CANADIAN LAWYERS ASSOCIATION FOR INTERNATIONAL HUMAN RIGHTS

ASSOCIATION DES JURISTES CANADIENS POUR LE RESPECT DES DROITS DE LA PERSONNE DANS LE MONDE


CLAIHR/AJCRDPM
251 Laurier Avenue West, Suite 204
Ottawa, Canada K1P 5J6

Tel: (613) 233-0398
Fax: (613) 233-0671
email: claihr@web.net
Web Site: www.web.net/~claihr/


 

WESTERN SAHARA INITIATIVE

 

 

PHASE I REPORT:

aussi disponible en français

Fact-Finding Mission to Algiers and the Sahrawi Refugee Camps Near Tindouf, Algeria, June 1997



CLAIHR gratefully acknowledges the generous support of the following which made possible the Phase I Western Sahara Initiative fact-finding mission in February-March 1997:

Davies, Ward & Beck Foundation, Toronto

PeaceFund Canada, Ottawa

Heritage Canada, Ottawa

International Centre for Human Rights and Democratic Development, Montreal

CLAIHR Representative on the mission:

Lawrence E. Thacker (Lenczner Slaght Royce Smith Griffin, Barristers, Toronto)

CLAIHR Co-ordinator:

Susan Isaac

Volunteer Project Team Leaders:

Laura B. Farquharson (Commission of Inquiry into the Deployment of Canadian Forces to Somalia )
Robert M. Young (Law Offices of Nelligan_Power, Ottawa)

Project Interns:

Salim Fakirani (University of Ottawa, Faculty of Law)
Veena Verma (University of Ottawa, Faculty of Law)

Project Volunteers:

Julia Barss, Al Cook, Yavar Hameed, Lisa Hutt, Kahin Ismail, David Laliberté, Peter Roth


EXECUTIVE SUMMARY

 

In February and March 1997, a representative of the Canadian Lawyers Association for International Human Rights ("CLAIHR") participated in a fact-finding mission to Algiers and Western Sahara refugee camps near Tindouf, Algeria. The mission was initiated and organized by Lord Christopher Winchilsea of the British House of Lords, founder of the Saharawan Aid Trust. CLAIHR was invited to participate in the mission as a result of our extensive research and advocacy work concerning the Western Sahara self-determination question. This mission was Part I of CLAIHR's fact-finding activities. In Fall 1997, CLAIHR intends to conduct a fact-finding mission to Morocco and Western Sahara.

CLAIHR's goals in participating in the mission were to observe the living conditions of the people staying in the refugee camps, to determine the positions of the Government of Algeria and the POLISARIO Front concerning the present conflict in Western Sahara and, finally, to consider the role of the United Nations, its member states and international non-governmental organizations in resolving the conflict.

Background

Western Sahara is the only remaining colony in Africa. The people of Western Sahara fought first against the Spanish colonizers and then against Morocco, which has occupied the area since 1975, in order to be able to decide their own future. As a result of the war, thousands of Sahrawi fled to neighbouring Algeria where they remain in refugee camps to this day.

In 1991, a cease-fire between Morocco and the POLISARIO Front, the liberation movement, was formalized. On the basis of settlement proposals agreed to by the parties, the United Nations Mission for the Referendum in Western Sahara ("MINURSO") was established. MINURSO was mandated to monitor the cease-fire and carry out a free and fair referendum in which the people of Western Sahara would be able to choose between independence and integration with Morocco. A reduced peacekeeping force remains on the ground.

The referendum was to be held in 1992 but voter identification did not begin until 1994 and was halted, still unfinished, in May 1996. The implementation of the MINURSO settlement plan has stalled, largely as a result of disagreements between the parties over the interpretation of voter eligibility criteria.

At the time of the fact-finding mission, the new UN Secretary-General, Kofi Annan, had just appointed former U.S. Secretary of State, James A. Baker III, as his Personal Envoy to determine whether the settlement proposals could be implemented or whether other initiatives agreeable to both parties were necessary to resolve the conflict. The Secretary General reported on Secretary Baker's efforts to date at the end of May 1997 and indicated that Secretary Baker is expected to meet with the parties again in June 1997.

Refugee Camps

Today, there are an estimated 167,000 Sahrawi living in four camps near Tindouf, Algeria. The food, shelter and medical care needs of the camp residents are provided, almost exclusively, by foreign governments, notably Algeria, and international humanitarian aid organizations.

As was clearly demonstrated to CLAIHR during the mission, the refugee camps are highly organized and provide more than just the most basic needs to their inhabitants. Despite the hostile conditions of a desert climate and the restrictions typical of refugee camps (e.g. inability to move otherwise than between camps), people generally receive adequate food, health care and housing. It appears that significant effort is being made to ensure that the population is well-educated and that it participates actively in the governance of the camps.

From observations and discussions, the Sahrawis, who have been living in these camps for over 20 years, are determined to see that they are able to vote in a free and fair referendum to decide their future. CLAIHR's assessment is that they will be satisfied with nothing less. Their determined efforts to organize some semblance of a decent life in the camps and apparent willingness to endure the hardships of camp life suggests that they will not be easily pushed aside.

Position of the Parties

The POLISARIO is a liberation movement which in 1976 declared Western Sahara as an independent state to be known as the Sahrawi Arab Democratic Republic ("SADR"). The SADR is a member of the Organization of African Unity ("OAU") and is officially recognized by more than 70 states.

Until the recent cease-fire, the POLISARIO carried out armed action in support of their stated goal of liberation of the Western Sahara territory from occupation by the Kingdom of Morocco. The POLISARIO's position is that the present cease-fire threatens to legitimize an illegal status quo. The POLISARIO has reiterated that the current cease-fire cannot be sustained in the absence of progress towards a resolution of the voter registration impasse.

The Kingdom of Morocco claims historic entitlement to the territory of Western Sahara. According to the Moroccan government, support for this claim can be found in the International Court of Justice ("ICJ") advisory opinion of 1975. At the same time, Morocco states its commitment to the peace process and the referendum, and is anxious for the parties to proceed with the process in good faith.

The Algerian government fully supports the POLISARIO in its resistance to the Moroccan occupation. Algeria has long called for the establishment of the conditions necessary to carry out a free and fair referendum on the issue of self-determination in accordance with the principles of international law. The Algerian government has been providing significant humanitarian and military aid to the POLISARIO since 1975 and will continue to do so, despite the significant burden it imposes on the Algerian people.

The POLISARIO and the Moroccan government have met several times since the the peace plan was initiated to try to resolve their disagreement over the implementation of the plan. However, these talks have not been conducted in a forum conducive to agreement or accountability. The process remains stalled with no date set for the referendum. The appointment of James A. Baker III as Personal Envoy is seen as a hopeful sign that real progress towards the holding of a referendum will be made in the near future.

Recommendations


Western Sahara Initiative: Phase I

Report

Table of Contents

 

EXECUTIVE SUMMARY

 

 


I. THE MISSION

 

A.CLAIHR and the Western Sahara Initiative

CLAIHR's Western Sahara Initiative was begun three years ago to help ensure, through legal analysis and international scrutiny, that a free and fair referendum takes place in Western Sahara. Through legal research, on the ground fact-finding and advocacy work CLAIHR aims to bring greater exposure to the issue, to make the referendum process more transparent, and assist in ensuring that the referendum process takes place in accordance with international law.

B.Objectives of the Mission

The fact-finding mission to Algiers and the refugee camps near Tindouf, Algeria represents the first fact-finding stage of the Western Sahara Initiative. This fact-finding mission was carried out with the following objectives:

(i) to ascertain the position and role of the Government of Algeria and the conflict;

(ii) to ascertain the position and role of the POLISARIO (as defined below) concerning the conflict;

(iii) to observe the living conditions of the people living in the refugee camps in Tindouf; and

(iv) to consider the current role of the United Nations, its member states and international non-governmental organizations in resolving the conflict.

The ten-day mission (February 23-March 4) began in Algiers where CLAIHR's representative met for two days with officials of the Algerian government. Then, the participants travelled to the refugee camps near Tindouf where they remained for six days. They toured the camps and met with various representatives of the POLISARIO and the SADR. Finally, the mission returned to Algiers for two days and held additional meetings with Algerian government and other officials. (A complete list of people interviewed is attached as Appendix A.)

The second stage is expected to occur in Fall 1997, with a fact-finding mission to Morocco and Western Sahara. During the second mission, CLAIHR will gather information concerning the following:

(i) the views and role of the Kingdom of Morocco in the conflict;

(ii) the views of Moroccan human rights groups concerning the conflict;

(iii) the living conditions of the people in Western Sahara living under Moroccan occupation; and

(iv) the current role of the United Nations and other interested states.

