrity" and forbid them. Please explain how Morocco reconciles its international legal obligations to respect freedom of expression, association and assembly, with its general practice of forbidding peaceful public expression and activities deemed to favor Sahrawi independence.

(3) Civil Liberties under the Autonomy Plan. In light of your answer to question 2 above, please indicate whether Morocco's autonomy proposal for Western Sahara envisages any change to the general practice of forbidding peaceful public expression and activities deemed to favor Sahrawi independence.

(4) Expulsion of foreign human rights delegation. Please explain the reasons for the summary expulsion from Morocco of a human rights delegation from France composed of Frédérique Lellouche, Pierre Alain Roussel, Mireille Brun and Claude Mangin on April 25, 2008.

(5) Investigations into Allegations of Excessive Force by the Police. Below is a list of complaints submitted by alleged victims of human rights violations submitted to the offices of the prosecutor at the Court of Appeals and the Court of First Instance in El-Ayoun. Please inform us of the status of these investigations; the findings, for those that have concluded; and for each, whether in the course of the investigation, the prosecutor's office contacted the plaintiffs and invited them to provide testimony or evidence as part of the inquiry:

(a)Multiple concurring complaints that police in downtown El-Ayoun violently broke up a human rights sit-in on December 10, 2006, injuring several participants. Complaints were submitted to the office of the prosecutor at El-Ayoun's Court of Appeals by el-Ghalia Djimi (whose complaint was stamped by the court as 06 ام ق 122 of December 11, 2006), Brahim Dahhane (stamped 06 ام ق123 of December 13, 2006), Sidi Mohamed Hamia (06/123 ام قof December 12, 2006), and al-Sharif al-Kouri (ام ق127 of December 13, 2007).

(b)Complaint filed by Hassan Duihi that police in El-Ayoun arrested him on August 23, 2007 and subjected him to a beating and humiliation while holding him overnight and forcing him to sign a statement they prevented him from reading (complaint stamped by the El-Ayoun Appeals Court as ش 07/94 of August 27, 2007).

(c)Complaint filed by Limam Oumlakhout that police in El-Ayoun arrested her on April 13, 2007 and beat her at the 24 November police station (complaint stamped by the El-Ayoun Appeals Court as ش07/57 and dated April 16, 2007).

(d) Complaint by Omar Chtouki and by his father Lahoussine Chtouki that police in El-Ayoun arrested and beat 16-year-old Omar in custody on February 18, 2007 and on April 7, 2007, breaking his leg in the latter incident (complaint stamped by the El-Ayoun Appeals Court as ش07/35 dated February 21, 2007 and ش  07/61 dated April 25, 2007). 

(e)Complaint by el-Mehdi ez-Zai'ar, born December 8, 1987, that on January 22, 2007 police in El-Ayoun arrested him and severely beat him, before releasing him the next day (complaint stamped by the El-Ayoun Court of First Instance, number and date illegible).

(f)Complaint by Mohamed Boutabâa, born in 1970, that on May 17, 2006, police deliberately drove their car into him in the Maâtallah neighborhood, causing severe injuries. The incident occurred in the context of pro-independence demonstrations staged on the occasion of a visit by a delegation of the UN High Commissioner for Human Rights. Boutabâa submitted two complaints to the El-Ayoun Appeals Court (stamped ش 06/123 dated May 31, 2006 and [number illegible] December 20, 2006). When we met with assistant prosecutor at El-Ayoun's Court of Appeals, Abdennasser Barzali, on November 7, 2007, he acknowledged receiving both of Boutabâa's complaints and said they were still under review, a year and-a-half after Boutabâa had filed his first complaint.

(6) Accountability for Violations. Please provide specific information about instances since 2005, other than the death of Hamdi Lembarki in El-Ayoun 2005, in which police have been criminally prosecuted for cases involving human rights violations in Western Sahara.

(7) Freedom of Association. Authorities barred the Collective of Sahrawi Human Rights Defenders (CODESA) from holding a constitutive assembly in El-Ayoun on October 7, 2007, thereby preventing them from taking even the first step in the process of gaining legal recognition. Please explain the legal basis for this apparent refusal to allow CODESA to regularize its status.

(8) Freedom of Movement. The frequency with which authorities prevent Sahrawi political and human rights activists from traveling abroad has declined in recent years. However, the problem seems to continue in different and subtler forms. There are allegations that the public administration arbitrarily refuses to allow Sahrawi activists employed as civil servants to use earned vacation time in order to travel abroad, where they would plead their cause.

Thus, the Ministry of Agriculture, Rural Development and Sea Fishing refused el-Ghalia Djimi, vice-president of the Sahrawi Association of Victims of Grave Human Rights Victims Committed by the Moroccan State (ASVDH), permission to take her earned vacation from her post at the ministry in order to travel abroad. Djimi, of El-Ayoun, made clear that the purpose of her travel was to pursue human rights work in Europe on behalf of Sahrawis. Three times she applied to use her vacation time to travel abroad during the last quarter of 2007, and each time her employer refused, on the grounds that her services were needed at the office. Djimi said this reason is not credible since her employer gives her virtually no work. However, when Djimi applied to take vacation days to travel to Rabat, Morocco in April 2008, permission was granted.

Also prevented from foreign travel is Mohamed el-Moutaouakil, a member of the national council of the Moroccan Forum for Truth and Equity and of the secretariat of CODESA. El-Moutaouakil has a post in local government in Casablanca, which is part of the Interior Ministry. Authorities have systematically refused to allow him to use his vacation time to travel abroad since his release from prison in 2006, even though, like Djimi, he is given virtually no work to do.

We would welcome explanations from these two ministries why they have refused to grant permission to these two employees to use their vacation days to travel abroad.

We look forward to reading your answers to the above questions, as well as any additional comments you wish to provide. We will be able to reflect any pertinent information you provide to us by May 30, 2008 in our final report.

Thank you for your consideration. Please let me know if you have comments or questions.

Sincerely yours,

Sarah Leah Whitson

Executive Director

Middle East and North Africa division

Appendix 2: Response from the Government of Morocco, dated May 30, 2008, to Letter from Human Rights Watch

(translated from Arabic by Human Rights Watch)

Introduction

The Kingdom of Morocco, conscious of the significance of human rights in its global dimension, has prioritized this issue and is moving forward and without reservation to fortify the rule of law, democracy and sustainable development while keeping in mind its political realities, regional security, and the protection of the security and integrity of its citizens. The culture of human rights is underscored in the Kingdom's constitution, the preamble to which affirms Morocco's commitment to the principles of human rights as agreed upon internationally.

The Kingdom of Morocco, convinced that the consolidation and protection of human rights constitute first and foremost a process that requires development, has taken a number of steps, including Morocco's initiative to negotiate autonomy for the Sahara region, which aspires to attain a peaceful, just and permanent settlement of the Sahara dispute while preserving the Kingdom's territorial integrity and sovereignty over these provinces.…

Human rights are being implemented in all provinces without discrimination between the Saharan provinces and the rest, on the basis of the equality of all citizens under the Constitution (Article 5) and the Universal Declaration of Human Rights (Article 7). Thus, citizens coming from the southern provinces enjoy all the rights and freedoms, and are subject to the same duties and responsibilities, as the rest of Morocco's citizens.

Based on these considerations, and in order to clear up all ambiguities and fallacies that aim to cast doubt on the democratic course that Morocco has adopted in order to consolidate the rule of law and to spread the culture of human rights, we must provide the following clarifications and information regarding the questions posed in your letter:

1. The position of Morocco regarding the proposal by the Polisario movement to extend the referendum mandate of the United Nations Mission in Western Sahara [MINURSO] to include monitoring human rights in this region

Morocco has negotiated with the United Nations to define the types and scope of the tasks and authority assigned to the United Nation's Mission in the Sahara, on the one hand on the basis of [doing] what is necessary to implement these tasks and, on the other hand, [doing that which is needed to] respect Moroccan sovereignty over the province and to avoid posing obstacles to its development and advancement.

Based on this reasoning, there is no legal or rational reason why Morocco should reevaluate the tasks and responsibilities of the UN mission, or consider extending them to include other functions that could undermine Morocco's sovereignty, [especially] considering that:

• the residents of the southern regions enjoy full civil, political, economic, social, and cultural rights, and actively contribute to all facets of life;
• these districts have witnessed astounding progress in comparison to the circumstances they were in following the departure of the Spanish from the region in 1975, thanks to Morocco's pro-development policies and the major efforts it exerted in all fields, including human rights;
• the few elements that attempt to propagate the separatist thesis and destabilize [Morocco] by all means, including the use of violence while hiding behind the pretense of defending human rights, are pursuing activities that violate Morocco's laws and the bedrock principles of the nation.

It is also worth mentioning that the "Polisario's" claim that they are willing to accept the extension of the mandate of the UN's mission to the "regions under its control" is merely a diversion, in light of the fact that the regions that are inhabited are the Tindouf Camps (in Algeria) rather than the regions east of the Security Belt [the berm] that Morocco considers an integral part of its Sahara but has allowed to be under the control of the UN mission for purely technical-military reasons.

2. Reconciling Moroccan laws with its international legal obligations regarding human rights, especially respecting freedom of expression, association and assembly

As noted before, Morocco has committed itself constitutionally to the principles of human rights in their universal dimension. To underscore its commitment, Morocco has ratified, or joined, most of the relevant international covenants and agreements. In accordance with international obligations, the Moroccan Constitution guarantees to all citizens freedoms of opinion and expression in all their manifestations, as well as freedom of assembly and association. The exercise of these freedoms cannot be restricted except when the law so requires (Article 9 of the Constitution). Moroccan legislation sanctifies these constitutional principles and encodes them in various laws. They found their first manifestation in the Press and Publishing Law, issued on November 15, 1958, which was later amended in important ways to reconcile national laws with international agreements relating to human rights and freedom of thought and expression, which are considered among the most important freedoms required by democratic regimes.

Freedom of expression: The Press and Publication Law consecrated the right to publish newspapers, the right to print, publish, and promote books, the right of citizens to have access to the media, and the right of the media to have access to sources of information. These freedoms are practiced within the context of the principles of the constitution, the provisions of the law and the ethics of the profession (Article 1 of the Press and Publication Law). And while freedom of expression is an absolute right, its practice entails duties and responsibilities and can be subject to certain measures, conditions, and penalties when used irresponsibly and when it infringes on others' rights and harms their reputation, or when such restrictions are necessary to protect security, or public order, or public health, as stated in Article 19 of the Universal Declaration for Human Rights. In this regard, Moroccan law criminalizes only those acts that contradict the content of international agreements.

