Background to the Western Sahara Conflict

Western Sahara covers 266,000 square kilometers of mostly arid land in north-western Africa. The territory stretches from Morocco's southern border south to Mauritania and reaches inland from its 1100-kilometer-long Atlantic coastline to the borders of Algeria and Mauritania.[15] Its largest city, with roughly 200,000 residents,[16] is El-Ayoun, near the Moroccan border. The native inhabitants of Western Sahara are the Sahrawi people, who speak Hassaniya, a dialect of Arabic that is also spoken in Mauritania.

The population of Western Sahara was estimated to be 393,831 as of July 2008,[17] a majority of whom are Moroccans who moved to the region since the territory came under Moroccan control.

Spain claimed the territory as a protectorate in 1884, and from a few outposts gradually extended its administrative control over the next 80 years.[18] In 1974, under pressure at the UN to decolonize, Spain agreed to conduct a referendum that would present the territory's inhabitants with the option of independence.[19] As a preliminary step, Spain completed a census of the territory's inhabitants in 1974 that put the number at 74,000.

King Hassan II of Morocco threatened to reject the referendum's results, asserting that the period of Spanish colonization had interrupted pre-existing Moroccan sovereignty over the territory, which would resume after Spain's withdrawal. Before Spain carried out the referendum, Morocco asked the UN General Assembly to refer the question to the International Court of Justice.

The Court's October 16, 1975 advisory opinion held that while Morocco (and Mauritania) had legal relations with the territory's inhabitants prior to the Spanish takeover, these did not amount to sovereignty and thus "were not of such a nature as might affect the application of … the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory."[20]

Immediately after the ruling, however, King Hassan II announced that the court had vindicated Morocco's claims. On November 6, 1975, he laid symbolic claim to the territory by launching a "Green March" of approximately 350,000 Moroccan civilians, some of whom walked southward from the Moroccan border into a 10-kilometer strip that Spanish soldiers had already vacated.[21] The Moroccan army entered the territory soon thereafter, formally partitioning it in 1976 with Mauritania, which also had asserted historical ties with the region. (Morocco claimed the northern two-thirds of the Spanish Sahara.) On November 14, 1975, Spain signed a tripartite agreement transferring some of its powers and responsibilities over Western Sahara to Morocco and Mauritania. It formally pulled out of the territory on February 26, 1976.

As Moroccan forces arrived from the north and Mauritanian forces arrived from the south, they encountered resistance from the Sahrawi independence movement known as the Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Polisario).[22] The Polisario had sprung up in 1973 in opposition to Spanish rule.[23] After Polisario strikes deep inside Mauritania forced that country to withdraw from the war in 1978, Moroccan troops, who had already seized control of the north of the territory, rapidly occupied the southern zone as well. Mauritania relinquished its claims to the territory in April 1979.

Beginning in January 1976, large numbers of Sahrawi refugees began moving east toward the Algerian desert around Tindouf, fleeing the Moroccan army's advances in Western Sahara and the Moroccan air force's direct attacks.[24] By October of that year, 50,000 Sahrawi refugees were living in eleven scattered camps in Algeria.[25] Others fled south to Mauritania.[26] Still other Sahrawis traveled from southern Morocco, northern Mauritania and western Algeria to join the refugees at the camps around Tindouf.[27] Beyond the first wave of refugees fleeing military attacks, others would continue to flee in subsequent years in the context of Moroccan operations that terrorized Sahrawi civilians through such means as arbitrary arrests, secret detentions and "disappearances."[28]

Polisario's leaders proclaimed the founding of the Sahrawi Arab Democratic Republic (SADR) on February 27, 1976. The Organization of African Unity admitted it as a member and dozens of countries recognized it. The UN does not recognize the SADR as a state. However, in 1975, the UN recognized the "mass ... support" of "Saharans within the Territory" for the Polisario Front, and has consistently addressedthe Polisario as a party to the conflict and involved it in negotiations. [29]

According to the SADR's constitution, the Polisario will remain the sole representative of the Sahrawi people until the achievement of national sovereignty over Western Sahara.[30] Polisario officials say that the Polisario is not a political party, but a popular front fighting for self-determination, and that the system of government will change upon independence.[31]

In 1991, a UN-brokered ceasefire agreement provided for a "UN Mission for the Referendum in Western Sahara" (known as MINURSO and established by Security Council resolution 690 of April 29, 1991[32]). The mission was to monitor the ceasefire and organize a referendum that would allow eligible Sahrawis to choose between independence and integration with Morocco.[33] In September of that year the Polisario and Morocco ceased active hostilities.

The agreement tasked MINURSO with deciding which persons would be eligible to vote on the future of Western Sahara, based on whether and for how long they had lived there. After vetting 198,000 applicants, MINURSO issued a list of some 86,000 eligible voters. The Moroccan government responded by collecting and submitting some 124,000 appeals, the vast majority of them on behalf of candidates deemed ineligible.[34] This confronted the UN with "the prospect of, in effect, having to begin the voter identification process all over again."[35]

Human Rights Watch observed in 1995 that "Morocco, which is the stronger of the two parties both militarily and diplomatically, has regularly engaged in conduct that has obstructed and compromised the fairness of the referendum process. In addition, a lack of UN control over the process has seriously jeopardized its fairness."[36]

In the face of these obstacles, the UN quietly backed away from the idea of a MINURSO-organized referendum, and none has taken place. Morocco, claiming the plan for establishing a voter list was impracticable, has since refused to accept any referendum in which independence is an option.[37] Meanwhile, it has sought an internationally acceptable solution that would ratify its sovereignty over Western Sahara.

