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Stop Human Rights Abuses
Human Rights in Western Sahara and in the Tindouf Refugee Camps
December 19, 2008

Legal Framework Applied in this Report

Human Rights Watch takes no position on independence for Western Sahara, or on Morocco's proposal for autonomy for the territory under its sovereignty.

The situation in Western Sahara is an occupation under the laws of armed conflict. However, our main framework is that of international human rights law. Our chief concerns include violations of the rights of expression, association and assembly – all human rights law violations, not a matter of occupation law. Human Rights Watch considers Morocco responsible for upholding international human rights in Western Sahara because it claims sovereignty over the territory and applies the same Moroccan laws to the roughly 85 percent of the territory it controls as it applies throughout the kingdom.[2]

The UN classifies Western Sahara as a non-self-governing territory and does not recognize Moroccan sovereignty over it. Nor does it recognize the SADR as a state or grant it an official status with the UN.[3] The SADR is thus not a party to the core international human rights treaties. However, the Polisario, which exercises de facto governmental authority within the camps, has signed several regional human rights treaties as the SADR government[4] and has formally declared its adherence as a liberation front to the Geneva Conventions[5] and to a ban on the use of anti-personnel landmines.[6] With regard to the human rights issues that this report addresses, the Polisario, as the government of the SADR, has undertaken, under the African Charter on Human and People's Rights, to respect and protect, "without distinction of any kind such as race, ethnic group, color, sex … birth or other status" (Article 2), the freedoms of movement (Article 12), expression (Article 9), and assembly (11); to prohibit all forms of exploitation, degradation, and cruel treatment (Article 5); and to ensure the elimination of discrimination against women "and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions" (Article 18.3).

The Algerian government has steadfastly backed the Polisario, assisting it financially and diplomatically and allowing it to administer a large Sahrawi refugee population on its territory for more than three decades. Algeria has said the Polisario is responsible for ensuring the human rights of Sahrawis in the Tindouf refugee camps.[7] Such a position by a sovereign state does not conform to international law. As the 2006 OHCHR delegation noted,[8] notwithstanding Algeria's delegation of authority to the Polisario, the Algerian government remains ultimately responsible, according to its international legal obligations,[9] for the human rights of all persons in its territory,[10] including in the refugee camps around Tindouf. As a matter of state responsibility, actions by the Polisario within Algeria that violate Algeria's human rights obligations are attributable to Algeria itself, regardless of whether Algeria empowered the Polisario to exercise authority.[11] Accordingly, Algeria remains ultimately responsible for ensuring the rights of Sahrawi refugees on its territory, notwithstanding the Polisario's separate obligations in this regard.

As a party to the 1951 Refugee Convention and its 1967 protocol, Algeria is bound to respect the rights of refugees to freedom of movement within Algeria to the same degree as other aliens, and to issue travel documents to Sahrawi refugees for the purpose of travel outside Algeria – an obligation that it may limit only as "require[d]" by "compelling reasons of national security or public order."[12] Similarly, Algeria may not impose, for the protection of the national labor market, restrictive measures on the employment of Sahrawis who have been in Algeria for three years or more.[13] Protections afforded by Algeria's human rights treaty obligations are complementary to its obligations under refugee law, in particular where human rights law provides for stronger protection than refugee law.[14] Thus, Algeria is responsible for upholding, inter alia, the freedom of expression and assembly of Sahrawi refugees, as part of its obligations as a party to the International Covenant on Civil and Political Rights.

[2] The UN Office of the High Commissioner for Human Rights, in its unpublished report on Western Sahara, adopted an approach much like the one Human Rights Watch has taken in this report. The OHCHR said it would "evaluate the facts which occurred in the territory administered by Morocco on the basis of Moroccan laws and in light of Morocco's legal obligations entered into under the relevant international human rights treaties." The unpublished report continues, this "shall not be interpreted as constituting a position vis-à-vis the status of the territory according to international law or attributing any legitimacy to claims of sovereignty, but rather constitutes an evaluation of the de facto enjoyment of human rights by the people of Western Sahara." OHCHR, Report of the OHCHR Mission to Western Sahara and the Refugee Camps in Tindouf, Algeria, 15/23 May and 19 June 2006, www.afapredesa.org/index.php?option=com_content&task=view&lang=en&id=53 (accessed November 18, 2008). The UN Secretary-General has stated that the OHCHR transmitted the report "as a confidential document to Algeria, Morocco, and the Frente Polisario on 15 September 2006 [and] remains committed to treating the report as confidential." Report of the Secretary-General on the situation concerning Western Sahara, April 14, 2008, S/2008/251, http://daccessdds.un.org/doc/UNDOC/GEN/N08/297/22/PDF/N0829722.pdf?OpenElement (accessed November 18, 2008).