Freedom of assembly: Freedom of assembly is guaranteed by the Constitution (Article 9). In accordance with international agreements, Moroccan lawmakers consecrated the freedom of public assembly, in the provisions of Article 1 of the Law on Public Gatherings. Public assemblies are permitted without obtaining prior permission (Article 2 of the same law) and can be held after notifying the local administrative authority who has jurisdiction over the area that includes the location of the assembly (Article 3 of the same law). Associations and groups that were formed for cultural, athletic or charitable purposes and that are legally constituted are excluded from this requirement.

The right to assembly, while absolute, is subject to restrictions when it contravenes the public order or public decency or when it incites the commission of crimes punishable by the law (Article 6 of the Law on Public Gatherings), in conformity with Article 21 of the International Covenant on Civil and Political Rights.

The Law on Public Gatherings governs street demonstrations and assemblies. Street demonstrations may be organized without prior permission (Article 11 of the Law on Public Gatherings) as long as the legal requirements are respected. The role of the authorities is limited to issuing a receipt acknowledging they have been notified, rather than a permit to organize the demonstration. If the organizers of the assembly are unable to deliver the formal notification in person, they can send it to the local administrative authority via registered mail (Article 12 of the same law).

The Law, in Article 17, forbids armed gatherings in public streets, as well as all unarmed gatherings that infringe on public security.

 

In this context, it is important to emphasize that the authorities make certain that security forces intervene to disperse gatherings in a calm and disciplined manner that is respectful of human rights and of citizens' dignity. The procedure [for dispersing gatherings] is never implemented unless the protesting action is found to violate the law or if it disturbs public security and public order.

No one has shown that Moroccan authorities have ever forbidden any peaceful action to express an opinion or to take a stand, no matter how opposed it may be to their own policies. This shows our country's commitment to international agreements that contribute to implementing the principles of democracy and the right of expression that Morocco has adopted. The authorities do not intervene except to fulfill their duty to protect security and maintain public order and [protect] citizens' safety and their property.

Freedom to establish associations: The Constitution guarantees, in Article 9, the right to establish associations and to join them. The legislature has dedicated a number of texts to the establishment of associations (Article 2 of the royal decree No. 1.58.376 issued on November 15, 1958, later revised by law 75-00 relative to the establishment of associations). The role of the administrative authority is limited to providing a temporary receipt of deposit upon the issuing of a permit, and a final receipt of deposit within 60 days, after the conclusion of all the procedures required by the law. And if it [final receipt of deposit] is not provided within this period, the association can then pursue its activities in accordance with the goals listed in its bylaws.

Pursuant to these conditions, all individuals have the right to establish associations, conditional on the association's complying with the law and conducting itself in an appropriate manner, and refraining from insulting the Islamic religion, or threatening territorial integrity or the monarchical form of government, or advocating any form of discrimination in accordance with Article 22 of the International Covenant on Civil and Political Rights.

3. Civil liberties under the autonomy plan

The autonomy plan proposed by Morocco to reach a just and final solution to the fabricated conflict over our territorial integrity provides all guarantees relating to the respect of human rights in its comprehensive conception, and forbids any attempt to retreat from these guarantees that the institutions of autonomy might initiate, be they legislative, executive, or judicial. It also bans any racial, tribal, or other form of discrimination.

The autonomy proposal also does not allow for any attempts at secession or independence from Morocco, for reasons related to the bedrock principles of the nation that permit no deviation: Islam, the constitutional monarchy, and national and territorial unity.

4. The reasons for deporting a foreign delegation without first obtaining judicial review

Regarding the deportation by Moroccan authorities on April 25, 2008 of a foreign delegation whose members are Frédérique Lellouche, Pierre Alain Roussel, Mireille Brun and Claude Mangin (the wife of Naâma al-Asfari, who was arrested on April 15, 2008 and brought to justice and sentenced to imprisonment for two months and fined 3,700DH after being convicted of "beating, causing injury, public drunkenness, driving while intoxicated, and causing damage to public property"). It is important to note that the aforementioned delegation members committed acts that violated public security when they directly contacted some citizens and encouraged them to organize public and street gatherings and rioting in order to disrupt public security and stability.

On these grounds, local authorities issued deportation orders against them in accordance with Articles 25 and 27 of law 03-02, which relates to the entry and residence of foreigners in the Kingdom of Morocco, and to illegal immigration. Article 25 of the law empowers the administration (local authority) to take the decision to deport a foreigner from Moroccan soil if his or her presence constitutes a threat to public order.

The deportation orders against the concerned individuals were issued by the local authorities who are legally empowered to make the decision. The concerned parties were notified in a legal manner consistent with the rules of international law, specifically international diplomatic law, according to which the French consul in our country notified them of the deportation order. And they were personally informed of the decision by the relevant security authorities in accordance with the notification rules provided by Moroccan law….

5. Investigations into allegations of the use of force by the police

Moroccan law allows the use of public force to preserve public security and order, or to execute judicial decisions and administrative orders. However, the use of force is to be within prescribed limits without any excess, and fully respectful of the rule of law. Any excessive use of force is considered to violate the rights of others and its perpetrators are subject to disciplinary sanctions ranging from temporary suspension to permanent dismissal (Article 32 of the Code of Criminal Procedure and Articles 225 and 436 of the Penal Code).

In this context, all complaints submitted to the general prosecutor's office by aggrieved parties become the subject of judicial investigations that take time to be carried out, in order to hear from all parties and to collect sufficient evidence to prove the allegations. In some cases, the complaints omit elements that are essential to the investigation, in which case the complainant must be summoned to clarify and confirm the complaint and provide testimony and evidence that can prove or disprove the veracity of what is being claimed. After referring the complaint to the general prosecutor's office for examination, the prosecutor decides to refer it to investigation or to a court after filing charges against the perpetrator, or to close the file, either because of a lack of sufficient evidence or a lack of the elements that would constitute a criminal offense.

Returning to your question regarding the status of the complaints submitted to the general prosecutor's office at the Court of Appeals in El-Ayoun concerning allegations of the use of [excessive] force against specific individuals, [we] have attached to this letter a table that includes a list of the cases, the status of each and the measures taken, in accordance to the above-mentioned requirements.

6. Accountability for violations

This question seeks information regarding the criminal prosecution of any police for violating human rights in the Moroccan Sahara, beyond the case of the death of Hamdi Lembarki. This question insinuates that the region might be experiencing human rights abuses, that these abuses are being overlooked, and that the law is not being applied. This amounts to a blatant indictment of policies in the southern regions of the Kingdom.

The question suggests there might have been other cases of death, or cases in which torture was practiced, and the law was not applied to them. In this context, it is necessary to repeat that the legislature has assigned to the general prosecutor's office the duty to keep informed of the investigations conducted by the judicial police, oversee its work, and visit the locations of garde à vue detention. When the judicial police seek to extend a detention, the law requires that they bring the suspect before the royal prosecutor or the royal general prosecutor, who, before granting an extension, must assess the detainee's health, hear from him, and assess the legitimacy of the reasons for requesting the extension.

In addition, the judicial police is required to maintain a log and records that are numbered and signed by the royal prosecutor and that include the detainee's ID number and the dates and times that his period of detention began and ended. The judicial police is required to inform the family when they take a detainee into custody.

The detained person can contact a lawyer as early as the first hour of the period extending his garde à vue detention, and the lawyer can provide during his client's garde à vue detention written documents and comments to the judicial police or to the general prosecutor's office that will be entered into the record (Article 80 of the Code of Criminal Procedure).

The law requires the royal prosecutor and the royal general prosecutor and the investigating judge to order a medical exam of the person brought before him if the person asks for it, or if his lawyer asks for it, or if he himself notices physical marks indicating the use of excessive force or torture. Furthermore, confessions extracted by force or violence are not admissible (Article 293 of the Penal Code). The same applies to acts of torture included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and that became crimes under Moroccan criminal law under the terms of Law 43.04, which stiffens the punishments imposed on perpetrators of this crime.

7. Clarifying the legal basis for allowing the "Collective of Sahrawi Human Rights Defenders" to regularize its status

Article 21 of the International Covenant on Civil and Political Rights states: "The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others." From this it is clear that associations and unions may be established in complete freedom, with no restrictions on this right except those provided by law, that is, the national law of the state party to the covenant.

In this regard, it is worth mentioning the large number of associations formed in the various southern provinces. Authorities prohibited the inaugural assembly of the so-called "Collective of Sahrawi Human Rights Defenders," pursuant to the Law on Public Gatherings, in order to avoid a possible deterioration in security and to prevent its exploitation as another means to spread separatist propaganda.

Reviewing the principles underlying the inaugural assembly of the "Collective of Sahrawi Human Rights Defenders," we find that the goal in establishing this association is to "promote the culture of human rights in Western Sahara and Morocco's southern cities and universities that contain students coming from these regions." This constitutes an infraction of the provisions of Article 05 of royal decree 1.58.376 issued on November 15, 1958, as revised and expanded upon by law 00.75 on the founding of associations.

Given that this association aims to organize and represent a specific segment of Moroccan society while excluding others, not to mention that even its name displays its discriminatory origin, it directly violates the requirements of Article 3 of the above-mentioned royal decree.

Furthermore, Moroccan authorities are preventing the legalization of this association due to the obligation to respect the bedrock principles of the nation. This group tries to use the cover of a human rights association to create a political organization connected to the Polisario Front, which aims to compromise national territorial integrity by advocating separatism. It thus violates the requirements of Article 3 of the same royal decree, which states: "Any association is void if it is founded on a cause or has an objective that is illegal, contrary to good morals or that aims to undermine the Islamic religion, the integrity of national territory, or the monarchical regime, or that calls for discrimination."

8. Clarifications regarding the refusal by the public administration to allow el-Ghalia Djimi and Mohamed el-Moutaouakil to benefit from their administrative permits

In Morocco, freedom of movement is guaranteed by the Constitution in Article 9.This freedom cannot be abridged except by law. Based on that, any individual has the right to travel inside and outside Morocco freely as per the relevant international agreements (Paragraphs 2 and 3 of Article 12 of the International Covenant on Civil and Political Rights).