Successive UN secretary-generals have assigned special envoys, including former US Secretary of State James Baker, to find a political solution to the Western Sahara conflict. However, none has been able to break the impasse. The Polisario continues to insist on a referendum that includes independence as an option. Morocco rejects this demand while proposing regional "autonomy" under its sovereignty.

The Polisario operates in two contiguous areas. In addition to the six refugee camps it governs in the Algerian desert,[38] it controls the sparsely populated 15 percent of Western Sahara that lies east of the "Berm." The latter is a series of Moroccan defensive earthworks and fortifications more than 1,500 kilometers long that splits the territory in two.

Inside the camps, Human Rights Watch did not observe an Algerian security presence; several informants said there was none. The Algerian military has a significant presence in the nearby city of Tindouf. As discussed above, Algeria insists that responsibility for human rights in the camps lies with the Polisario (see "Legal Framework applied in this report").

The population figure for the camps is disputed. The Polisario says it is 158,000.[39] The World Food Program (WFP) and the UN High Commissioner for Refugees (UNHCR) currently estimate the total population of the camps to be around 125,000.[40] Morocco alleges that these numbers are inflated and has urged the UN to conduct a new census.[41]

The sprawling camps are administratively divided into districts and subdistricts. The Polisario, as the sole governing authority of the SADR, administers a justice system, with a system of courts and prisons; local qadi's (shari`a law judges) have jurisdiction over personal status and family law issues.

Since 1976, Mohammed Abdelaziz has been the secretary general of the Polisario, having won reelection at each of the Polisario's general congresses. As secretary general, his position also comprises the roles of president of the SADR and commander-in-chief of the Saharawi People's Liberation Army (SPLA).

The United Nations recognizes its duty to uphold human rights standards in all its operations, including in Western Sahara.[42] Because it considers Western Sahara to be a "non-self-governing territory," the UN has a special obligation to protect the human rights of its residents. Yet, the UN's silence on human rights violations committed there, and the lack of on-the-ground UN agencies conducting human rights monitoring and reporting, contrast with the growing, if still limited, willingness of the organization and its Secretary-General to speak out for human rights. It also stands in contrast to the practice of integrating human rights monitoring into peacekeeping operations elsewhere in the world.

The UN maintains a permanent presence in the refugee camps in Tindouf and in Western Sahara. Yet the most prominent UN entity there, MINURSO, has no human rights mandate and conducts no ongoing human rights monitoring or reporting. Its mission has no formalized cooperation with the Geneva-based OHCHR.

The UNHCR has offices in both the Moroccan-controlled territory and the Tindouf refugee camps. The staff includes a number of protection officers who help MINURSO administer a program of visits between the two zones for families separated by the conflict. The UNHCR office in Tindouf also assists in the legal documentation of refugees, provides legal advice and training with regard to sexual and gender-based violence, and, in 2007, began training the Polisario police on international refugee law and human rights law.[43]

In 2006, the OCHCR dispatched a delegation to investigate the human rights situation in Western Sahara and the Tindouf camps. Although the UN never officially published its report, it is available on the Internet. The delegation concluded, with respect to the Moroccan-ruled territory:

[T]he Sahrawi people are not only denied their right to self-determination, but equally are severely restricted from exercising a series of other rights […] such as the right to express their views about the issue, to create associations defending their right to self-determination and to hold assemblies to make their views known.[44]

The delegation's visit to the Polisario-controlled camps around Tindouf was less conclusive:

[D]espite the level of cooperation extended to the delegation during its visit to some of the camps, it was unable to obtain sufficient information to draw extensive and well-founded conclusions with regard to the de facto enjoyment of human rights by the refugees in the camps.[45]

The report called for improved human rights monitoring in the camps.

MINURSO is the obvious candidate to conduct human rights monitoring in the camps and in Western Sahara. Although its original and eponymous mandate – to organize a referendum – has been stymied since 2000, its sizable locally-based staff, resources and long experience may make it the entity best placed to perform this function. MINURSO maintained, as of September 30, 2008, a total of 495 military and non-military personnel in the Moroccan-controlled area and in the Tindouf camps, at a cost of some $48 million per year.[46] In addition to monitoring cease-fire violations, MINURSO operates, together with UNHCR, the family visits program and other "confidence-building measures." The Security Council extended its mandate on April 30, 2008 through April 30, 2009.

The OHCHR has lobbied within the UN to assign a human rights mandate to MINURSO, highlighting the fact that MINURSO is almost the only peacekeeping mission that lacks a human rights component, according to OHCHR sources who asked to remain anonymous.[47]

The Security Council has regularly extended MINURSO's mandate, but some permanent members, such as France and Russia, have reportedly resisted proposals by some nonpermanent members, including Costa Rica, to expand the mandate to include reference to human rights.[48]

Morocco opposes giving MINURSO a human rights mandate, on the grounds that it would undermine "Moroccan sovereignty" over the area.[49] The Polisario says it favors giving MINURSO such a mandate.[50]

Polisario officials told Human Rights Watch that despite the absence to date of regular, on-the-ground UN rights monitoring, the thousands of foreigners who visit the Tindouf camps every year would surely detect any pattern of serious Polisario abuses. This argument is true only up to a point. First, access to the camps is not easy: they are located in a remote and militarized part of Algeria; foreigners cannot simply arrive at will and unannounced. Westerners must obtain entry visas to Algeria, which the government does not readily grant unless the Polisario endorses the application. There are no foreign media based in the camps or in their vicinity. Few if any of the foreigners in the camps are there to conduct human rights monitoring; nor are they specialized in such work.