CLAIHR is in the process of distributing its proposal for the second fact-finding mission to the appropriate funding agencies and is hopeful that it will obtain the funding necessary to carry out the second stage of the Western Sahara Initiative. Interested funding agencies and international development and humanitarian organizations are invited to contact CLAIHR to obtain further information.

C. Background to the Mission

The Phase I mission was initiated and organized by Lord Christopher Winchilsea, a member of the British House of Lords, and founder of The Saharawan Aid Trust. Lord Winchilsea organized this mission to introduce three other charitable foundations to the plight of the Sahrawi:

First, The Friendship Force, which is a charity based in Atlanta, Georgia, with over 30,000 members in nearly 60 countries around the world. The Friendship Force focuses on homestay exchange visits between members of its international chapters as a means to promote international friendship and understanding, with the ultimate aim of promoting international peace.

Second, Action for Peoples in Conflict, which is a United Kingdom-based international aid organization established in April 1995 to provide for the humanitarian needs of people traumatized and suffering from the effects of armed conflict.

Third, The Carter Center at Emory University in Atlanta, Georgia, which is a foundation established by the former President of the United States, Jimmy Carter, for the purpose of promoting and maintaining international peace and providing humanitarian assistance to the people of developing nations.

CLAIHR was invited to participate in the mission as a result of its extensive research and advocacy work concerning the Western Sahara conflict. Lord Winchilsea has encouraged CLAIHR's work in this area and supports the objectives of the Western Sahara Initiative. CLAIHR was invited to participate in the mission to further its goal of fostering the conditions necessary to carry out a free and fair referendum in accordance with the MINURSO plan and the principles of international law.

The following individuals participated in the mission:

Lord Christopher Winchilsea Member of the British House of Lords, Founder and Trustee of The Saharawan Aid Trust

Ron Laybourne Trustee of The Saharawan Aid Trust

Dr. Wayne Smith President, The Friendship Force

Senator J.A. LeMaistre Senator, Jersey, Channel Islands

James Earl Carter, III The Carter Center, Emory University, Atlanta, Georgia

Peter E. Tyrer Chief Executive, Action for Peoples in Conflict

Lawrence E. Thacker Barrister, Lenczner Slaght Royce Smith Griffin (Toronto, Canada), Canadian Lawyers Association for International Human Rights (CLAIHR)

 

D. History of the Conflict

The Sahrawi, the Land and Its Natural Resources

Western Sahara is a territory of approximately 285,000 square kilometres located in Northern Africa, bordered by the Atlantic ocean to the west, Morocco to the north, Algeria to the east and Mauritania to the south and south east. The people native to the territory are known as "Sahrawi". They are a largely nomadic people descended from three ethnically and culturally distinct peoples: Sanhaja Berbers, Bedouin Arabs and Africans who were introduced to the territory as slaves. The first language of the Sahrawi is a dialect of Arabic known as Hassuniya and they are predominately Sunni Muslim.

Historically, the Sahrawi were herdsmen who roamed the desert land in search of food and water for their camels, goats, and sheep. In the later years of the Spanish occupation, urban settlements developed in the form of small towns such as Laayoune, Smara and Villa Cisneros. The Sahrawi have ethnic and cultural ties to other Sahrawi living in Morocco, Algeria, Mauritania, Tunisia and the Canary Islands.

Western Sahara is a land rich in natural resources, including phosphates, oil, iron ore, and fertile and productive coastal fishing waters. It has been estimated that the territory contains total deposits of up to 10 billion tons of phosphate. By 1975, three years after the production and export of phosphates began, the territory was producing 3.7 million tons of high-grade phosphate annually, with production capacity forecasts of up to 10 million tons annually. Oil has been discovered off-shore and underground, although the conditions of the conflict have inhibited effective exploration and exploitation. Iron ore has been discovered in three specific regions of the territory. Finally, the waters of the Western Sahara coast are rich fisheries, and are estimated to produce a global annual catch of as much as 2 million tons.

Spanish Colonization

Between 1884 and 1975, the territory was a colony of Spain. Spain's involvement began in December 1884, when the Spanish government proclaimed a "protectorate" over certain parts of the territory. The borders of the territory that later became known as the "Spanish Sahara" were established by four subsequent conventions between France and Spain signed in 1886, 1900, 1904 and 1912, respectively. In 1958, El-Ayoun was established as the capital of the Spanish Sahara.

The Spanish Sahara was of little economic value to Spain until the rich phosphate resources were discovered in the early 1960s. Prior to that time, the Spanish Sahara was primarily a colony administered by military officers, with little economic activity. The discovery of the phosphate deposits came at the same time as a growing international awareness of colonial exploitation and growing support for decolonization.

The Spanish government had come under repeated criticism for its colonial regime in the Spanish Sahara. In the early 1960s, Spain began making public statements that it would eventually introduce self-determination to Western Sahara through a free referendum by the people of the territory. In 1966, the United Nations General Assembly stated that the Spanish Sahara should be decolonized based on the right to self-determination as expressed in the United Nations General Assembly Resolution 1514(XV). Spain was invited to determine at the earliest possible date the procedure for holding the referendum under United Nations auspices with a view to enabling the indigenous population of the territory to exercise freely its right to self-determination. However, despite strong international support for decolonization and the principle of self-determination for people living under colonial governments, little progress was made in the following few years.

Towards the end of the 1960s, an urban-based Sahrawi nationalist movement was formed. The movement was founded by a growing Sahrawi impatience with the lack of progress towards decolonization and the Spanish withdrawal, which had been discussed for years without action. That movement was quashed after a violent demonstration in Laayoune on June 17, 1970.

In 1971-72, a small group of Sahrawi students living in the City of Rabat established a new movement to oppose the Spanish occupation of the territory. On May 10, 1973, the Frente Popular Para La Liberacion De Saguia El Hamra Y Rio Do Oro (the "POLISARIO") was officially formed. The POLISARIO is a military liberation front, and has declared itself to be an expression of the Sahrawi masses dedicated to the struggle for liberation of the Sahrawi people from Spanish colonization.

The POLISARIO began its opposition by utilizing small, focused guerilla attacks against the occupying Spanish military authorities. Although the POLISARIO was largely without any external military support, it was remarkably successful in its early "hit and run" warfare tactics against the Spanish. After two years of costly guerilla warfare against the POLISARIO, Spain formally agreed to implement a United Nations-sponsored referendum to allow the people of the territory to determine their political future.

The 1974 Spanish Census

In preparation for a referendum Spain intended to hold under United Nations auspices during the first six months of 1975, a census of the territorial population was conducted. The census determined that at the time there were 95,019 individuals resident in Western Sahara: 73,497 were indigenous Sahrawis; 20,126 were of European extraction; and 1,396 were from other African countries. Estimates of the number of indigenous Sahrawis living temporarily in neighbouring countries at that time ranged from the Spanish figure of between 7,000 and 9,000 in total to the official Moroccan estimate of between 30,000 and 35,000 in southern Morocco.

1975 UN Mission to the Region

In May-June 1975, a UN visiting mission to Western Sahara travelled extensively in the territory itself, Morocco and Algeria. The participants interviewed local leaders and government officials as well as refugees living inside and outside the territory. The mission found that "[t]here was an overwhelming consensus within the Territory in favour of independence and opposing integration with any neighbouring country".

The mission also concluded that the POLISARIO accurately represented Sahrawi opinion on the issue of self-determination and political independence, and found no other political movements of significance. The POLISARIO, at that time, appeared to constitute a true expression of the will of the Sahrawi people.

The Advisory Opinion of the International Court of Justice

When Spain agreed to allow a referendum supervised by the United Nations, Morocco proposed that the issue of sovereignty over Western Sahara be referred to the International Court of Justice ("ICJ"). Although initially reluctant, Mauritania soon expressed support for the Moroccan initiative. By resolution dated December 11, 1974, the United Nations General Assembly formally requested the ICJ to deliver an advisory opinion on (i) whether Western Sahara was at the time of colonization by Spain a terra nullius and, (ii) if not, what were the legal ties, if any, between Western Sahara and the Kingdom of Morocco and Mauritania.

The ICJ delivered its opinion on October 16, 1975. It held there was no evidence of "any tie of territorial sovereignty" between Western Sahara or either Morocco or Mauritania. The Court recognized "indications of a legal tie of allegiance between these Sultans and some, although only some, of the tribes in the territory". The Court also held that certain facts gave rise to the existence of rights relating to the land, which established legal ties between the Mauritanian entity and the territory of Western Sahara. However, the ICJ stated that it "has not found legal ties of such a nature as might affect the application of Resolution 1514(XV) in the de-colonization of Western Sahara, and, in particular, of the principle of self-determination through the free and genuine expression of the will of the people of the Territory".