In light of this, limits may be imposed on this freedom only in accordance with procedures specified by the Code of Criminal Procedure, which allows the royal general prosecutor, the royal prosecutor, and the investigating judge to order the closure of the borders should an investigation so require, for a period that cannot exceed one month if the matter under investigation relates to an offense punishable by two or more years of imprisonment. On the other hand, administrative authorities have no power to forbid an individual from leaving the national soil.

In response to the claim that the above-mentioned persons were not allowed to benefit from their administrative permits to travel abroad, it must be stressed that this is not a matter of violating the right to freedom of movement, but rather an administrative course of action taken by their employers (respectively, the Ministry of Agriculture and the Council of Communes of Casablanca), who refused to give them leave to take their vacation.

The decisions taken by the administration are proper, because the internal bylaws of public employment and local administrations grant the administration a discretionary authority to manage administrative permits according to its needs and interests.

Finally, the above-mentioned persons have benefited in the past from administrative permits with total freedom to travel both inside and outside the homeland. The best attestation to that is the fact that el-Ghalia Djimi has benefited in the years 2006 and 2007 from administrative permits and made two visits to Italy and Belgium to spread her separatist ideas with full freedom and returned to Morocco without undergoing any noteworthy administrative oversight.

Conclusion and Notes

The Moroccan government appreciates your preparing a report on human rights in the Moroccan Sahara and the Tindouf camps and the methodology of submitting written questions to the concerned parties to obtain the needed clarifications regarding allegations of the occurrences of human rights infractions or violations. While we value the rights-based approach of your organization, we wish to make some comments on what you included in your previous reports on human rights conditions in our southern provinces:

• you gather information on human rights by relying on unofficial channels, or relying on complaints that you receive from certain parties, without verifying the facts regarding these matters through direct contact with the parties to whom these supposed violations are attributed, despite the fact that you conduct periodic visits to observe and examine, with full freedom, the human rights conditions in our country in general and in the southern provinces in particular. Your reports fail to provide, for the purpose of comparison, the official positions of the Moroccan government and of the specialized national organizations, in order to ensure truth and objectivity on human rights conditions in Morocco.
• your reports do not include the many types of human rights violations occurring in the Tindouf camps, involving the rights of refugees, as specified in the 1951 agreement, and the stifling of freedom of expression and assembly and association, as well as freedom of travel and movement.
• the reports you publish on the human rights conditions in the southern provinces of the Kingdom and the Tindouf camps lack neutrality and objectivity, in contradiction with the goals for which your organization was founded, and with the purposes that you claim to underlie your reporting.

The Moroccan government would like to use this chance to invite you to widen the scope of collaboration and base it on a new approach to deal with the varied information you receive on claims regarding the conditions of human rights in Morocco in general and the southern provinces in particular, by instituting a responsible and productive dialogue with the Moroccan government and the appropriate national institutions to uncover the fabricated claims about the human rights conditions in our country, and to examine any case that indicates the occurrence of infractions, in light of the fact that Morocco has the laws, the institutions, the necessary will, and the accumulated experience in this area to resolve and put an end to such violations and their effects.

Answers regarding the measures taken in response to complaints filed by individuals cited in question 5 in the letter from Human Rights Watch

Plaintiff: Limam Oumlakhout

Date and number of complaint: April 16, 2007, 07/57

Against: Aziz "El-Touheimeh", senior officer

Subject of complaint: Allegedly taken from her home at 9pm, to the police station in the company of her mother and her sister, assaulted and released around 12am.

Measures taken: The public prosecutor has order an inquiry into this matter.

Observations: The investigation is still pending.

Plaintiff: Ech-Cherif El-Kouri

Date and number of complaint: December 11, 2006, 06/126

Against: Aziz "El-Touheimeh" senior officer, and Brigadier Ichi abou el-Hassan

Subject of complaint: Allegedly detained by police, taken to police headquarters, subjected to torture, severe beating, threatened with rape, referring to his being the brother of [Sahrawi independence activist] Aminatou Haidar.

Measures taken: After looking into this matter and examining the records of the public prosecutor, no record could be found of this plaintiff having complained to the judicial authorities on this matter. For this reason, the public prosecutor closed the file for lack of evidence and lack of the elements suggesting that a criminal offense had been perpetrated against the plaintiff. The aim of the complaint is to confuse and impede the activity of the judicial police. The concerned party has been notified of the decision.

Plaintiff: Sidi Mohamed Hamia

Date and number of complaint: December 11, 2006,06/123

Against: Police Chief Ichi abou el-Hassan

Subject of complaint: Subjected to beating on different parts of his body by members of the police while participating in a peaceful sit-in in front of the Nakjir Hotel on Global Human Rights Day, organized by supporters of a human rights association.

Measures Taken: The judicial inquiry into this subject determined that it concerns an unauthorized sit-in that could constitute a threat to public order and security because its organizers are known to the security agencies as provocateurs who aim to cause disturbances and sew public disorder. For this reason, security forces intervened in a responsible and disciplined manner, causing all of the protestors to disperse in different directions. The complaint is baseless and aims at impeding the police from confronting those who seek to disrupt public order. Therefore, the public prosecution office decided to dismiss the complaint for lack of evidence and has informed the plaintiff of its decision.

Plaintiff: Mohamed Boutabâa

Date and number of complaints: May 31, 2006, ش06/123 and December 20, 2006, 06/129

Against: Aziz "et-Touheimeh", senior officer

Subject of complaint: Alleges he was subject to attempted murder by a police car on May 17, 2006 in the Maâtallah neighborhood.

Measures Taken: Judicial authorities investigated these two complaints and determined them to be specious complaints that aim to prevent public agents from fulfilling their responsibilities to maintain public order. For this reason the public prosecutor decided to close the case for lack of evidence. The plaintiff was informed of the decision on this matter.

Plaintiff: Omar el-Chtouki

Date and number of complaint: February 21, 2007, 07/35

Against: Aziz "el-Touheimeh", senior officer, Mustapha Kamour, patrolman

Subject of complaint: Allegedly abducted, arrested and subjected to beatings, insults and verbal abuse from the party that abducted him.

Measures taken: An investigation into this matter determined that the plaintiff's claim is baseless. He claims to have been on Idris I Street, which is known to be a busy thoroughfare, where there obviously would have been eyewitnesses to the incident. Furthermore, his name does not appear on the official register of those being held in garde à vue detention, and his claim is not supported by witnesses, all of which prompted the public prosecutor to close the case for a lack of evidence. The plaintiff has been notified of this decision.

Plaintiff: El-Ghalia Djimi

Date and number of complaint: December 11, 2006, 06/122

Against: Police Chief Ichi abou el-Hassan

Subject of complaint: The party cited in the complaint allegedly beat and insulted the plaintiff during her participation in a peaceful sit-in by members of a human rights association in front of the Nakjir Hotel on the occasion of International Human Rights Day.

Measures taken: The judicial inquiry into this subject determined that it concerns an unauthorized sit-in that could constitute a threat to public order and security because its organizers are known to the security agencies as provocateurs who aim to cause disturbances and sew public disorder. For this reason, security forces intervened in a responsible and disciplined manner, causing all of the protestors to disperse in different directions. The complaint is baseless and aims at impeding the police from confronting those who seek to disrupt public order. The public prosecution office decided to dismiss the complaint for lack of evidence and has informed the plaintiff of its decision.

Plaintiff: Hassan Duihi

Number of complaint: 07/94 (no date listed)

Against: "Al-Wahhabi", a traffic police officer, and Abdelaziz Allouache [Note: Duihi and the other complainants give his name as Annouche instead of Allouache] "Et-Touheimeh", senior officer

Subject of complaint: The plaintiff contends that his car was seized and that he was arrested and forced to sign a statement that he was not permitted to read.

Measures taken: A thorough investigation into the matter determined that the plaintiff is a reckless driver who continually attracts the attention of traffic officers for committing traffic infractions. Legal statements were filed and his car was impounded in the municipal pound, as befits the type of infraction committed by the plaintiff.

With respect to his arrest, this complaint has no factual or legal basis. The prosecutor decided to dismiss it due to a lack of evidence. The plaintiff was notified of this decision.

Appendix 3: Letter from Human Rights Watch to SADR Authorities

February 8, 2008

President Mohamed Abdelaziz

The Presidency

Rabouni Camp

Tindouf Wilaya

Algeria

Dear President Abdelaziz,

Thank you for meeting with us and for your hospitality last November during our research mission to the Sahrawi camps near Tindouf, Algeria.

As we discussed with you at that time, Human Rights Watch is researching human rights conditions in the Polisario-administered camps and in the Moroccan-administered areas of Western Sahara.

In that regard we are addressing you this private letter in the hope that you will respond substantively to the concerns expressed herein, so that we may reflect your government's official views in the report that Human Rights Watch intends to issue. We will be able to do that if your response reaches us by March 3, 2008.

During our visit to the camps, we investigated allegations that some dark-skinned camp residents continue to suffer from slavery-like practices. In separate interviews, several refugees described a practice whereby unmarried women who belong to what they themselves labeled "slave" families cannot marry without the consent of persons they described as "owners".

When the families of a woman and a man who wish to marry go before a qadi (judge) in the camp to ask that he perform a marriage, the qadi will first ask if the "slave" woman has the consent of her "owner". The qadi will refuse to perform the marriage ceremony without the "owner's" consent.  One resident of the camps showed us a document, dated June 13, 2007, which he said his family's "owner" wrote to renounce all ownership rights over the family. This document bore a stamp that read the "Court of First Instance in Aouserd Camp". When we showed a copy of this document to Justice Minister Hamada Selma on November 13, 2007, he called it a forgery, stating categorically that the SADR Justice Ministry has never issued, or lent its official stamp to any document pertaining to slavery. He said that no person has ever presented a complaint before the Justice Ministry that a qadi had refused to perform a marriage without the consent of the bride's family's "owner." Minister Selma did say, however, that the Maliki madhhab, the school of Islamic jurisprudence that the courts apply in the camps in matters of family and personal status, requires the permission of the bride's parent or guardian before the qadi will marry her.

We wish therefore to relay to you the complaint of a woman who says a qadi refused to marry her because the "owner" of her family withheld his consent. N'keltoum Mahmoud, aged 23, the daughter of Halima Salim Bilal (also known as Halima Abbi el-Keynan, a resident of the Tiguelta daïra in El-Ayoun camp) told us in November 2007 that since October 2006, she has been prevented from marrying her fiancée because her family's "owner," Abi M'hamed al-Najim, refused to consent to the marriage.

