This paper will focus on the practical, in keeping with the spirit of this volume. I shall talk about Human Rights Watch's approach to Western Sahara in its latest report, address some criticisms of it, and explain how our approach complements the approaches taken by others who work for human rights in Western Sahara. The work that Human Rights Watch carries out in assessing Morocco's respect for international human rights law (IHRL) in Western Sahara can, for example, contribute to efforts by others who seek to use the instruments of international justice to hold Morocco accountable; our work can also pose hard questions in the face of Morocco's effort to present its proposal for autonomy for Western Sahara as a satisfactory implementation of the right to self-determination.
Three criticisms leveled against Human Rights Watch are:
1. Human Rights Watch should approach Western Sahara within the analytical framework of an occupation and international humanitarian law;
2. By treating human rights violations in Western Sahara like violations committed by Moroccan authorities elsewhere, Human Rights Watch is in some way recognizing Moroccan sovereignty;
3. Human Rights Watch should work on the right to self-determination and stress its centrality to the Western Sahara human rights problématique because the violation of that right is at the core of the problem and the source of the other human rights violations.
Human Rights Watch's basic methodology worldwide is, simply put, to "name and shame," that is, to carefully document and publicize instances where a government is violating its own obligations to respect international law and in so doing, to "shame" the government into curtailing those abuses. This works when a government is sensitive to its image domestically and/or internationally and will modify its behavior to avoid or reduce negative publicity. We believe that Morocco fits this description: it is proud of its record on human rights; to some extent its privileged relations with the United States and the European Union are based on its image as a leader in political reform in the Middle East and North Africa region.
Occupation
Human Rights Watch calls Morocco's presence in Western Sahara an occupation.[1] However, on the issues we have addressed, we find it most useful to invoke the rights of its population under IHRL. One reason is that Moroccan authorities claim to administer Western Sahara as, in their view, "a part of Morocco like any other," rather than as occupied territory. They apply Moroccan law to Western Sahara and administer it through the same administrative structures that are found in the kingdom proper.
IHRL gives us a more detailed standard against which to hold Morocco accountable than if we applied the law of occupation. The latter gives the occupier certain powers to restrict rights, for example, to censor and to detain persons without charge, to a greater extent than a state can do under international human rights law in non-emergency situations.
As our December 2008 report states:
"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]
With respect to the rights of freedom of expression, association, and assembly, Human Rights Watch and others have shown that the situation is far from normal when it comes to people's enjoyment of their right to peacefully advocate the opinion that Western Sahara is not Morocco, or the opinion that people there should have a right to vote on their collective future.
Documenting Violations of International Human Rights Law
According to the second above-mentioned criticism of our approach, the danger of focusing on Morocco's compliance with its obligations under international human rights law is that it (a) seems to recognize Morocco's sovereignty claims and (b) would leave no legal basis for concern if Morocco were ever to cease its IHRL violations in Western Sahara. According to this line of criticism, if the day ever arrived when there were no more complaints of torture and no more restrictions on the rights to freedom of expression, association and assembly, then Human Rights Watch would have nothing left to say on Western Sahara since we do not report on compliance with the right of self-determination.
First, Human Rights Watch states clearly and often that our reporting on violations of human rights in Western Sahara by Morocco in no way implies recognition of Moroccan sovereignty de jure. Our basic position is that those who act, or claim to act with government authority should be held accountable for human rights violations they inflict on the people they de facto rule, no matter whether they are a legally-recognized government or not. So we hold the Hamas authorities, who de facto rule Gaza, responsible for abuses there, and hold both Polisario and Algeria responsible for abuses in the Tindouf camps - Algeria as the legal authority over that territory, and Polisario as the de facto authority. We are on the record in support of human rights monitoring by the U.N. in Western Sahara.[3] When a referendum was still being organized, Human Rights Watch reported on the fairness of the process. We concluded in our 1995 report: "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 U.N. control over the process has seriously jeopardized its fairness."[4]
Second, there is little danger that the IHRL violations on which we focus will go away as long as the right to self-determination remains a live issue, since so many of those violations emanate from the efforts of Sahrawis to advance the cause of self-determination. It would be simplistic to charge that Human Rights Watch limits itself to treating the "symptoms" rather than the "cause" - i.e., non-implementation of the right to self-determination - since the two are so closely bound up together and not reducible to a cause-symptom relation.
The right to self-determination
With respect to the third criticism, self-determination is indeed a fundamental right, guaranteed by article 1 in both of the major UN human rights covenants. But there are many fundamental rights that do not come with clear guidance on how they should be implemented. Which peoples are entitled to exercise their right to self-determination in the form of establishing an independent state as opposed to ‘internal' self-determination? International human rights law does not yet provide clear answers.
Although the mandate of Human Rights Watch covers potentially the entire corpus of international human rights law, we do not work on each and every right. We tend not to work on the right to self-determination, and particularly when this concerns the right to ‘external' independence, because to take a position on how that right should be implemented in a given situation is a decision that is highly likely to be political. Were we to take positions on which peoples were entitled to full independence - Sahrawis? Chechens? Palestinians? -- we would no longer be able to appear as neutral when it came to our reporting on compliance by the parties to those conflicts with their human rights obligations. Perceived neutrality is central to our credibility and to our ability to marshal pressure on violators.