The Moroccan Occupation

The ICJ expressly affirmed that the people of Western Sahara have an inalienable legal right to self-determination as a principle of international law. King Hassan II of Morocco, however, interpreted the ICJ decision as an expression of judicial support for the Moroccan claim to sovereignty over the territory. One day after the ICJ's advisory opinion was released, King Hassan II announced that 350,000 Moroccan volunteers would march from Morocco into Western Sahara "to gain recognition of [Morocco's] rights to national unity and territorial integrity".

In response, the U.N. Security Council adopted a resolution on October 22, 1975 condemning the proposed Moroccan occupation, deemed the "Green March", and calling for the withdrawal of all the participants in the march. By that time, the Moroccan marchers had amassed in Tarfaya to await final instructions from King Hassan II to cross into the Western Sahara territory. Morocco ordered the invasion to begin and moved an estimated 350,000 of its citizens into Western Sahara as a means of advancing its army and establishing control of the territory. The following day the U.N. Security Council passed another resolution that "deplored" the Green March and called on Morocco to withdraw from the territory.

It was subsequently determined that, during the Green March, secret discussions were being held between Spain, Morocco and Mauritania concerning the future of the territory. Formal negotiations between those three states commenced November 11 and resulted in a secret tri-partite agreement (the "Madrid Accords") announced jointly by Morocco, Mauritania and Spain on November 14. Although the details of the agreement were not made public at the time, it is now known that Spain agreed to withdraw from Western Sahara on November 28, 1975. In exchange, it received a grant of a 35% interest in the Western Sahara phosphate industry, together with certain concessions by Morocco concerning the fishing rights off the Saharan coast. The main purpose of the Madrid Accords was to divide the territory between Morocco and Mauritania, with Morocco retaining the two-thirds that contained the bulk of the phosphate resources and Mauritania receiving approximately one-third of the land.

The Sahrawi Refugees

Immediately following the movement of Moroccan military and civilians into Western Sahara, many Sahrawi fled from their homes to remote areas of the Western Sahara territory and eventually across the border into Algeria. By October 1976, the Algerian government estimated that approximately 50,000 Sahrawi had fled to refugee camps located in the Tindouf region of southwestern Algeria. The POLISARIO estimates that approximately two-thirds of the Sahrawi population living in Western Sahara at the time of the Spanish withdrawal fled from their homes and eventually made their way to the refugee camps.

On February 27, 1976, the day following the Spanish withdrawal, the POLISARIO proclaimed the existence of an independent Western Saharan state, the Sahrawi Arab Democratic Republic ("SADR"). Shortly thereafter, the POLISARIO and the SADR began to receive military, diplomatic and humanitarian assistance from the Government of Algeria.

In 1979, Mauritania signed a Peace Agreement with the POLISARIO Front renouncing all claims to the region. However, the area was immediately annexed by Morocco. Since the 1980s the conflict has been between two parties: Morocco and the POLISARIO Front.

The Organization of African Unity ("OAU") and the United Nations have both adopted numerous resolutions calling for the people of Western Sahara to exercise their right to choose between independence or integration with Morocco. In 1983, the OAU proposed a peace plan that involved the cooperation of the UN. Two years later, the UN initiated joint mission of good offices with the OAU in an attempt to resolve the dispute.

Through the efforts of the UN and OAU, Morocco and the POLISARIO Front negotiated a peace plan agreement between 1988-90. The parties agreed to a cease-fire and a referendum was to be held in January 1992.

The Referendum Process - The MINURSO Plan

On April 29, 1991, the United Nations established the Mission for the Referendum in Western Sahara ("MINURSO"). The MINURSO settlement plan established an interim state of affairs commencing with a cease-fire of the armed conflict between the Moroccan forces and the POLISARIO. This was to continue until the results of the proposed United Nations-supervised referendum were determined and announced. The MINURSO plan provided that, during the interim period, the United Nations Secretary-General's Special Representative for Western Sahara would have "sole and exclusive responsibility over all matters relating to the referendum". The United Nations would monitor the maintenance of law and order in the territory in order to ensure that the necessary conditions for a free and fair referendum according to the principles of international law were maintained.

The MINURSO settlement plan envisioned five specific stages. Stage one imposed a cease-fire, which came into effect on September 6, 1991. The MINURSO Identification Commission also arrived in Western Sahara and began updating the census taken by the Spanish colonial administration prior to the Spanish departure in 1974.

Stage two involved the establishment of MINURSO military and civilian offices in Western Sahara, the withdrawal of half of the Moroccan armed forces then occupying the territory and the restricting of the remaining Moroccan troops to certain areas. It was intended that the Identification Commission would publish the list of voters during this stage.

Stage three contemplated the repatriation under MINURSO and the United Nations High Commission for Refugees ("UNHCR") of all of the Sahrawi people then living in the Tindouf refugee camps to safe locations inside Western Sahara. International observers were to be invited to supervise the campaigning and voting process.

Stage four contemplated three weeks of referendum campaigning under rules to be negotiated and agreed to between the United Nations, Morocco and the POLISARIO.

Finally, stage five contemplated the holding of a free and fair referendum on the issue of self-determination for the people of Western Sahara. All the registered Sahrawi voters would be entitled to vote either in favour of legal independence or integration into the Kingdom of Morocco.

MINURSO was a multi-national referendum supervision force initially involving representatives from approximately 50 nations, including Canada. At its inception, MINURSO consisted of approximately 1,700 troops, 800 civil and police personnel and an administrative staff of 300. The budget of $200,000,000 was adopted by the United Nations on May 17, 1991.

As a result of continuing disagreement between the parties regarding the criteria for voter eligibility, the voter registration process ground to a halt. Between August 1994 and May 1996 only 60,000 of approximately 230,000 applicants were identified. The Security Council formally suspended the process in May 1996. At the same time, it ordered the withdrawal of the civilian police contingent and reduced the military complement of MINURSO by 20%. A small political office was to remain in Laayoune with a liaison office in Tindouf in order to maintain dialogue between the parties.

The Laayoune political office has made little progress on the dispute. At present, MINURSO has no presence in the camps near Tindouf. CLAIHR observed the MINURSO compound while travelling through Tindouf. However, we were not able to meet with any MINURSO representatives. We were advised by the POLISARIO that MINURSO plays no significant role in the daily operations of the camps or the lives of the camp's residents.

Since the mission, there have been some hopeful signs of advances in the political arena. The recently appointed United Nations Secretary General, Kofi Annan, has expressed his desire to see this conflict resolved. In March 1997, he appointed former U.S. Secretary of State, James A. Baker III, as his Personal Envoy to Western Sahara to determine whether the settlement proposals can be implemented as they are or whether other initiatives agreeable to both parties can resolve the conflict. Secretary Baker submitted an interim report to the Secretary General at the end of May 1997 and is expected to meet with the parties again in June 1997. The mandate of MINURSO has been extended to September 30, 1997.

The events that have occurred since MINURSO was established, and the current state of affairs, clearly indicate that MINURSO has failed to carry out its mandate. There have been numerous complaints of Moroccan interference with many aspects of MINURSO, and the failure to sanction repeated Moroccan breaches of the cease-fire. The principal area of MINURSO failure is the complete breakdown in the voter identification process.

Voter identification did not begin until August 1994, nearly three years after the date called for by the MINURSO plan. Numerous problems have been identified with the administration of the voter identification process, including the following allegations:

(i) The voter registration criteria have been changed from the original MINURSO plan (see further details below) and have introduced uncertainty and subjectivity into the identification process.

(ii) The applications were not distributed by MINURSO but rather were given to Moroccan and POLISARIO authorities for distribution, precluding any ability to ensure that all potential applicants receive an application form.

(iii) Moroccan authorities have attempted to control access to the MINURSO voter registration centres in Morocco and the occupied territory and have refused to allow MINURSO representatives freely into Morocco and the occupied territory.

(iv) MINURSO has reported instances of Moroccan monitoring of telephone lines, tampering with mail and other surveillance of MINURSO activities.

(v) Identification commissioners have reported that Morocco has exerted improper influence on tribal leaders to identify applicants presented by Morocco.

The most contentious issue in the MINURSO plan has been the issue of the criteria for eligibility to vote in the referendum. The MINURSO peace plan expressly acknowledges the agreement of both parties that the Spanish census of 1974 would serve as the basis for the list of those persons eligible to vote in the referendum. That census listed the names of 73,497 Sahrawi.