N'Keltoum and her mother, Halima, told Human Rights Watch that the qadi of the daïra in which they reside, whose name she gave as `Ali Ould Zaya, refused to perform the marriage ceremony without the owner's consent. Halima said that she subsequently went to the qadi of the wilaya, Ibrahim Sid al-Ouroussi, who told her that the matter was between her family and the owner. Halima said that she complained to an official at the Ministry of Justice, who told her to bring the case before the court in Aouserd camp. Halima did so, but the judge told her that the matter was in the hands of the owner. (The names of the official and the judge are currently unknown to Human Rights Watch.)

In December 2006, Halima wrote a letter complaining of these events. Halima said she delivered the letter, of which Human Rights Watch has a copy, to an official named M'Rabbih Ouelimani at the Ministry of Justice in Rabouni camp. As of November 2007, there had been no response, and N'keltoum Mahmoud was still unable to marry. Halima told us she was considering having the ceremony performed by an Algerian judge in the city of Tindouf, but that such a marriage would most likely not be recognized within the camps. We would appreciate any further information you could provide about N'Keltoum's case, including any steps that may have been taken in response to Halima's complaints.

Human Rights Watch is also following the case of a girl known by the first name of "Saltana," who is in Spain and is arguing in Spanish courts that she should not be sent back to the Tindouf camps because she is a slave there. Saltana arrived in Spain from the Tindouf camps at the age of nine in 2002, as part of the Vacations in Peace summer program for Sahrawi youth. Since that time Saltana has resisted being returned to the camps on the grounds that her "mother" in the camps, whose name is given as Guevara el-Bardi, is in fact not her biological mother but rather her "owner." Saltana has said that she performed household chores for her "mother" during the day while the other children in the household attended school, according to an article about the case in the Spanish daily El País of December 3, 2007. According to the El País article, Saltana's biological mother, whose name is given as Knana Salek, lives in Zoueirat, Mauritania and gave her to Ms. el-Bardi in 2001 so she could take her to the camps in Tindouf. A Spanish couple residing in Murcia, Rosa Maria Sanchez and Gregorio Martinez, has been awarded temporary custody of Saltana while a Murcia court examines the substance of her case.

According to our information, the Polisario or groups affiliated with it in Spain, have taken a close interest in Saltana's case and supported Ms. Salek's efforts to win Saltana's return from Spain. We would therefore appreciate any information you can provide about Saltana's family status and the allegations of slavery that have been raised in the case, and the involvement, direct or indirect, of the Polisario or its affiliates, in the court case. In particular, we would appreciate it if you could clarify whether Saltana was biologically related to, or under the legal guardianship of, any members of the family she lived with in the camps. If so, could you specify the nature of those relationships.  We would also be grateful if you could confirm whether Saltana was enrolled and attending school in the camps before she went to Spain, and if you could specify the name of the school and the grades during which Saltana attended.

Under international law, for an individual to exercise any power of ownership over another such as the power to require someone to perform unpaid domestic labor and the ability to prevent a woman from marrying the person of her choice are hallmarks of slavery. Slavery is defined as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised (Slavery Convention of 1926, Art. 1). Furthermore, as set out in the Supplementary Convention on the Abolition of Slavery of 1956, slavery includes any institution or practice whereby:

A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group (Art. 1 (c)(i)); or the husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise (Art. 1 (c)(ii)); or a woman on the death of her husband is liable to be inherited by another person (Art. 1 (c)(iii)); as well as any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labor (Art. 1 (d)).

Customary international law, as well as the African Charter of Human and People's Rights (Art. 5), prohibit slavery and the slave trade. Governments are obliged to respect the rights of people to be free from slavery, including by ensuring that the right to marry is not conditioned on the consent of an "owner," and by investigating credible allegations of slavery thoroughly and promptly.

Human trafficking is defined as the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation (UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Art. 3). Transferring a child into the custody of another who subjects them to exploitative labor conditions constitutes trafficking. The African Charter on the Rights and Welfare of the Child obliges states to take appropriate measures to prevent the abduction, the sale of, or traffic in children for any purpose or in any form, by any person including parents or legal guardians of the child (Art. 29 (a).)

Human Rights Watch is aware that the constitution of the SADR guarantees individual liberty and equality before the law. Several persons we interviewed in the camps told us that the Polisario was opposed to slavery. We also recall your statement to us, Mr. President, that "the worst crime that can be committed is slavery. From the foundation of the Polisario until now this has been our position. We do not tolerate it. If you find traces you should bring it to our attention."

However, we found credible evidence that aspects of slavery continue. We would therefore be grateful to receive information about measures taken by the Polisario to suppress and eradicate slavery-related practices and in particular detailed answers to the questions we posed above with respect to the cases of N'Keltoum Mahmoud, who contends that a qadi refused to perform her marriage without her "owner's" consent, and Saltana, who contends that she lived as a slave while growing up in the Tindouf camps.

As we are preparing a report for publication soon, we would appreciate your response at your earliest convenience. If we receive a response before March 3, 2008 we will reflect pertinent information from your response in our report.

Thank you for your attention to our concerns.

Sincerely,

Eric Goldstein

Research Director, Middle East and North Africa Division

Human Rights Watch

Appendix 4: SADR's Response to Human Rights Watch Letter of February 8, 2008

(translated from Arabic by Human Rights Watch)

Date: March 1, 2008

Sahrawi Arab Democratic Republic

Ministry of Justice and Religious Issues

Office of the Minister

Mr. Eric Goldstein

Research Director, Middle East and North Africa Division

Human Rights Watch

Washington

Dear Director,

President Mohamed Abdelaziz, Secretary General of the Polisario Front, has closely examined your letter dated February 8, 2008, and has authorized me to convey the following reply:

Mr. Director,

It is widely known that, like so many African communities, Sahrawi society had been suffering much from the consequences of backwardness, including tribal and clannish relations and slavery, a phenomenon maintained rather than combated by colonialism. The suffering continued until the arrival of the Polisario Front, which was indeed a revolution against all forms of backwardness, persecution, and slavery. The Front combated slavery not only at the legislative level but through strict implementation measures that covered all aspects of the citizens' daily life, which contributed to abolishing this loathsome phenomenon. To this end, Articles 25-30 of the SADR Constitution state:

Article 25:

Each Sahrawi citizen is entitled to all the rights and freedoms set forth and guaranteed in this Constitution, without discrimination of any kind, such as on the basis of race, color, sex, language, religion or political or other opinion.

Article 26:

All citizens are equal before the law and are entitled to equality in terms of protections and in terms of penalties….

[The letter then cites from Articles 27-30, which guarantee citizens other basic rights]

As you saw when visiting the refugee camps, we live in a refuge away from our home and endure a difficult natural environment and harsh suffering, which makes the right to life, stipulated in all human laws and regulations, a top priority. Nevertheless, the Front, as a political organization administering the refugee camps, has ensured this right as well as all other internationally recognized rights, especially the right to equal treatment without discrimination of any kind …. The citizens are in practice equal with respect to all opportunities and services provided by the state….

In spite of these efforts, we do not deny the survival, to a limited extent, of certain practices resulting from antiquated thinking. These practices are observed from time to time, though not officially recorded by the competent authorities. They are headed for extinction; the state is determined to combat and eradicate them whenever they surface and whatever the forms they take. These practices include:

·Some old-fashioned persons resort to exploiting the Maliki madhhab, [school of Islamic jurisprudence] regarding the role of the guardian in the marriage of a virgin girl (irrespective of her color) in order to impose custody on her.

·Polyphyleticism resulting from the civil status system used by the Spanish colonial administration, the effects of which some persons have yet to correct.

·Some persons continue to use certain tribal and even racial terms, which reflect a kind of social discrimination.

The state has opened its doors to all citizens who may experience discriminatory practices of any type, to ensure equality and respect for the Constitution and for the law, and to embody the values it is struggling to achieve. There are strict directives to all law enforcement personnel to deal seriously with any complaint and ensure proper law enforcement whenever they encounter violations. A range of government agencies are committed to sensitizing, raising awareness and combating the mentality that clings to some aspects of slavery and color/gender.

The National Sahrawi Council passed a law on civil status in June 2007 that will contribute to addressing the deficiencies recorded in such cases as kinship and marriage.

Mr. Director, we have investigated the cases specified and aspects highlighted in your letter and here are our findings:

Case 1: N'keltoum Mahmoud Bilal. The complaint was submitted by her mother Halima Salim Bilal. They both reside in el-Kitleh district, El-Ayoun province. Halima works as a midwife in the Regional Hospital, El-Ayoun Province. She was in one of the first groups sent by the Polisario Front to Libya to study between 1978 and 1984. She later joined the Women Training Institute in the 27 February School in the Sahrawi refugee camps and graduated as a nurse. She worked for several national institutions before an opportunity opened for her to join the para-medic training school in 2006, where she graduated as a midwife. She benefited from a field internship in Algiers at the end of 2007 and came back to the Jihawi Hospital, where she is still working.

This woman claimed that she had been prevented from giving her daughter in marriage without the attendance of her "owner," and that she had done her best to solve the problem, in vain. The investigation of this case has determined the following:

·Questioning the local qadi (judge) and reviewing the relevant records he keeps proved that this woman had not contacted the qadi or asked him to marry her daughter to anybody, a matter she confirmed herself when she met the governor of El-Ayoun Province.

·The employee (the director for justice and religious affairs in El-Ayoun province) whom the woman contacted is an administrative and not a judicial official and is not authorized to consider such cases. He told her that she had to contact her "master" and if there is a dispute, she should refer the matter to the court.

·The woman did not contact the Aouserd family court and no lawsuit was filed in this regard, as shown by the court records and statements made by court employees.

Building on the above findings, the ministry decided to suspend the responsibilities of the above-mentioned director because of the following mistakes he committed:

·Offering an opinion about a case outside his administrative competence, in violation of the provisions of the relevant laws and decrees governing his profession.

·Failing to report the complaint to the central authorities (neither in the periodic reports nor through administrative mail), which was deemed negligent.

·Answering the woman, he expressed his personal views rather than referring to applicable legal texts and the official position of his administration. This is considered a serious violation of the laws governing the Sahrawi administration and hence requires sanction.