Morocco's Autonomy Proposal for Western Sahara
Morocco's proposal to resolve the conflict by granting "the southern provinces" limited autonomy under Moroccan sovereignty, formally introduced in 2007, provides an opportunity for heightened scrutiny of Morocco's human rights record in Western Sahara. Human Rights Watch takes no position for or against the autonomy plan, just as we take no position on independence for Western Sahara. But we do have a position on respect for the basic rights that people should enjoy under the present circumstances and in the future, whether they live in a fully independent state or in an autonomous region within Morocco.
Our reading of the current human rights situation leaves us skeptical as to whether the human rights situation will improve if Morocco's autonomy plan is implemented. While Morocco is more respectful of human rights today than it was 20 years ago, including in Western Sahara, one of the continuing taboos pertains to expressing opposition to Morocco's claim to Western Sahara. Thus while Sahrawis are freer today to criticize official corruption or poor governance, they are not free to dissent from the official view on the one issue that matters most to many of them - their political future.
When preparing our December 2008 report on Western Sahara, we asked Moroccan authorities whether implementation of the autonomy plan would involve revisions to laws prohibiting "attacks" on Morocco's "territorial integrity," laws that in effect criminalize peaceful speech and activities in favor of Sahrawi self-determination. The authorities responded clearly that implementation of the autonomy plan would not cause these restrictions to be lifted. "The autonomy proposal," they wrote, "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."[5]
There are reasons to fear that Morocco's repression of dissent on the issue would intensify once it granted autonomy, if Morocco adopted the view that, through its "concessions," it had liquidated the conflict and therefore there was less place for dissent than when the region's future was still a matter of contention.
More generally, a sober examination of Morocco's human rights record raises doubts about the substance of an autonomy that it can implement. An informal survey of autonomous regions in the world indicates that the more successful models of genuine autonomy are concentrated in countries that are ruled democratically, such as Spain and Germany. There appears little precedent to expect an autocratic government, with a human rights record as mixed as Morocco's, to implement a genuine regional autonomy.
International Justice
The work of Human Rights Watch, Amnesty International, and other groups on Western Sahara in the context of Moroccan de facto rule is relevant also when considering efforts to pursue accountability for serious crimes, whether at the International Criminal Court (ICC) or elsewhere. There is little dispute that Morocco perpetrated "disappearances" and other serious abuses on a large scale against Sahrawis in the 1970s and 1980s, and that the perpetrators of these abuses have escaped punishment.
At the same time, Morocco, alone among countries of the Middle East and North Africa, created a truth panel, the Equity and Reconciliation Commission, to acknowledge past abuses and to provide compensation and social rehabilitation for victims and for their survivors, including victims who are Sahrawi.
Were there ever to be an effort to hold Morocco accountable at an international level, Moroccan authorities would no doubt claim that international justice has no role to play because victims of grave human rights have effective remedies within the domestic justice system and/or have been offered compensation through the Equity and Reconciliation Commission (ERC).
Morocco is right on the procedure: for the ICC to assert jurisdiction, local remedies have to be shown to be exhausted or ineffective in delivering justice. On the facts, however, the matter is more complicated: it is an empirical question whether victims of grave human rights abuses have access to effective remedies within the domestic system. Both Human Rights Watch and Amnesty International have shed light on this question through their work on Morocco's justice system and ERC, including the types and the extent of remedies that it provided to victims.[6]
Of course, the matter is moot at present; Morocco has not ratified the ICC statutes, and no ICC action on Morocco is presently contemplated. There would also be strict time limits on any ICC involvement; normally only crimes occurring after a state's ratification come within the mandate of the ICC, and even in exceptional cases of referral no crime before the ICC came into force in 2002 could be considered.
But I raise this point about the ICC and domestic remedies in order to illustrate my larger point, which is that Human Rights Watch's work assessing Morocco's compliance with IHRL in Western Sahara complements the varying approaches adopted by others to promoting human rights in this region.
[1] Human Rights Watch, Human Rights in Western Sahara and in the Tindouf Refugee Camps, December 2008, https://www.hrw.org/en/node/77259/section/6.
[2] Human Rights Watch, Human Rights in Western Sahara and in the Tindouf Refugee Camps, December 2008, https://www.hrw.org/en/node/77259/section/6.
[3] Human Rights Watch, Human Rights in Western Sahara and in the Tindouf Refugee Camps; Human Rights Watch, "Letter to the UN Security Council urging for human rights monitoring in Western Sahara," April 17, 2009, https://www.hrw.org/en/news/2009/04/17/letter-unsc-urging-human-rights-mo... "Letter to UN High Commissioner for Human Rights Navanethem Pillay Regarding Western Sahara and Tindouf Refugee Camps," June 19, 2009, https://www.hrw.org/en/news/2009/06/19/letter-un-high-commissioner-human-....
[4] Human Rights Watch, Keeping it Secret: The United Nations Operation in Western Sahara, October 1995, vol. 7, no. 7, https://www.hrw.org/legacy/reports/1995/Wsahara.htm.
[5] https://www.hrw.org/en/node/77259/section/12.
[6] Human Rights Watch, Morocco's Truth Commission: Honoring Past Victims in an Uncertain Present, November 2005, https://www.hrw.org/en/reports/2005/11/27/moroccos-truth-commission-0 and Amnesty International, No More Half Measures: Addressing Enforced Disappearances in Morocco and Western Sahara, August 2009, http://www.amnesty.org/en/library/asset/MDE29/005/2009/en/cea70b17-d191-....