When MINURSO was established, the Identification Commission was authorized to "implement the agreed position of the parties that all Western Saharans counted in the 1974 census undertaken by the Spanish authorities and aged 18 years or over will have the right to vote, whether currently present in the territory or outside as refugees or for other reasons". The mandate was subsequently modified to include: "(a) removing from the list the names of persons who have since died and (b) considering applications from persons who claim the right to participate in the referendum on the grounds that they are Western Saharan and were omitted from the 1974 census."

From the time of the establishment of MINURSO, Morocco has consistently argued that the voter registration criteria should be less restrictive. However, the POLISARIO refused to expand the voter registration criteria on the grounds that it would allow people with insufficient ties to the disputed territory to vote. Notwithstanding the objections of POLISARIO, in August 1991, Morocco presented approximately 180,000 applicant voters who were not listed in the 1974 census. Furthermore, Morocco began to relocate Moroccan citizens into the occupied parts of the territory.

In December 1991 the Secretary-General of the United Nations, Javier Pérez de Quéllar, modified the voter registration criteria to increase the number of potentially eligible voters.

The expanded voter registration criteria are as follows:

 

The effect of the modification to the voter eligibility criteria has been to legitimize the introduction by Morocco of applications by individuals whose ties to the territory are, at best, questionable. Out of the 180,000 additional applications for registration on the voter list submitted by Morocco in August 1991, 100,000 of those were submitted on behalf of persons who at that time resided in Southern Morocco. At that time the total number of Moroccan applications was 180,000 while the total number of the POLISARIO applications was 40,000.

In 1995, the MINURSO Identification Commission began to allow persons to prove their relationship to the territory by means of oral evidence only. The POLISARIO has consistently objected to both the expanded voter registration criteria and the acceptance of oral evidence without any corroborating documentary evidence. The POLISARIO has cited concerns about the unreliability and the practical difficulties in allowing oral testimony to support a claim for voter registration, without any supporting documentary evidence.

Morocco has consistently maintained that oral testimony, notwithstanding the lack of documentary evidence, should be sufficient to establish identity under any one of the five criteria. The voter registration process under MINURSO has proceeded and many of the Moroccan applications are based on oral evidence alone. Due to the absence of complete records governing the voter registration proceedings, it is not possible to determine the grounds for accepting or rejecting each applicant.

As a result of the problems listed above the voter registration process has come to a complete halt. Six years after MINURSO was established and 16 months after voter registration began, only 60,000 voters have been registered out of approximately 230,000 applications.

E. The Refugee Camps Near Tindouf

Background to the Camps

There are four Sahrawi refugee camps, all located in the Tindouf region of Algeria. Three of the camps, Smara, Auserd and Aaiun are located in a cluster, south of the Algerian city of Tindouf, separated from each other by barren desert. Each of those three camps is home to approximately 40,000-45,000 Sahrawi.The fourth camp, Dakhla, is located apart from the other three and has a population of approximately 45,000-50,000 Sahrawi. The four camps were established in November-December 1975 in order to provide food, shelter and medical care to the estimated 65,000 refugees who fled from their homeland after the Moroccan occupation of the Western Sahara territory.

Each camp constitutes a "Willaya" or province of the SADR. Each Willaya is divided into six "Daira" or districts, except Dakhla which has seven districts due to its slightly higher population. Each Daira is sub-divided into four "Hay" or sub-districts.

The camps are designed to function as self-contained provinces of the SADR. The birth and death rates between the camps are comparable and the POLISARIO strives to ensure that the camps are roughly equivalent in size. However, migration between the camps is not unusual and generally occurs as a result of marriage, divorce or an illness that might require a person to assume responsibility for an ill or elderly adult or a child who requires care. When a Sahrawi wishes to move his or her residence from one camp to another, he or she is required to obtain permission from the local council of the camp he or she wishes to move to.

In the circumstances described above, permission would ordinarily be granted. If a move is requested for other reasons, the local council will consider whether the proposed move is compatible with the individual's work schedule and whether the move will adversely affect any other members of the camp. Generally, most applications for transfer are approved. It is recognized by the local government of the camps that it is usually more productive and efficient to allow an individual to live where he or she wants, provided that basic needs for food and shelter can be accommodated.

Governance and Participation

(i) The Government of the Sahrawi Arab Democratic Republic

The structure of the SADR was established with two primary objectives:

The highest body is the SADR General Congress, which is held every three years. The most recent general congress was the 9th General Congress held in 1995. The General Congress consists of approximately 800 representatives elected by their constituents. Democratic elections are held in each district. Each district is allocated a certain number of general congress positions and each citizen is allowed that number of votes. The candidates are ranked according to the number of votes each of them received. Those high enough on the ranking are elected to the General Congress.

The purpose of the General Congress is to discuss general political, economic and social policies, and to elect the executive branch of the SADR, the National Secretariat. The conditions of eligibility for election to the General Congress are as follows:

The National Secretariat presently consists of 33 members elected by the General Congress. Each General Congress member will cast 33 votes. An election is held first for the Secretary-General and then a second election for the remaining 32 members of the National Secretariat. In order to be eligible for election to the National Secretariat, the candidate must be a member of the General Congress. National Secretariat members are considered to be equals except for the Secretary-General who is also the President of the SADR.

Local government is organized at the district level. Each district has a local district council of 8-9 members. Local district elections are held each year and each citizen is allowed one vote for each local committee position. The Committee will elect a chairperson. The Chairperson will then assign responsibility for the various administrative functions in each district, such as health, social affairs, justice and food to one of the local district council elected members.

The SADR is presently in a state of war and POLISARIO has stated that it is not to be considered a political party, but rather a liberation movement or expression of the will of the people. Until the state of war ends, the POLISARIO will remain, in effect, a military government whose members are democratically elected. The POLISARIO advised CLAIHR that the Sahrawi citizens realize that the POLISARIO is a military liberation movement that transcends political differences. We were informed that, at the present time, no one contests the POLISARIO's leadership, although there is a wide range of opinions and policy divergence within the POLISARIO. However, the POLISARIO also recognizes that there will be political dissent when the unifying nationalism and the practical requirements created by the state of war no longer exist.

The SADR constitution recognizes the unique requirements of an emerging country in a state of war. However, the constitution also recognizes that the POLISARIO's reason for existence may cease and at that point the SADR will function as a constitutional democracy. At that point, the role of the POLISARIO will fade to that of a political party or even perhaps to one of only historical significance. As a result, although political dissent has not yet been an issue in a significant way, it is constitutionally recognized and accepted as a fundamental human right of SADR citizens. The democratic electoral system has been established to allow for political dissent.

(ii) SADR Legal System

The SADR has recently implemented a comprehensive criminal and civil justice system. During an interview with the Chief Prosecutor of the SADR, Abba Salek Elhaissan, CLAIHR was able to discuss the structure of the legal system. The SADR legal system is the responsibility of the Minister of Justice, currently Hamati Rabani.

Prior to 1991, the SADR was considered to be in a state of war and engaged in an armed conflict that threatened its survival. According to the Chief Prosecutor, throughout that time period, civil disputes and criminal misconduct were, by societal consensus, dealt with in accordance with traditional legal principles. In 1991, the SADR and the POLISARIO began to recognize the increasing need for a justice system to protect democratic values and fundamental human rights.

Approximately eighteen months ago, the SADR constitution was amended to reflect the SADR's recognition of, and commitment to, individual human rights and an independent legal system. During the 9th National Congress, the SADR Parliament enacted laws that empowered judges and lawyers to consider and recommend a civil and criminal justice system for the SADR. The result was a substantive and procedural legal system that is designed to recognize the particular circumstances of the SADR, while at the same time protecting the needs and the goals of a modern state in the international community.

Lawyers are required to study law for four years at the university level. They are then required to spend two years practising law in Algeria. The Chief Prosecutor studied law in Morocco and received a bachelors degree in law. He also received further training at a judicial training institute in Algeria. At present there are four qualified Sahrawi lawyers. Six others are completing their legal training.

A judge must be a qualified lawyer and have received further qualifications from the judicial training institute in Algeria. At present, there are ten fully qualified SADR judges.

The police service consists of approximately 50 persons. Currently, there is one SADR jail with separate facilities for men, women and youth under the age of 18. At the time of CLAIHR's visit, there were nine inmates, the most serious crimes being theft and assault.

The court system has four distinct levels. First is the district level which is a court of informal resolution. This is essentially a mediation and arbitration forum used only for civil matters. The decision-makers are not trained judges, but rather are respected local officials.

Second is the court of first instance which is presided over by fully qualified judges. This court is able to hear both civil and less serious criminal matters. The court consists of a single judge, having jurisdiction to order imprisonment for up to two months. Fines are never imposed since there is no currency to pay a fine. Each province has one court of first instance.

Third is the appeal court which consists of three judges and a four-person jury. This court is used primarily for more serious criminal offences and has jurisdiction to order imprisonment for up to five years.