Finally, the governor of El-Ayoun province, who had not known about the case, called Ms. Halima and told her she had the right to marry her daughter whenever she wanted and that the district qadi was ready to marry her to whomever she liked.

Halima declared that all barriers blocking the marriage of her daughter have been removed and while she has not celebrated the wedding so far for personal reasons, she is planning to do so within the coming weeks.

Case 2: Saltana Abdullah, known to you as "Saltana". This young woman was born on August 11, 1994 in the Mauritanian city of Zouérat, her mother being a Sahrawi named Knana Salek and registered under number 1219911 B in the Spanish census of 1974. Saltana had lived in Zouérat until her family was visited in May 2001 by Ms. Guevara el-Bardi, who lives in the Sahrawi refugee camps, in the Farsiyeh District, Smara Province. When Ms. el-Bardi wanted to return to the camps, Knana asked her to take Saltana to study in the camps. (This is recorded in a Mauritanian NGO report dated July 16, 2004, and signed by the organization's director, Boubacar Messaoud.) Ms. el-Bardi agreed. She returned to the camps in July 2001 with Saltana and Saltana's 4-year-old brother Sheikh Ibrahim. Upon arriving camps, Saltana enrolled at school to study from September 2001 to July 2002, when she left for Murcia, Spain to spend the summer in the vacation program for Sahrawi children that is available exclusively to those enrolled in school.

During the school year 2001-2002 (i.e. while living in the camps), Saltana studied at Moustafa Mohamed Rahal School in Farsiya district, under number 43247, in classroom A2, where her teacher was Ms. Khadijatou Mohamed Ahmed. Ms. Khadijatou remembers Saltana clearly, describing her as polite and committed. Ms. Khadijatou did not hesitate to take a photo out of her album showing Saltana's class for the academic year 2001-2002 (photo attached with this letter).

Saltana stayed only one year in the Sahrawi refugee camps. As mentioned above, she went to Spain with thousands of Sahrawi children, but she did not return with them after the vacation. She stayed (and is still staying) with the family of Rosa Maria Sanchez, who convinced the vacation organizers to let Saltana stay for treatment.

In time, it emerged that the host family's plans for Saltana were not legitimate. They used all kinds of tricks and justifications to keep the child and to prevent every contact with her family and other Sahrawis. When the health reason was no longer valid, the family claimed that Ms. el-Bardi had enslaved Saltana in the camps.

In early 2003 Ms. Knana and her family moved from Zouérat to the Sahrawi refugee camps, where she currently resides in the Jadiriya district, Smara Province with her remaining six children …. Ms. Knana requested, via the Polisario office in Murcia and the Friendship Society, the return of her daughter, but she did not succeed despite repeated attempts and numerous contacts. This affected Ms. Knana deeply. In spite of her commitment to taking care of her other children, she decided to move to Spain to recover her daughter who had been taken from her. In May 2006, Ms. Knana arrived in Murcia, where Saltana is living. However…the Sanchez family treated her rudely, with coarseness and contempt. And though Ms. Knana has been in Murcia since 2006, she met her daughter only once and for a few minutes, while the Sanchez family waged media campaigns and resorted to legal delay tactics….

….[Saltana] lived in the camps only for months with Ms. el-Bardi and was enrolled and studying at school, which is why she could take part, like her classmates, in the summer vacation program in Spain. Had slavery been the purpose of bringing her from Zouérat, would Saltana have enrolled in school? Would she have benefited from the summer vacation in Spain … if she had been enslaved? How and where did the Sanchez family come to know Saltana? Was she sent to them in chains? Did they find her in the refugee camps tied to a palm tree or to a camel? ....

In fact, some Spanish families are profiteering from the tragic situations of Sahrawis to seize some children, and the Spanish courts are actually examining similar cases involving other Sahrawi children of different colors and races. How are we to describe this reality?

The Sanchez family is also using material temptation to manipulate Saltana's instinctive thinking, so that she will continue to wish to live with them, even if this requires expressing disaffection towards her mother …. Saltana will one day wonder why she was the one to be enslaved while all her brothers and sisters were living in liberty in the camps, and two of them have already benefited from the summer vacation program and are still at an age entitling them to do so (the younger is already registered for the summer of 2008).

The real tragedy of Saltana, her mother and the whole family began in summer 2002. It has gone on for so long that the Polisario Front feels the heavy and solemn responsibility to help this poor family recover their normal status and family relations and overcome the injustice and deprivation they face. We shall spare no efforts … to help [Ms. Knana] win back her daughter, who has the right to return to her mother and family. What matters for us is that the girl should return to live with her mother wherever she wants: in Spain, in the camps or elsewhere….

We can provide you with Knana Salek's telephone number in Murcia, if you find it appropriate and if the concerned party agrees, so that you can see for yourself that El País' article had nothing to do with the truth….

Sincerely,

Ed-Daf Hamada Selma

Minister of Justice

Appendix 5: Letter from Human Rights Watch to SADR Authorities

April 1, 2008

President Mohamed Abdelaziz

The Presidency, Rabouni Camp,

Sahrawi Arab Democratic Republic

Tindouf Wilaya

Algeria

Dear President Abdelaziz,

Human Rights Watch thanks you for your response of March 1 to our letter of February 8, 2008.

Our letter informed you that we were also preparing this second letter, which solicits additional information with respect to human rights in Polisario-administered areas. As with our February 8 letter, we hope that you will respond substantively to the questions it contains, so that we may reflect your government's views in the report that Human Rights Watch intends to issue. We will be able to do that if your response reaches us by April 22, 2008.

Freedom of expression and association

According to our information, in November 2005, authorities dismissed Yahya Mohamed Salem and Ahmed Badi Mohamed Salem from their positions at the Ministry of Interior, allegedly for criticizing the Polisario in articles published in the independent newspaper, The Sahrawi Future, on whose editorial board they sit. We would appreciate any information your office can provide about the dismissal of these two men from their government jobs, allegedly in response to their work with this newspaper.

We have also been informed that Polisario authorities prevented the group Khat ech-Chahid from holding meetings in the refugee camps in 2004. Mahjoub Salek, a spokesperson for this group who lives in Spain, told Human Rights Watch that he helped form Khat ech-Chahid in October 2003. Since that time, Salek says, the Polisario has refused to authorize an inaugural Khat ech-Chahid congress in the refugee camps, explaining, says Salek, that such a congress "is not foreseen in the political action plan of the Polisario." Another former member of Khat ech-Chahid also told us that the Polisario had twice refused to allow the group to hold meetings in the camps in February and August 2004. Salek told Human Rights Watch that while no one has been arrested for being part of the movement, the security forces of the Polisario monitor members of Khat ech-Chahid, and that he himself fled the camps on about February 27, 2006 during his last visit there, fearing for his safety after trying to organize a meeting of Khat ech-Chahid.

We welcome information you can provide regarding the allegations made by Mr. Salek that authorities blocked efforts by the Khat ech-Chahid organization to hold meetings in the Tindouf camps, specifically in February and August 2004 and February 2006. If authorities have blocked gatherings by members of Khat ech-Chahid we would be grateful to know the legal basis for such measures, and also whether there are any legal proceedings pending against Mr. Salek or restrictions on his movements.

We note that according to the Penal Code of the SADR, participating in an unarmed assembly "that might affect public safety" is punishable by from one to five years' imprisonment (Article 54).Calling for an unarmed assembly "that might affect public safety," whether through speeches, writings, or publications, is punishable by from two months' to one year's imprisonment (Article 56).

International human rights law guarantees freedom of assembly. It does permit authorities to restrict the exercise of these rights in the interests, inter alia, of public safety, but only insofar as is absolutely necessary. The African Charter on Human and People's Rights states, "The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others" (Art. 11). Because the Penal Code's standard for restricting unarmed public gatherings that "might affect" public safety is very broad, and could easily lend itself to excessive restrictions on the right to freedom of assembly, we would appreciate knowing how your government has interpreted and applied Articles 54 and 56 in a way that does not violate the right to freedom of assembly.

Prison conditions

With respect to prison conditions, we thank Polisario officials for allowing us to visit er-Rachid prison, near Rabouni camp, during our research visit in November 2007. Polisario officials described this facility to us as the sole prison presently holding male prisoners, both civilian and military, in the refugee camps. While the circumstances of the visit did not permit us to conduct a systematic inspection of the facility, we nevertheless were concerned by the physical conditions in the solitary punishment cells there. By our measurements, the solitary punishment cells we visited were 1.5 meters wide by 2 meters long. The walls were moist and crumbling. We were told that prisoners could be held in these cells for a maximum of twenty days. Even if inmates are allowed to leave these cells for extended periods during the day, we believe they are not fit for human habitation and were concerned to find least one inmate residing in these cells who was visibly in poor health.

We urge you to investigate the conditions in these punishment cells and welcome information you can provide to show what measures the Polisario has taken to ensure that every prisoner is housed in conditions that meet the criteria spelled out in the UN Standard Minimum Rules for the Treatment of Prisoners, which include, among other things, the requirement that "sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals" (Rule 22.2).

During our visit Justice Minister Hamada Selma told us of a "protective" facility for holding women with children born out-of-wedlock. He described it as a center intended for the protection of the women and their children from "crimes of honor" and told us that in at least one case a woman had killed an out-of-wedlock child to protect herself from social pressure. Minister Selma mentioned that a judge could confine a woman in this center without her consent if the judge determined her to be under threat.

We would appreciate learning: the legal basis for such detention and whether safeguards are in place to ensure that women and children in these protection camps will not remain in custody indefinitely; the circumstances under which women leave the camp voluntarily; and whether any persons have been arrested or prosecuted for threatening to harm female relatives who became pregnant out-of-wedlock.

Moroccan prisoners of war

The Polisario held more than 2,100 Moroccan prisoners of war in Tindouf, releasing the last of them in 2005. The releases came after sustained pressure by the international community, including the United Nations and the International Committee of the Red Cross, which maintained that the Polisario should have released all of the prisoners of war it was holding upon the implementation of a cease-fire in 1991, pursuant to Article 118 of the Third Geneva Convention, which states, "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

Many of these prisoners of war allegedly suffered severe mistreatment at the hands of the Polisario while in custody. A 2003 report by the France Libertés Foundation (Rapport, mission internationale d'enquête, Les conditions de detention des prisonniers de guerre marocains détenus à Tindouf, Algérie http://www.mission-maroc.ch/pdf/Sahara/RapportPOWFRanceLibertes.pdf ), included testimony by Moroccan prisoners of war who say that the Polisario subjected them or other POWs to forced labor, torture, summary execution, and other mistreatment, in violation of the Third Geneva Convention.