[3] Unpublished report of OHCHR Mission, para. 37.

[4] The Sahrawi Arab Democratic Republic has signed or ratified: the African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986 (ratified on May 2, 1986); the African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999 (signed on October 23, 1992); and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force November 25, 2005 (signed on June 20, 2006). See www.achpr.org/english/ratifications (accessed November 18, 2008).

[5] In 1975, the Polisario Front sent to the Swiss Federal Council a Declaration of Implementation of the Geneva Conventions of 1949. France Libertés, Report of 2003 Mission, p. 10. As well, "on 24 November 1981, the ICRC offered its services to both Morocco's King Hassan and the POLISARIO secretary-general Abdel Aziz, to visit the detainees held by the POLISARIO forces. The offer was sent in 1982 to the OAU Committee on Western Sahara chaired by President Daniel Arap Moi of Kenya. On 6 March 1982 POLISARIO accepted the ICRC offer as a mark of its will to respect IHL and ICRC activities." Churchill Ewumbue-Monono, "Respect for international humanitarian law by armed non-state actors in Africa," International Review of the Red Cross, vol. 88, no. 864, December 2006, www.icrc.org/Web/eng/siteeng0.nsf/htmlall/review-864-p905/$File/irrc_864_Ewumbue-Monono.pdf (accessed November 16, 2008).

[6] Polisario signed a Deed of Commitment under Geneva Call for Adherence to a Total Ban on Anti-Personnel Mines and for Cooperation in Mine Action, and destroyed 3,321 anti-personnel mines at the SADR's 30th anniversary in 2006. Reuters, "Polisario destroys mines in Western Sahara – group," March 3, 2006, www.genevacall.org/news/testi-in-the-press/rts-03mar06.htm (accessed November 18, 2008).

[7]"While the refugees are present in the territory of Algeria, the authorities reiterated during meetings with the Head of the delegation that despite this presence, the responsibility for human rights and any other related matters lies with the Government of the SADR." Unpublished report of OHCHR Mission, para. 39.

[8]Unpublished report of OHCHR Mission, paras. 39 and 40: "…The Government of Algeria is obliged to ensure that all rights stipulated in these [human rights and refugee treaties to which it is party] are upheld for all persons on Algerian territory. It should be underlined that UNHCR works directly with the Government of Algeria as the country of asylum/host government on all matters related to the Sahrawi refugee programme."

[9] On September 12, 1989, Algeria ratified the International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976.  Algeria has also ratified or acceded to, inter alia, theConvention relating to the Status of Refugees (Refugees Convention), 189 U.N.T.S. 150, entered into force April 22, 1954; Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967; the Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, as well as regional rights instruments.

[10] ICCPR Article 2. The Human Rights Committee has made clear that "States Parties are required by article 2, para.1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction." Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 10.

[11] Draft Articles 9 and 4, Responsibility of States for internationally wrongful acts, International Law Commission (2001), http://www.temple.edu/lawschool/drwiltext/docs/ILC%202001%20Draft%20articles.pdf (accessed November 18, 2008).

[12] Refugees Convention, Articles 26, 28.

[13]Ibid., Article 17(2)(a).

[14] "Refugee law does not supersede human rights law as lex specialis if the human rights norm offers more protection. […] Article 5 of the 1951 Convention […] reads as follows: "Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention." In 2003, Conclusion No. 95 of the Executive Committee of the United Nations High Commissioner's Programme explicitly acknowledged "the multifaceted linkages between refugee issues and human rights" and recalled "that the refugee experience, in all its stages, is affected by the degree of respect by States for human rights and fundamental freedoms": (No. 95 (LIV) – 2003) para. (k).