Finally, there is the Supreme Court, which consists of five judges whose jurisdiction includes all matters concerning implementation and enforcement of SADR law. Although independent of the executive and legislative branches of the SADR, the Supreme Court does not have jurisdiction to interpret the SADR constitution.

The Chief Prosecutor informed CLAIHR that the SADR law is a mixture of Spanish, French and Islamic law. The law governing civil matters is derived mainly from Islamic legal principles, with procedure governed by generally accepted Western common law concepts, such as due process and fairness. The criminal law is less Islamic-based and focuses more on the particular living conditions and needs of the Sahrawi people. Under all SADR law, men and women are treated equally.

The law is codified in several texts that have been approved by the National Council and by the SADR President. The courts generally attempt to follow the doctrine of precedent, unless the law is modified by statute. At present, the SADR does not allow the President to veto proposed legislation and he is compelled by the Constitution to approve validly enacted legislation.

(iii) Participation of Women

The National Union of Sahrawi Women ("NUSW") is a separate women's union that has its roots in the early formation of the POLISARIO. When the POLISARIO first began, its founders recognized that in order to succeed they would need the support of Sahrawi women, trade unions and youth organizations. Very early in its development, the POLISARIO began to allow an independent democratic structure and decision-making process for the trade unions and the NUSW, and provided a place for the higher elected representatives of each of those organizations within the POLISARIO. When the constitution of the SADR was completed, the existence of both of those groups was expressly recognized.

The NUSW is structured much like the SADR government. The main decision-making body is the National Congress. Only Sahrawi women are allowed to vote to elect members to the National Congress and only women are allowed to stand as candidates. Meetings are held first at the district level to elect representatives to the National Congress of women. The National Congress functions as an organization responsible for electing certain members to the National Secretariat and separately electing a Secretary-General of the NUSW. The National Women's Secretariat is the governing body of the NUSW, responsible for policy formation, implementation and liaising with the POLISARIO and the government of the SADR.

The executive bureau of the National Women's Secretariat consists of the Secretary-General and 15 others, who each have responsibility for an individual portfolio such as foreign relations, administration, information and culture, protection and social solidarity, education, health, training, Director of the 27th of February school, or as individual representatives of each Willaya.

The Secretary-General is by her office a member of the National Secretariat of the SADR. This is a deliberate attempt to ensure that women have a democratically elected voice at the highest levels of the SADR government and in the POLISARIO decision-making structure.

Camp Living Conditions

(i) Housing

The Sahrawis live in large tents provided by the United Nations High Commission for Refugees ("UNHCR"). In 1975, upon arrival to the camps, the refugees were provided with emergency shelter and then with more permanent housing in the form of large tents. Each family is allocated a plot of land large enough to accommodate the tent, a lavatory and a yard to allow household chores to be done, such as washing clothes, preparing food and replenishing water supplies.

Nearly every family has constructed a building beside its tent. The buildings are constructed of sand bricks made from sand dug from the family's plot of land, and mixed with water and dried under the hot desert sun. The brick buildings vary in size but typically are approximately 4 metres x 6 metres. The sand brick building is used for cooking (to minimize tent fires) and for sleeping in during the cold season.

Both the tents and the buildings are well-kept and comfortable and, in some cases, elaborately decorated with carpets covering the sand floor and linen cloth covering the wall. Due to the harsh desert conditions, the tents typically wear out and have to be replaced every four years. During heavy rains, the sand brick structures are often damaged or destroyed. The Sahrawi have lived in the camps for over 20 years, and they have found that the tents are the only form of economical housing capable of withstanding the harsh desert sun, wind and rains.

Each tent owner has also built a brick lavatory, constructed in the same fashion as the cooking building. The Sahrawi have learned sophisticated techniques for dealing with sewage in a desert climate without running water, and have carefully constructed their lavatories to ensure effective and sanitary disposal of waste while avoiding contamination of desert soil and underground water supplies. The POLISARIO have made great efforts to educate the Sahrawi, and particularly the women as primary care givers, about the importance of personal hygiene in minimizing disease. Although water is scarce and not easily obtainable, each lavatory is well-equipped with a water basin, water bucket, soap and a towel.

A Sahrawi will usually receive a tent from the local camp administration shortly before marriage. Prior to marriage, a Sahrawi will generally live with his or her family or, if his or her job requires it, will stay in accommodations constructed by the POLISARIO specifically for his or her particular occupation. When an engagement is announced, the man and woman are provided with a tent, a supply of blankets, and the basic equipment necessary to make tea and cook food, including a propane cooker that will also function as a heater. The couple is instructed to find a convenient plot of land in the camp on which to set up a tent.

Typically, people will choose a piece of land close to their families, often resulting in large extended family groups living side-by-side. This informal community enables daily survival requirements, such as care needs for children, the ill and the elderly, to be accommodated in a cooperative and efficient manner. Similarly, food shortages that may arise as a result of an individual family's circumstances can be dealt with on an informal basis by borrowing food and other needs and supplies from a family member or neighbour who may have a surplus of food, cooking fuel or water.

(ii) Food and Water

Water is supplied to the Sahrawis through an extensive distribution network. There is a large deep water well located near the Smara, Auserd and Aaiun camps from which water is continuously drawn and distributed by water tanker to each camp. Each district has four water tanks (one for each sub-district) and each tank is refilled twice per day by trucks travelling directly from the deep water well. Many Sahrawi have been able to purchase a small water storage tank for their own plot of land, or perhaps to share with several neighbours. Such a tank enables them to store several days' supply of water near their tents. Due to the careful organization of the tent plots and the effective placement of water tanks, the main sub-district tank generally is within 50-75 metres of each tent that it services.

Although water did not appear to be scarce, distributing the water is both labour intensive and requires the use of other scarce resources such as the tanker trucks and the fuel to operate them. We have subsequently been advised by the POLISARIO that the water supply has become contaminated and parasitic diseases are becoming a significant problem.

The Sahrawi diet traditionally was very heavy in protein and contained little fruits or vegetables. The main staples were camel meat and camel milk. The diet of the Sahrawi living in the camps has, of course, changed dramatically from that traditional diet. Staples in the camp are rice and bread. Vegetables, potatoes and beans are available in lesser quantities. Canned fish, limited quantities of non-local meat and canned fruits also are received occasionally from various agencies. The main dietary staple, flour, has traditionally been provided by the World Food Program, along with required quantities of lentils and cooking oil. Rice has been provided by Italy.

Food in the camps is allocated and distributed by the Sahrawi Red Crescent. Almost all of the food required for the Sahrawi is donated by international humanitarian aid agencies and is distributed to the Sahrawi Red Crescent by either the Algerian Red Crescent or the International Red Cross. The primary providers of food are the World Food Program of the United Nations and various humanitarian agencies of the European Economic Community.

The Sahrawi Red Crescent keeps detailed statistics concerning the number of births, deaths and illnesses in the various camps. Those statistics are compiled and reviewed monthly to determine the specific needs of each camp, and to account for travel to and from the camps and any other population or demographic changes. Statistical information is gathered and compiled by Sahrawi Red Crescent representatives at the level of each sub-district, which is then analyzed by the local council for each camp, and reviewed by the senior officials of the Sahrawi Red Crescent. At present, 20,000-25,000 Sahrawi are located in the POLISARIO-occupied Western Sahara territory and another 140,000-145,000 are present in the camps. There are 25 districts within the camps, and within these districts there are four hospitals and three residential schools. Food is distributed to the hospitals and the residential schools separately since food is provided through common dining facilities.

Each month the Sahrawi Red Crescent reviews the amount of food available and the nutritional needs of each district. The district will then be supplied by the Sahrawi Red Crescent with the amount of food necessary for its specific population needs. Generally, every person, whether adult, child, disabled, male, female, young or elderly will receive exactly the same amount of food. The president of the Sahrawi Red Crescent explained that, although this might sound inefficient, experience has demonstrated that the principle of absolute equality results in the most effective distribution of food and the most efficient use of food resources. For example, he explained that a woman nursing a child may have anaemia due to the shortage of vegetables and meat. However, since the nursing baby receives an equal allotment of food, the family will be able to utilize that extra food to allow other members of the family to perform additional labour which the mother is unable to perform.

Although this manner of distribution occasionally causes inequalities of outcomes, informal networks are often formed to deal with these problems. Depending on the number, age and specific nutritional requirements of a particular family's children, the family may experience occasional shortages of food, creating inequalities of outcome. However, there are strong ties of solidarity and cooperation between families and neighbours in the sub-districts and these inequalities and shortages are generally dealt with in the spirit of cooperation among neighbours.