We understand that the Polisario responded in writing to the findings contained in France Libertés' report but have been unable to locate that response.

Many of the abuses against the prisoners of war that are alleged in that report would constitute grave breaches (war crimes) as enumerated in Article 130 of the Third Geneva Convention. Article 129 requires High Contracting Parties "to provide effective penal sanctions for persons committing, or ordering to be committed grave breaches." While the Polisario is not a High Contracting Party, it submitted in 1975 to the Swiss Federal Council a Declaration of Implementation of the Geneva Conventions of 1949, following the procedure established for non-state entities.

We would welcome information about any investigations the Polisario conducted into allegations of the mistreatment of Moroccan prisoners of war in their custody between 1976 and 2005, and specific information about any sanctions imposed on Polisario officials or security agents for the mistreatment of prisoners of war.

Mistreatment in the 1970s and 1980s of suspected dissidents and Moroccan agents

We also wish to raise with you reports that, apart from the Moroccan prisoners of war, the Polisario mistreated persons it accused of being pro-Moroccan agents during the 1970s and 1980s.The Polisario is alleged to have subjected some of these individuals to torture, prolonged detention without charge or trial, forced disappearances, and summary execution. We have interviewed persons who have stated they were held for years without trial and tortured by Polisario forces in the late 1970s and 1980s and found their testimony to be credible.

To take but three examples, Mohamed Choueiar Ma'rouf, born 1958 and residing in the city of El-Ayoun, alleges that the Polisario imprisoned him without trial from 1975 until 1985. Mohamed el-Kabch, born 1956 and residing in Assa, alleges that the Polisario imprisoned him without trial from 1975 until 1989. Salem Sellami, born in El-Ayoun in 1958 and now residing in that city after living until 2006 in the Polisario-run camps, alleges that the Polisario imprisoned him without trial from 1977 until 1980.

Mohamed Choueiar alleges that Polisario interrogators burned his body and hammered nails into his wrists and ankles in order to force him to confess to spying for Morocco. His wrists bear scars that he says were the result of this torture.

Mohamed El-Kabch alleges that Polisario interrogators beat him with cables on the back and burned his lips and back with a lighter, in an effort to coerce him to provide the names of "Moroccan spies." At other stages, el-Kabch says he and other prisoners were forced to pace back and forth all night long and guards beat those who stopped walking. Later, el-Kabch was part of a brigade of prisoners obliged to build Er-Rachid prison under harsh conditions. During that period, authorities continued to beat prisoners with cables during periodic interrogation sessions.

Salem Sellami alleges that Polisario interrogators tortured him in order to coerce his confession, at a time when he says his tribe, the Sellam, was engaged in a dispute with the Polisario. Sellami says that interrogators tied his wrists with cables each night from sunset to sunrise. His wrists bear scars that he says are the result of this shackling.

We understand that Polisario officials have at various times acknowledged excesses and abuses committed by the Polisario against alleged pro-Moroccan agents. We invite you to provide specific information showing the extent to which the Polisario has investigated these allegations, including in the three cases outlined in the preceding paragraphs, the findings of such investigations, the form[s] that any acknowledgement of responsibility has taken, the compensation (if any) awarded to victims of human rights abuses from this period, and the sanctions (if any) that have been imposed on any perpetrators.

Constitutional Guarantees of the Political Supremacy of the Polisario

The SADR's Constitution provides that "until national sovereignty is achieved, the Polisario Front will remain the political framework which unites and politically mobilizes Sahrawis, to express their aspirations and their legitimate right to self-determination and independence, and to defend their national unity and to complete the construction of the sovereign Sahrawi state." The International Covenant on Civil and Political Rights in Article 25 affirms the right of persons "to take part in the conduct of public affairs, directly or through freely chosen representatives." The African Charter on Human and People's Rights guarantees that "Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law" (Art 13.1).

Please explain how this right can be reconciled with the SADR Constitution, which names the Polisario Front as the sole legitimate political framework and does not guarantee the right of persons to create political entities outside of that framework. We would appreciate information on whether the SADR government permits any political entities that oppose the Polisario or its current leadership to organize and function inside the area under its control.

Freedom of Tindouf Camp Residents to Definitively Leave the Camps

Finally, we would like to ask for clarification as to the procedures that refugees residing in the camps need to follow if they decide to leave the camps and return to live in Moroccan-administered areas of Western Sahara.

Polisario officials told us that they place no restrictions on the freedom of camp residents to leave the camps, including to travel to Moroccan-administered areas. However, our interviews with many Sahrawis who left the camps to settle in the Moroccan-administered areas between 2006 and 2008 suggest that while many find a way to make this journey, camp residents are convinced that they must disguise their intentions if they wish to move permanently to the Moroccan-administered areas. They told us that they believed that the Polisario authorities would prevent their travel if their intentions became known. To dispel suspicions, they kept their ultimate destination secret, left most of their belongings in the camps, avoided traveling in the company of large numbers of family members, and told Polisario security officers at checkpoints that they were merely traveling to Mauritania for family or business reasons.

Thus, while the Polisario's stated policy may be that every Sahrawi residing in the camps is free to travel anywhere he wishes, our impression is that camp residents perceive Polisario policy in this regard in a far more restrictive fashion.

We would be grateful if you could state Polisario policy on the freedom of residents to leave the camps permanently and also the measures the Polisario has taken, or plans to take, in order to ensure that persons under its jurisdiction know their rights with respect to leaving in order to re-settle in Moroccan-administered areas.

What formalities do the Polisario and Algerian authorities require of camp residents who wish to leave the camps definitively and take with them their families and belongings? We would welcome any statistics you have on the numbers of camp residents who left the camps in recent years, and how many of these have settled in areas under Moroccan administration.

Thank you for your attention to these questions, and for sending us your responses by April 22 so that our report will be able to reflect them. We are addressing to Moroccan authorities a similar letter soliciting information about human rights concerns we have with respect to the area of Western Sahara under their administration.

Sincerely,

Joe Stork

Acting Director, Middle East and North Africa Division

Human Rights Watch

Appendix 6: Response from SADR Authorities to the Letter of Human Rights Watch of April 1, 2008

(Translated from Arabic by Human Rights Watch)

The Sahrawi Arab Democratic Republic

Ministry of Justice

Ber Lehlou, May 6, 2008

To Mr. Joe Stork, Deputy Director, Middle East and North Africa, Human Rights Watch:

I wish first to thank your venerable organization for its concern with human rights in the world and in Western Sahara in particular. I also wish to deliver to you the response of the Sahrawi authorities to the letter you sent to His Excellency President Mohamed Abdelaziz, dated April 1, 2008.

The Sahrawi authorities received your letter with considerable interest. Because we strive for the greatest transparency possible, we offered through the representative of the Polisario Front in Washington DC, and confirmed in New York through our coordinator with MINURSO, our invitation to you to visit us anew, especially given that most of the content of your letter relates to issues that were not discussed in your previous visit. We think this would be an important step to determine the whole truth …. We therefore express our regret that you could not conduct a second visit to examine in the field the issues you raised in your letter.

Freedom of Expression and Assembly

Regarding the claim referred to in your letter that "Yahya Mohamed Salem and Ahmed Badi Mohamed Salem were dismissed from positions in the Interior Ministry in November 2005," the proper authorities have clarified that these two persons never worked at the Sahrawi Interior Ministry. The events in question did not occur in 2005 as mentioned in your letter. Our investigation has revealed that:

-Mr. Ahmed Badi Mohamed Salem was born in 1980 in the Sahrawi refugee camps. His mother is LalaBebeeh Ahmadi. He received a Bachelor of Arts degree in literature from Jijel University in eastern Algeria.

-Mr. Yahya Mohamed Salem Embarek Al-Hissane was born in 1979 in the Sahrawi refugee camps. His mother is Ahdidihim Lamine Mohamed. He completed the second year of high school.

Both men were employed by the Sahrawi Ministry of Information, where Mr. Ahmed worked for about nine months until mid-2007 in the National Television Project. As for Mr. Yahya, he joined the Provincial Radio Network of Aouserd in 1999, and in 2000 joined the National Radio Network. In 2006 he worked three months in the National Television Project.

According to the information available to us, Mr. Ahmed Badi was dismissed for professional reasons, but he claims that it was arbitrary. As for Mr. Yahya Mohamed Salem, according to the same information, he left the organization by his own choice.

Presently, Mr. Ahmed Badi works with the organization Landmine Action, a non-governmental organization based in Britain that works for the removal of land mines from the liberated lands of the Saharan Republic. Mr. Yahya Mohamed Salem works as an official in the department of information at the General Union of Labor of es-Saguia el-Hamra and Oued edh-Dhahab (the labor union that is part of Sahrawi civil society). Contrary to the mentioned allegations, their departure from the Ministry of Information was not a measure taken in response to their criticism of the Polisario in articles published in the newspaper El-Mustaqbal es-Sahrawi (The Sahrawi Future).

Moreover, the current director and the founder of El-Mustaqbal es-Sahrawi, Mr. Saïd Zarwal, in tandem with his work at the newspaper, works also at Free Sahara, the official newspaper of the Ministry of Information.

Regarding what you raised regarding the so-called Khat ech-Chahid and the allegations raised by Mahjoub Salek, we inform you of the following:

We have no information pertaining to Khat ech-Chahid other than what appears on Internet sites and in Moroccan media outlets. We have never noticed any material presence of it among the people in the Sahrawi refugee camps.

Mahjoub Salek, who is of Sahrawi nationality, worked in the Sahrawi National Radio. He was never prohibited from expressing his opinion or participating in Polisario meetings and provincial conferences, the last of which was the eleventh conference of the Front, held in the city of Tifariti, in liberated Sahrawi land, in October 2003. He chose to stop working for Sahrawi institutions, and currently moves between Spain and Morocco.

After he announced the so-called Khat ech-Chahid in 2004, he visited the Sahrawi refugee camps on several occasions, most recently in February 2007 – and not in 2006, as stated in your letter.

After investigating, we found no support for anything in the statements that you attributed to him. His allegations are unfounded fabrications. He was neither followed nor pursued in any way. Should you have solid information in this regard, we are ready to receive it and investigate.