Where food is received in a quantity small enough that does not allow for equal distribution to all people in the camp, a decision will be made to distribute the food to a specific location, generally a particular school or hospital. Where the food is capable of shelf storage, it may be distributed in very small quantities and collected by each family until enough food of that particular kind is accumulated to allow a meal for the entire family.

Food is distributed on a monthly basis, generally on the 28th day of each month. The people are advised well in advance of the day on which food will be distributed and will attend a food distribution outlet in their district on that day to receive their monthly allotment of food. The natural gas required for cooking and heating is also distributed through the Sahrawi Red Crescent using the same principles and administrative structure as for food.

(iii) Agriculture

Although the harsh weather extremes and dry desert soil make agriculture very difficult, the Sahrawi have used labour and agricultural technology to produce a small portion of their food requirements. Sophisticated irrigation and soil transplantation techniques have enabled the Sahrawi to cultivate over 500 acres of agricultural soil in barren desert. The Sahrawi presently grow dates, carrots, onions, tomatoes and beet roots, and occasionally succeed in producing melons.

Agriculture in the harsh desert conditions is extremely labour intensive. Soil must be completely removed and replaced with fresh topsoil every three years. Due to the dry conditions, all water for the agricultural projects must be delivered through sophisticated irrigation systems fed by large water tanks. Finally, due to the harsh desert winds and fine soil, growing plants must be protected by well-constructed fences to ensure that wind storms do not destroy crops.

In February 1988, the UNHCR assisted the Sahrawi in constructing a chicken farming operation. There are three large chicken barns, each capable of holding up to 25,000 chickens. At present, two are operating at full capacity. It is expected that the third barn will be filled by March 1998. The Sahrawi purchase 18-week old chickens from Algeria. The chickens begin to lay eggs at 21 weeks and are productive for approximately 14 months. In a 14-month cycle, each barn will produce 6,500,000 eggs.

One-half of all eggs produced are sold to the Algerian market in order to guarantee the prices of production. The money from the sales is used to buy young chickens and chicken feed. The remaining 50% is provided to the Sahrawi Red Crescent for distribution to the refugee camps and the hospitals and schools contained within the camps. Each barn employs approximately 12 people and requires three tonnes of food daily. In total, the agricultural facilities employ approximately 70 workers.

(iv) Education

Education in the camps is provided through a well-established network of pre-school daycare, primary school, and secondary schools. Each district has a pre-school daycare for children between the ages of three and five. The next level is primary school for grades 4, 5 and 6. There are three primary schools in each camp, one for every two districts. Children generally graduate from grade 6 at the age of 11-12.

Secondary school is provided through two boarding schools, the 9th of June school and the 12th of October school. Students are placed in grades 7, 8, or 9 and generally finish grade 9 at the age of 14-15. The secondary schools are residential and children live at the schools through the entire school terms, returning to their homes only between terms and for holidays.

The highest level of education encompasses grades 10, 11 and 12 and is provided through an extensive network of exchange programs with various nations, including Algeria, Cuba, Spain and Italy. Although not all students are offered an opportunity to receive the highest level of schooling, those who excel academically are provided with a final high school education that is accredited and recognized worldwide, combined with the experience of leaving the desert for the first time and experiencing life in a fully-developed nation. Those students are encouraged to study and to continue to excel in their academic work. Students who are successful in obtaining a scholarship for university are strongly encouraged to attend.

There are two other "special needs" school in the camps. First, the women's training school, the 27th of February school, is used to provide training for women in civil administration. Entrance to the school is dependent upon successful completion of grade 9 with certain standing or the satisfactory completion of an entrance examination. This school provides training in various civil administration occupations to prepare graduates for employment in the civil service and the local administration of the camps. The school also provides teacher training to graduates who will go on to work as teachers and assistants at the other school.

Second, the school for the disabled (the 9th of June school) was established in Smara. This school is presently functioning as a centre for the education of mentally and physically disabled children, and a rehabilitation and education centre for adults who are physically and/or mentally disabled.

(v) Freedom of Movement

Travel between the camps is carried out by shuttle bus service and an informal network of passenger transportation on vehicles used to travel between the camps for administrative purposes. There are common assembly points between the camps. As a general rule, the drivers of any Sahrawi vehicle travelling between the camps is required to pick up as many passengers as their space will permit. The Sahrawi refugees occasionally travel to the POLISARIO-occupied areas of Western Sahara after heavy rains to seek grass for their camels and to produce nutritious sweet camel milk. The POLISARIO also organizes trips for the elderly and the ill to the more fertile areas of the POLISARIO-occupied territory to enable them to drink the nutritious sweet camel milk and to eat protein-rich camel meat.

We were advised that the Sahrawi are free to leave the camps if they wish although, as a practical matter, the only destination for the vast majority of the Sahrawi would be Tindouf. Throughout the time of the Spanish colonization, Tindouf was a thriving trading city. When the Moroccans occupied the territory, trade in the city diminished substantially and today it functions primarily as a base for the Algerian military. Much of the international aid provided to the Sahrawi is shipped to Tindouf and transported to the camps by the POLISARIO acting together with the Algerian Red Crescent. Accordingly, there is frequent travel between the refugee camps and Tindouf. The Sahrawi are able to trade for certain household goods in Tindouf. If they have currency, they are able to purchase supplies they may need.

There are check points staffed by Algerian military personnel to control access in and out of Tindouf. There also are check points staffed by the POLISARIO that control access to the region where the camps are located and to the well-travelled desert roads running between the camps. We were advised by the POLISARIO and by numerous inhabitants of the camps that they are free to travel whenever they wish, subject only to their means and to their work schedules. However, it is clear that access to and from the camps and Tindouf is secured and well-enforced.

Moroccan Prisoners

During our visit, CLAIHR was allowed to visit a prisoner of war camp located near the Tindouf refugee camps. The POLISARIO advised that there are two camps housing Moroccan prisoners near Tindouf and several other camps in the POLISARIO-occupied part of Western Sahara. The POLISARIO advised CLAIHR that approximately 1,900 Moroccan prisoners are presently held. The two camps near Tindouf are said to contain approximately 500 enlisted men and 40 officers. The prisoners are housed in dome-like structures constructed by them using brick, mortar, water and other building supplies provided by the POLISARIO. Each dwelling has running water and electricity which is not generally available to the Sahrawi refugees.

CLAIHR was permitted to speak freely with the Moroccan prisoners for approximately 1.5 hours. The Moroccans were willing to speak with us in private and invited us into their dwellings. Most of the Moroccans spoke to us in French although some spoke fluent English. The prisoners informed us that they are generally well-treated and that they receive adequate food and water. The prisoners confirmed the POLISARIO information provided to us that their diet consists of food distributed to the POLISARIO from international aid agencies. As such, their diet and the amount of food they receive is essentially the same as that of the Sahrawi camp residents. The prisoners are fed rice, beans, chickpeas and, occasionally, vegetables.

There are three Moroccan physicians in the prisoner of war camps. One of the physicians reported to CLAIHR that the prisoners suffer from numerous illnesses caused by the harsh living conditions and the physical and emotional hardships of captivity. These illnesses include diabetes, arthritis and heart disease. The physician informed us that they are able to specifically request and generally receive required medicines and medical supplies. However, he said the POLISARIO also suffers from a shortage of necessary medical supplies and, as a result, the prisoners suffer. The physician did not believe that needed medical supplies are intentionally withheld. Prisoners suffering from serious illnesses are given medical treatment at Sahrawi hospitals.

The prisoner camp did not look like a conventional prison. There were no cells or bars and no barbed wire or high enclosure walls. The prisoners were guarded by approximately ten guards who did not appear to be armed. Due to the harsh and unforgiving weather conditions, the remote location of the camps and the difficulties in surviving the intense desert heat and lack of water, genuine escape attempts are rare. According to the POLISARIO, those who try to escape are almost always recaptured shortly thereafter, and it is understood that the prisoners are acting in accordance with their duty to try to escape. Escapees generally are not subject to serious punishment.

The Moroccan prisoners stressed that although they generally are treated as well as the adverse desert conditions allow, they are nonetheless prisoners held by their enemy in a long and protracted war. They are being deprived of their liberty and, in some cases, their health and they continue to view the POLISARIO as their enemy.

The prisoners are visited several times per year by the International Committee of the Red Cross. Through these visits, the prisoners are able to send and receive mail freely from their families in Morocco and other countries, including Canada.

The prisoners informed us that they are aware that their existence has become a "taboo" subject in Morocco and people there may not feel free to speak openly about the existence of the prisoners. One prisoner also said that the Moroccan people, "are relatively apolitical people and may not be concerned with the plight of several hundred military personnel being held in a foreign prison". However, they stressed they are convinced that the Moroccan government and people are fully aware of their existence and present circumstances.

Conclusions

During the visit to the camps, CLAIHR observed a high level of respect for basic human rights. Any discrimination based on gender, citizenship, disability and age was strongly condemned, and the basic social and political structures seem to be established on fundamental principles of equality and respect for basic human rights. There are structures in place to provide reasonable accommodation for the physically and mentally disabled, and social accommodations made for the immediate and long-term care needs of the elderly and the ill.

As outlined above, the Sahrawi people have their roots in three distinct ethnic cultures, and physical differences among the Sahrawi are immediately evident. However, CLAIHR did not observe any overt prejudice or racial discrimination, and was repeatedly advised by both government officials and private citizens that racial discrimination is never a concern in the camps.

All women are fully eligible to stand for election to any elected office. As described above, the Sahrawi women participate fully in the government of the SADR and the local administration of the camps to a far higher level than in their pre-1975 society. Many of the Sahrawi men are members of the POLISARIO and are engaged in military and support activities in the liberated parts of Western Sahara. Accordingly, the vast majority of local administrative responsibilities and local government activities are carried out by women of the SADR.

In spite of the inherent uncertainty and anxiety of being refugees and the inhospitable climate in which they live, the Sahrawi have built a society in the camps that is based on democratic values and that provides for their basic needs. The Sahrawi are determined to exercise their right to decide their own political future, using whatever means necessary. The organization and cohesion of the society they have built suggests that they will not fade away or be easily forgotten.

F. Position of the Parties

The Position of the Algerian Government

The Algerian position concerning the Sahrawi has consistently been one of unwavering support. The various Algerian government officials that I spoke with consistently expressed a fundamental reason for the Algerian support. Algeria was involved in a long bitter struggle for its own independence. Although victorious, Algeria's struggle to exercise its right to self-determination was painful and costly. The war has been described as one of the most bitter and violent conflicts in recent history.

Most Algerians continue to be deeply affected by the economic, social and emotional consequences of their struggle for independence and it clearly forms a strong part of their national character. The Algerian government officials unanimously expressed the view that, given Algeria's history and fundamental commitment to its own self-determination and independence, it must fully support the Sahrawi and their struggle for self-determination and independence.

Algeria's second stated reason for supporting the Sahrawi struggle for a free and fair referendum is a desire to establish conditions for stability and peace in the entire Mahgreb region. The Algerians repeatedly stressed that the present situation of armed conflict and the fragile cease-fire, has created economic and political instability, which continues to inhibit economic development in the region and the political development of Algeria as a democratic nation.

Relations between Morocco and Algeria have never been close and in Morocco the conflict over Western Sahara is described as a war against the Algerians. Against that backdrop, it would be naive to ignore the obvious strategic advantages to Algeria in having either a friendly or neutral government in control of the adjacent Western Sahara territory rather than having to expose its borders to the Kingdom of Morocco.

Although we were not able to determine the specific extent of the Algerian assistance to the Sahrawi, it clearly constitutes a significant expense for Algeria. Despite the financial hardship it imposes on the Algerian government, both the Algerians and the POLISARIO advised us that there is no sign that Algerian support is weakening or diminishing in any way.

The Algerian government officials indicated to us that Algeria will allow the Sahrawi people to stay in the camps in Tindouf for as long as is necessary. The Algerian government will continue to support the Algerian Red Crescent and assist in its efforts to distribute food, medical and other humanitarian supplies to the Sahrawi people. The Sahrawi have no apparent means of earning hard currency. They do not produce any products for export and there does not appear to be any source of income for the government other than humanitarian aid. It is reasonable to assume that the financial assistance the POLISARIO requires in order to carry out the diplomatic and military aspects of its struggle is provided mainly by Algeria.

The Algerian government continues to support a free and fair referendum conducted in accordance with the principles of international law. It agrees with the POLISARIO that the Spanish census conducted in 1974 should form the basis of the voter registration list. The Algerians question the legitimacy of the thousands of applications filed by Morocco, and are concerned about the estimated 100,000-200,000 Moroccans who claim to be Sahrawi, who fled to Morocco from Western Sahara during the late years of the Spanish colonization.

Algeria feels the international community has a role of fundamental importance in establishing the conditions for a free and fair referendum in Western Sahara. Specifically, Algeria believes the international community must gain a greater understanding of the nature of the current impasse, and should take all steps necessary to exert effective pressure on the United Nations Security Council to force a resolution of the dispute. The Algerian officials stressed that the MINURSO plan is an official United Nations-sanctioned blueprint for resolving the dispute over Western Sahara and, as such, is required to be implemented.

Algeria does not understand the United Nation's unwillingness to take active steps to enforce the MINURSO mandate or to ensure that the parties involved do not interfere with MINURSO's work in the region. Algeria believes that the international community must exert more pressure on the United Nations Security Council and on Morocco to implement the MINURSO plan in accordance with its terms.

Algeria also stressed that the international community must avoid any perception that the present situation can be maintained as the status quo. The Sahrawi have been living for 20 years in exile, in harsh desert conditions. Virtually every Sahrawi has had a close family member killed or segregated in the occupied territory as a result of the occupation and partitioning of Western Sahara by Morocco.

The Sahrawi are firmly committed to the struggle for self-determination and have demonstrated a willingness to pay whatever price is necessary to preserve their right to a referendum under the terms set out in the MINURSO plan. The Algerian government supports the POLISARIO position that there can be no compromise on the issue of sovereignty and absolute control for the natural resources of the territory (unless the referendum indicates otherwise). Algeria agrees with the POLISARIO's basis for this position, which is a concern that the safety of the Sahrawi people can only be guaranteed by the security granted by sovereignty over the territory. The Algerian government officials informed us that Algeria will continue to take steps to lobby the United Nations Security Council to implement the MINURSO plan in accordance with its terms and resolve the current impasse over the voter registration criteria.

The Algerian government officials stressed that they have no control, and would not attempt to exert any control over the decisions made by the POLISARIO concerning SADR policy and political decisions. Algeria has recognized the SADR as a independent state entitled to determine its political future. It agrees with the POLISARIO that progress towards implementation of the MINURSO plan has been halted and that the cease-fire adopted in accordance with the MINURSO plan is in serious jeopardy. Algeria understands the SADR's frustration over having waited 20 years for the exercise of its legal right to a free and fair referendum. During that time, the Sahrawi have suffered immeasurably by being forced to live at a subsistence level in harsh, inhospitable desert territory.

The Algerian government also supports the POLISARIO view that the SADR cannot continue to maintain the current cease-fire without some visible progress toward the implementation of the MINURSO plan. The Algerian government recognizes an urgent need to bring the current impasse to an end if the cease-fire is to be preserved. This will require pressure from the United Nations Security Council to ensure that both parties are acting in accordance with the MINURSO plan and with a view towards implementing its objectives. The Algerian government officials repeatedly stressed that Algeria recognizes the right of the Sahrawi to self-determination and the resulting obligation on other nations to protect the exercise of that right to self-determination in a free and fair manner.

The Position of the POLISARIO

During the visit to the refugee camps in Tindouf, CLAIHR spent a great deal of time interviewing various officials of the SADR government and the POLISARIO, including the President of the SADR and Secretary-General of the POLISARIO, the Prime Minister, the Speaker of the National Parliament, the Minister of Foreign Affairs, and other high-ranking officials. The POLISARIO and other government officials all expressed unwavering gratitude for the support and assistance given to them by the Algerian government. They acknowledged that without the support of the Algerian government, they would not have survived as a nation. They also confirmed that the Algerian government has provided its support unconditionally without attempting to exert any pressure on SADR foreign policy or to obtain any commitments concerning future use of the territory.

However, the POLISARIO also stressed that the demands placed on the Algerian government by the requirements of the Sahrawi refugees for humanitarian aid constitute a heavy burden for the Algerian government to bear. It does not expect that the Algerian government will be able to continue to bear that cost indefinitely. Accordingly, it believes that the current impasse must be resolved as soon as possible. The POLISARIO has publicly stated that unless there is some evidence of a political will of Morocco to move towards the implementation of the MINURSO plan, the cease-fire cannot be maintained. As the Prime Minister of the SADR told CLAIHR's representative,

The events have now reached a crisis and we believe that if there is not a solution in the near future, there will never be a peaceful resolution to the conflict. We believe that a resolution of this conflict will contribute greatly to the stabilization of the entire Maghreb region.