As for articles 54 and 56 of the Sahrawi Penal Code, which refer to unarmed assemblies, we wish to inform you of the following:

Your letter referred to an, "unarmed organization that might affect public safety according to article 54 of the Legal Code…" This article does not include the idea of an organization at all; rather the term that it uses is "assembly."

The concept of public order is subject to standards that are accepted by comparative legal jurisprudence, where the concept is measured on the basisof these standards. These are the very standards that the Sahrawi judiciary uses when explaining and interpreting this concept, which can be summed up as infringing on the freedoms of citizens, disrupting the normal functioning of the institutions built to serve them or inflicting damage on these institutions, or threatening the physical safety or public health of citizens. Its goal is above all to protect citizens from any action that can threaten public tranquility and safety.

The Sahrawi state refrains from intervening in peaceful assemblies of a political, social or organizational character, provided that they do not threaten public tranquility, in accordance to the constitution and applicable laws of the Sahrawi Republic, and within the requirements outlined in the African Charter on Human and Peoples' Rights, especially the paragraph in Article 11 that clarifies the limits of the exercise of the right to assembly, and the right conferred upon the state to take measures to deter attempts that threaten "interest of national security, the safety, health, ethics and rights and freedoms of others."

In past years, public gatherings took place in front of official administrative buildings. None of these was dispersed, and no one was subjected to any kind of measures because of her/his participation in them.

Prison Conditions

Despite a serious lack of resources, the Sahrawi state makes every effort to place every legally convicted detainee in appropriate detention centers that respect international standards.

Abderrahmane prison, the prison that you visited – not er-Rachid prison, as you called it in your letter – was built recently. All of its inmates were detained according to the law. We have no political prisoners or prisoners detained for their opinions. And we acknowledge your concern regarding the conditions of solitary confinement cells and will address this issue in accordance with the applicable international standards. The prison has an infirmary, a resident nurse, and a doctor who periodically visits inmates who are sick. All emergency cases are transferred to national hospitals ….

Concerning the subject of mothers with children born out-of-wedlock, this involves the criminalization of acts of adultery that come into public view, which undermines public ethics according to the morals, traditions and religious teachings in our society. All this is specified in the Penal Code in the special section on familial crimes and public morals, especially articles 169 and 170 and the articles that follow.

Between one and five years, as provided by Article 170 of the Penal Code, is the range of time that a judge can impose, depending on the circumstances surrounding each case. Judges typically sentence [defendants] to a maximum of two years in prison, which is seen as the minimum amount of time necessary to enable a mother and her child to reintegrate into society. The woman will be required to serve her time in a women's detention center, just as her male partner will serve his in a detention center for men.

This female center is called the Center for Maternity Assistance, because it attends to the physical and emotional health of the woman and the health of her child, both before and after birth, and protects both of them from possible revenge attacks. Detainees also undergo health, orientational, and instructional programs to help them move on from their difficult circumstances. Generally, the rate at which these cases occur is between three and five per year.

Prisoners of War

From the beginning of the Moroccan incursion into Western Sahara, the Polisario Front has been committed to unilateral adherence to implementing the provisions of the 1949 Geneva Conventions. [Moroccan] prisoners of war received humane treatment throughout the continuation of difficult circumstances experienced by the Sahrawi fighters and refugees. The International Committee of the Red Cross was kept informed regularly about these prisoners, and was permitted to visit and interview them regularly. In most cases they were accompanied by a medical team to assess health conditions. This program continued until the unilateral release of the last remaining group of prisoners in 2005.

The claim that the Polisario Front was obliged to release Moroccan POWs at the time of the cease-fire contradicts the substance of the agreement that both parties signed, under UN auspices in 1991. According to that agreement, the parties would exchange POWs during the transition period. This was reaffirmed in the Houston Agreement of 1997 and in the Baker Plan, which the UN Security Council approved in 2003.

Therefore, the blame for this falls on the Moroccan Government, which obstructed the organization of a referendum, and on the UN for not assuming its responsibility with regard to implementing the agreement.

In spite of this, the Polisario Front released, on several occasions, hundreds of Moroccan POWs, as was the case, for example, during the mediation by the former Italian Premier Giulio Andreotti in 1989, as well as during the mediation initiated by the former personal envoy of the UN Secretary- General, James Baker, in 1997. But acting bizarrely and inhumanely, the Moroccan Government refused to receive her own sons, and some of them died before they could see their families again.

Concerning the fabricated allegations made by two employees from the Fondation France Libertés, the Polisario Front refuted at the time these flimsy allegations in a detailed report, which is attached to this letter.

We were very much hoping that your organization would address the issue of Sahrawi POWs in the custody of the Moroccan government, which denies their existence, and who hid them from the International Committee of the Red Cross, but later had to admit it was holding them. It released a few who had been experiencing the worst physical and emotional conditions. Morocco still denies the existence of up to 150 current POWs.

Detention during the 1970s and 1980s

Concerning detentions during the 1970s and 80s, this was the era of a fierce war of self-defense that the Sahrawi people plunged into when they confronted harsh circumstances with limited resources and inchoate institutions; when they faced major difficulties in education, health, nutrition, and housing, a lack of expertise, and an absence of laws to regulate the various aspects of life. During that era, Morocco's intelligence apparatus sought to destabilize and defeat from within the Sahrawi resistance.

In this context, Sahrawi collaborators were used to infiltrate our circles, collect intelligence, and conduct psychological warfare, sabotage, and assassinations. As a consequence, a number of individuals who were involved, or suspected of involvement, in these activities were detained.

In 1988, following the release of some detainees, it was revealed that some violations and ill-treatment had been perpetrated against some of them. In light of this, the director of Sahrawi Security was dismissed, and some substantial amendments were enacted within the [security] apparatus and within the detention system, including the closure of the er-Rachid prison, which was converted into an automotive repair shop. This issue triggered a comprehensive discussion, which culminated at the seventh conference of Polisario Front held in Sa'ifa in 1989.

The Seventh Conference unanimously approved an internal document, which includes:

• acknowledging the violations that took place, issuing an apology to the victims and their families, and issuing a comprehensive amnesty and releasing all detainees.
• exonerating all those injured and aggrieved, securing their return to their places of employment, considering their years in prison as years of service, committing to making reparations, material and moral, based on the rules that apply in the situations of war injuries and victims of war.
• establishing a law governing prisons and putting in place mechanisms that allow monitoring and punishing abuses, to the extent that this is possible in this environment.
• forming a human rights monitoring committee.

And indeed, the Executive Committee (the supreme leadership of the Polisario Front, at the time) took practical measures to implement the decisions of the Seventh Conference within the framework of strengthening national reconciliation. The human rights monitoring committee was established, headed by the prime minister, and went right to work, documenting and resolving 318 cases. It submitted a review that was adopted by the Eighth Conference of the Front in July 1991.

The conference also took other important decisions relating to the establishment of a judiciary and setting forth a list of the basic citizens' rights under the Constitution. The conference clarified basic responsibilities of the national institutions, especially the Sahrawi Parliament, strengthening its legislative powers. Within this framework a national committee was established to strengthen the judiciary in terms of its structures, laws and authority.

To address the cases specified in your letter, we wish to inform you of the following:

Regarding Mohamed Choueiar Ma'rouf, if he is the same person who is known to us as Mohamed Mouloud Ali es-Saïd, he was born in 1958 to Ms. Ishaba Ramadan Hamadi. He entered Western Sahara in 1974, as part of a group that worked for Morocco under the name "the Front of Liberty and Unity (FLU)." Spain arrested the group and he was imprisoned in the region of Aqlibiyat el-Foula, in the southern Western Sahara. After his release, he enlisted in the Sahrawi army in 1975. He was arrested in 1977 on an accusation of spying for the enemy and preparing to desert. He was freed in 1985 and, according to the information available to us, never submitted any complaint to the committee for human rights that was established by the Polisario Front's Seventh Conference. Thus, we have no evidence to support his claims of being subject to ill-treatment during the time of his detention. He then entered the Kingdom of Morocco in June of 1990 and, according to our information, works presently as an agent for Moroccan Intelligence.

Regarding Mohamed El-Kabash, born in 1956, if he is the same person known to us as Mohammad Walad Nafi' Walad Embarek, his nickname is "Kabash" and he was born in 1954. His mother is Manina Ali Embarek Bouna'ma. He too belonged to the Front for Liberty and Unity (FLU), and the Spanish also imprisoned him in Aqlibiyat el-Foula in 1974. He joined the Sahrawi army in 1975. In 1977 he was apprehended and charged with spying for the enemy and planning to desert.

Freed in 1989, Kabash was received by the Human Rights Committee on August 15, 1991. He complained of being ill-treated during his detention and denied all allegations against him. The committee opened a case file and he was registered on the list of recipients of reparations. His specific demands for employment either as a mechanic or in health relief were noted, but he left to Morocco in 1992.

As for Salem es-Sellami, if he is the person known to us as es-Sellami Embarek el-Jamani, he was born in 1958 to Ms. Fatima La'bid Sha'ban. He enlisted in the Sahrawi army in 1974, was apprehended on the Moroccan-Sahrawi border in 1977 as a fugitive aligned with the enemy. He was carrying an MAS-36 weapon. Released in 1980, es-Sellami remained in the city of Tindouf, where he worked as a butcher. We have not had any communication with him since that time and he did not come before the Committee on Human Rights.

Constitutional Guarantees of the Political Sovereignty of the Polisario Front

The Polisario is a broad front that unites all who defend the inalienable right of the Sahrawi people to self-determination and independence. Much of the Sahrawi population under Polisario Front administration live as stateless persons outside their state, lacking stability and access to the wealth of their country. The United Nations has not yet assumed its responsibility and commitment to organize a referendum on self-determination, while the Moroccan government continues to stubbornly persist in seeking to impose its de facto occupation of Western Sahara.

While implementing the freedom to form parties and political associations is obviously guaranteed after independence, no legal, administrative or political restrictions exist at present that prevent citizens from exercising their rights to criticize, assemble, express their opinions, and defend their positions. The Sahrawi parliament, as an elected national entity, practices its legislative and monitoring duties and has previously approved a vote of no confidence against one government.

The Sahrawi legislature guarantees to all citizens the right to freely participate in running the public affairs of their country, either directly or through representatives, in accordance with Article 20 of the SADR constitution, which states that "elected councils are the cadre in which the people express their will and monitor public authorities." Article 33 provides "every citizen who fulfils the legal requirements the right to elect and be elected."

To remind you again, the conflict is between an oppressed and dispersed people who seek to enjoy their legitimate right to self-determination and independence, and an occupation force that denies them, unjustly and belligerently, this sacred right …. [T]he Front accepted that the referendum should include options other than independence, i.e. integration and autonomy, and that every citizen has the right to defend any of these choices. Moreover, the Polisario Front declared that it will accept the result of a transparent democratic referendum, irrespective of what it is….

Freedom to Leave the Camps

The Sahrawi Refugees arrived on Algerian soil in 1975, fleeing the violence of the Moroccan occupation. In Algeria they found both hospitable land and generous people who permitted them to settle on a part of their land without any interference….

Sahrawi refugee camps are not detached from the rest of the world, but are rather visited by tens of thousands of people (40,000 over the past four years), representing different ages, nationalities, as well as from different sectors including international figures, journalists, researchers, and families and members of medical delegations, among others. An average of nearly 20,000 persons travel each year from the camps to other regions (children on school trips, training, medicine, special purposes, etc.). In addition, the family visit program between Sahrawi families across the Moroccan separation wall has included so far more than 5,000 people.

This is in addition to the permanent presence of international organizations in the camps, like the UNHCR, which includes employees responsible for providing protection to the refugees, and the World Food Organization, as well as scores of non-governmental organizations.

We think that your visit to the camps will help you assess reality and verify the truth regarding the claims that you receive. We want to assure you that the Sahrawi refugees are free; they came to the camps by their own free will, and they are free to leave if they so wish. There are no legal or administrative measures that would prevent their departure. Algeria has never intervened in this issue. In this regard we defy anyone, individual or organization, including the UNHCR, to present the name of a person who is prohibited from traveling to the Sahara under Moroccan occupation, or to identify a sheep, a cabinet, or a tent that a departing owner was prevented from taking with him….

With all regard and respect,

Ed-Daf Hamada Selma

Minister of Justice for the Government of the Sahrawi Republic

Appendix 7: Letter from Human Rights Watch to Algerian authorities

Note: Despite numerous efforts to elicit a response, Human Rights Watch received no response from Algerian authorities to this letter.

Washington, le 4 avril 2008.

Son Excellence Monsieur Amine Kherbi

Ambassadeur

Ambassade de la République Algérienne Démocratique et Populaire

2118 Kalorama Road, NW

Washington, DC 20008

Monsieur l'Ambassadeur,

Human Rights Watch prépare actuellement des rapports sur les droits humains au Sahara occidental. Depuis novembre dernier, nous avons effectué des visites tant dans les zones administrées par le Maroc que dans les camps de réfugiés administrés par le Front Polisario près de Tindouf, en Algérie. Le dernier gros rapport que nous avons publié sur ce sujet remonte à 1995 (Keeping It Secret: The United Nations Operations in the Western Sahara, http://www.hrw.org/reports/1995/Wsahara.htm).

Comme nous avons coutume de le faire lorsque nous préparons des rapports, des courriers ont été adressés aux autorités du Front Polisario ainsi qu'aux autorités marocaines pour porter à leur connaissance quelques-unes de nos préoccupations et pour les inviter à nous fournir des informations afin que leurs points de vue puissent être reflétés dans nos rapports.

Nous souhaiterions également solliciter des informations de la part des autorités algériennes en ce qui concerne la situation des droits humains affectant les personnes qui résident ou sont consignées dans des camps dirigés par le Front Polisario depuis leur installation sur le sol algérien en 1976.

Les autorités du Front Polisario nous ont fourni une copie de la Constitution de la RASD et du code pénal et nous ont informés que les Sahraouis résidant dans les camps administrés par le Front Polisario étaient soumis aux lois et institutions judiciaires de la RASD. Auriez-vous l'obligeance de nous expliquer si les réfugiés sahraouis présents sur le sol algérien sont soumis aux lois algériennes ainsi qu'aux autorités judiciaires et aux forces de l'ordre algériennes, et si tel est le cas, quand et comment ? Si différentes lois sont effectivement appliquées dans les camps administrés par le Front Polisario, comment les autorités algériennes garantissent-elles la protection des droits humains de toutes les personnes se trouvant dans lesdits camps ?

Vous êtes sans nul doute au courant des allégations selon lesquelles les autorités du Front Polisario auraient commis diverses violations des droits humains et du droit humanitaire sur le territoire algérien depuis l'établissement des camps. Ces présumées violations comprennent la détention illégale, sans procès, de dissidents et de personnes soupçonnées d' « espionnage», la torture et l'exécution sommaire de personnes en détention, la détention de prisonniers de guerre marocains jusqu'à quatorze ans après la cessation des hostilités et par conséquent au mépris de la Troisième Convention de Genève, ainsi que des restrictions à la liberté de circulation des civils résidant dans les camps.

Le but de la présente n'est pas de vous apporter des preuves concernant certaines de ces présumées pratiques, ni d'insinuer que les violations qui ont pu avoir lieu sont plus graves que celles perpétrées par le Maroc ou , en quelque sorte, les excusent. Le bilan du Maroc en lamatière sera traité en profondeur par Human Rights Watch dans ses tout prochains rapports.

Notre but est plutôt d'inviter votre gouvernement à faire la lumière sur le rôle qu'il joue dans la sauvegarde des droits humains des Sahraouis résidant en territoire algérien, et dans leur protection face aux exactions qui seraient commises par des éléments du Front Polisario, lequel administre les camps avec l'approbation et le soutien financier du gouvernement algérien.

Nous serions heureux d'être informés des cas où les autorités algériennes ont agi pour protéger les droits humains des habitants des camps face à d'éventuelles atteintes perpétrées par les autorités du Front Polisario, où elles ont mené des enquêtes sur les allégations de violations des droits humains, et où elles ont réclamé des comptes aux autorités du Front Polisario pour de telles exactions.

Par ailleurs, nous invitons votre gouvernement à clarifier le statut des civils sahraouis résidant dans les camps administrés par le Front Polisario qui ne possèdent pas la nationalité algérienne et qui souhaitent se rendre ailleurs en Algérie ou dans des pays étrangers. Nous vous saurions gré de bien vouloir répondre aux questions suivantes :

(a) Quelles restrictions l'Algérie impose-t-elle à la liberté des habitants des camps de se déplacer hors de la zone de Tindouf?

(b) Si un habitant d'un camp souhaite traverser la frontière algérienne pour se rendre en territoire mauritanien, passe-t-il par un poste de contrôle frontalier algérien? Si tel est le cas, quelles conditions, si tant est qu'il y en ait, l'Algérie impose-t-elle à la personne qui cherche à sortir du pays de cette façon?

(c) Si un habitant d'un camp cherche à se rendre dans un pays autre que la Mauritanie pour lequel le demandeur doit obtenir des documents de voyage algériens, quelles procédures doit-il suivre pour demander lesdits documents? Nous vous serions reconnaissants de nous fournir des données statistiques récentes sur le nombre de Sahraouis résidant dans des camps qui possèdent des documents de voyage algériens.

(d) Quelles restrictions l'Algérie impose-t-elle à la liberté des habitants des camps de résider dans d'autres régions d'Algérie ainsi que de chercher et d'avoir un emploi dans d'autres régions du pays? Auriez-vous l'obligeance d'expliquer en quoi leurs droits en la matière diffèrent de ceux dont jouissent les citoyens algériens? Et en quoi diffèrent-ils, si tant est qu'il y ait différence, des droits d'autres étrangers ayant leur résidence habituelle en Algérie?

Un rapport de 2006 du Haut-Commissariat des Nations Unies aux droits de l'homme sur le Sahara occidental et les camps de réfugiés à Tindouf, document que l'ONU n'a jamais publié officiellement mais qui circule amplement, relève que «bien que les réfugiés [sahraouis] soient présents sur le territoire algérien, les autorités [algériennes] ont réitéré lors de réunions avec le chef de la délégation qu'en dépit de cette présence, la responsabilité par rapport aux droits humains et toute autre question qui y est liée incombait au Gouvernement de la RASD [République arabe sahraouie démocratique]».

Néanmoins, le rapport du HCDH continue en ces termes: «L'Algérie, le pays d'asile, est signataire des sept traités fondamentaux relatifs aux droits de l'homme, en vertu desquels elle a l'obligation de respecter et de préserver les droits garantis dans ces traités à toutes les personnes se trouvant sur son territoire. Elle est également signataire de la Convention de 1951 relative au statut des réfugiés (depuis 1963), de son Protocole de 1967, ainsi que de plusieurs traités régionaux relatifs aux droits de l'homme… [E]n tant qu'État partie à ces instruments, le Gouvernement algérien a l'obligation de veiller à ce que tous les droits stipulés dans ces instruments soient respectés pour toutes les personnes se trouvant sur le territoire algérien».

Nous vous serions reconnaissants de bien vouloir nous faire part de votre réaction par rapport à cette évaluation des responsabilités de l'Algérie en ce qui concerne les droits humains des personnes résidant dans les camps de Tindouf, et de répondre aux questions que nous posons dans le présent courrier.

Nous serons en mesure de refléter dans notre rapport final toute information pertinente que vous nous ferez parvenir pour le 1 er mai 2008.

Nous vous remercions d'avance pour l'attention que vous voudrez porter à la présente et nous tenons à votre entière disposition pour toute question ou tout commentaire que vous pourriez avoir.

Dans l'espoir de vous lire bientôt, nous vous prions d'agréer, Monsieur l'Ambassadeur, l'expression de notre très haute considération.

Joe Stork

Directeur exécutif par intérim

Division Moyen-Orient et Afrique du Nord

Appendix 8: Purported Manumission Document from the Tindouf Camps

Note: SADR authorities deny the authenticity of this document. See the "Allegations of Slavery" section of this report, above.

Translation

Sahrawi Democratic Arab Republic

Ministry of Justice and Religious Affairs

Aouserd Court of First Instance

Subject: Manumission

Mohamed Salem M'hamed Hilal, born June 15, 1951, with a national ID number 65197543, appeared before the court and declared the release from slavery of:

Mbarka Hamma M'hamed and her children

Mas'ouda Hamma M'hamed and her children.

He made this statement in complete conformity with Islamic law.

He signed this document before judges Buba Jalil Bachir and Mohamed Mahmoud Ammar and court clerk Hamad Sa'id.

Signed, Mohamed Salem M'hamed Hilal

Hamad Sa'id, court clerk