The POLISARIO position concerning the referendum process is that the original MINURSO plan, which was agreed to by Morocco, was fundamentally changed without authorization when the voter registration criteria were expanded to include new criteria that would allow for the addition of many thousands of people to the voters' list. It is the POLISARIO position that the expansion of the voter registration criteria allowed Morocco to include as eligible voters a significant population of Moroccan citizens that have been relocated to the Western Sahara territory.
The POLISARIO attributes the ineffectiveness of the MINURSO plan to a combination of a hostile Moroccan opposition to the holding of a free and fair referendum and a complete lack of resolve by MINURSO in managing the implementation of the peace plan. The inability or unwillingness of MINURSO to enforce the conditions required to implement a free and fair referendum has led to a situation where no progress can be made without the approval of Morocco as the occupying power of the territory.

The POLISARIO attributes the failure of the MINURSO plan to the following immediate factors:

1. Morocco has been categorically opposed to implementing the principle of transparency in the management of the peace process. POLISARIO believes that transparency is an essential element of any attempt by the United Nations to end the conflict and resolve the referendum question. The lack of transparency threatens to undermine the credibility of the United Nations as an organization responsible for the referendum operation.

2. Although Morocco accepted that the referendum envisioned by the MINURSO peace plan would offer the choice between integration with Morocco and independence, it has repeatedly rejected the possibility that a referendum could lead to independence.

3. The MINURSO peace plan was unilaterally and fundamentally changed in December of 1991 as a result of the modification of the voter registration criteria.

4. Morocco has illegally relocated thousands of its citizens to occupied portions of the Western Sahara territory and is using the modified voter registration criteria to have those people included on the voters' list.

5. Morocco has refused to engage in any direct negotiations with the POLISARIO, and has made repeated declarations that Western Sahara is Moroccan territory and that it will, under no circumstances, accept the result of a referendum that favours independence.

The POLISARIO feels that the United Nations has failed to accept and carry out the responsibility that goes with its legal and political authority to ensure that the Western Sahara conflict is resolved in accordance with the principles of international law. It believes the United Nations has instead shown an unreasonable willingness to tolerate the Moroccans in their changes to certain terms of the authorized MINURSO peace plan in such a way to make its implementation very difficult.

In a submission to the members of the United Nations Security Council, the POLISARIO stated as follows:

The Sahrawi people do not desire war and will continue to undertake all possible efforts to secure a peaceful end and just solution to the conflict for a lasting de-colonization of Western Sahara. However, the Sahrawi people will spare no efforts, if need be, to defend their right to self-determination and independence.

The POLISARIO stated that the international community has a responsibility to take steps to implement the MINURSO plan and resolve the current voter registration impasse. The POLISARIO also recommended that action taken by the international community take into account the following factors:

1. The decolonization aspects of the problem, which requires Morocco as the occupying power to acknowledge and respect the right of self-determination of the Sahrawi and cease its attempts to move Moroccan citizens into the territory.

2. The voter identification process must be resumed, but must be guided at all times by the principle of transparency. The POLISARIO believes that openness, objectivity and transparency are the only way to establish the credibility and legitimacy of the process and believes the United Nations should take all steps open to it to preserve transparency in every aspect of the referendum process.

3. International pressure is required to appeal to Morocco to engage in direct negotiations under the supervision of the United Nations to resolve the outstanding issues. hese negotiations would facilitate the task of the United Nations in implementing the MINURSO plan in a free and transparent manner.

The Position of Morocco

During this mission, CLAIHR did not have an opportunity to visit Morocco or meet with Moroccan officials in the region. Accordingly, Morocco's position is not described in any detail in this report. However, from CLAIHR's previous research and contact with Moroccan representatives in Ottawa, we understand Morocco's position to be that the territory known as Western Sahara was historically part of greater Morocco, that support for this claim can be found in the ICJ opinion of 1975, that it is committed to the peace process and the referendum, and is anxious for the parties to proceed with the process in good faith.

CLAIHR intends to study further the position of Morocco during the Phase II fact-finding mission to Morocco and Western Sahara in the fall of 1997.

II. RECENT DEVELOPMENTS

Spain, traditionally pro-Western Sahara, has recently maintained and even encouraged closer relations with Morocco. For example, Spain has not objected to the European Union ("EU") negotiations with Morocco in 1995 over fishing in Western Saharan waters. In fact, no member of the EU noticed the problem with such dealings. The EU has, however, formally recognized Morocco's role in obstructing a free and fair referendum.

The United States has been relatively active in the conflict but, as with other Western powers, it is concerned with the promotion of peace and stability in the region generally as opposed to securing a free and fair referendum specifically. The U.S. has avoided making any strong statements or commitments to Western Sahara or the Sahrawi people: its official stance is simply to follow the United Nations MINURSO plan. However, the U.S. has reportedly been involved in secret talks between Morocco and the POLISARIO Front and has helped to negotiate the release of POLISARIO members from Moroccan custody. The U.S. needs encouragement to continue these activities.

Recently, the U.S. has (i) failed to react to reports by its representative to MINURSO of Morocco's obstruction of the referendum; (ii) refused to allocate any funds to MINURSO; and (iii) repeatedly threatened to veto a renewal of MINURSO. However, the appointment of Secretary Baker as the UN Secretary General's Personal Envoy and Madeline Albright as Secretary of State (former U.S. ambassador to the United Nations) may lead to greater American involvement in the resolution of the conflict.

South Africa, clearly a major player in the region, also needs support. South Africa had not recognized the SADR, being one of the few sub-Saharan nations that has failed to do so. With historical ties to both Morocco and the Sahrawi, South Africa has been in a very difficult position. Although the ANC has significant links to the POLISARIO, and President Mandela desires to recognize them, he has been unable to do so, as South Africa seeks to balance its foreign policy interests.

In the United Kingdom, there is an all-party parliamentary committee established to monitor the Western Saharan situation. There are members of the House of Lords who have been active in the region, most notably Lord Christopher Winchilsea. n 1993, Britain withdrew its military observers from MINURSO. Britain's position has been influenced by its growing economic interest with Morocco as suggested by its support of a draft version of Security Council Resolution 1033 which would have allowed Moroccan-nominated representatives alone to vouch for the claims of individuals to join the electoral roll. It remains to be seen whether there will be a change in Britain's position with the newly elected Labour government.

International bodies and non-governmental organizations continue to play a role in the region in various capacities. The European Parliament adopted a resolution accusing Morocco of hampering the United Nations peace plan in Western Sahara on March 16, 1995; however, the EU also negotiated directly with Morocco over the fishing rights in Western Saharan territorial waters. The Organization of African Unity has recognized the SADR as a member, despite the objection of Morocco.

In October 1995, Human Rights Watch conducted a fact-finding mission in Western Sahara. Its report, "Keeping It Secret: The United Nations Operation in the Western Sahara", exposed human rights violations in the region as well as the incompetence of MINURSO. There have also been a number of international relief agencies and solidarity groups who continue to visit the refugee camps in Algeria.

III. CONCLUSIONS AND RECOMMENDATIONS

The Way Forward: Suggestions for Constructive Involvement

As was clearly demonstrated to CLAIHR during the mission, the refugee camps in Algeria are highly organized and provide more than just the most basic needs to their inhabitants. Despite the hostile conditions of a desert climate and the restrictions typical of refugee camps (e.g. inability to move otherwise than between camps), people generally receive adequate food, health care and housing. It appears that a significant effort is being made to ensure that the population is well-educated and that they participate in the governance of the camps.

From observations and discussions, the Sahrawis, who have been living in these camps for over 20 years, are determined to see that they are able to vote in a free and fair referendum to decide their future. CLAIHR's assesment is that they will be satisfied with nothing less. Their determined efforts to organize some semblance of a decent life in the camps suggests that they will not be easily pushed aside.

The status quo in Western Sahara is, simply put, unjust and unstable. The continued occupation of Western Sahara, without any concrete plan to hold a free and fair referendum, is not acceptable. It is unfair to all of the people affected throughout the region. It is damaging to the rule of law and it exacerbates conflict in the region. The international community must translate the principle of self-determination, established over 20 years ago in the ICJ case of Western Sahara, into reality.

The parties have agreed to settlement proposals which envision a free and fair referendum on self-determination. The international community must ensure that this referendum takes place. In June 1997, the Secretary-General's Personal Envoy James Baker is expected to meet again with the parties and propose solutions to the Security Council shortly thereafter. It is CLAIHR's view, affirmed by the mission, that any solution which does not secure a free and fair referendum on self-determination will not result in long-term peace.

Recommendations

To assist the parties in holding the referendum, CLAIHR recommends the following:

1. Direct talks between the parties

The talks must be direct to ensure that binding decisions can be taken. Morocco and the POLISARIO need to work together to map the way forward. The international community can assist by encouraging the parties to meet and work pragmatically to resolve the present impasse. Whether through the United Nations or more informal "good offices", interested states could assist, with the consent of both parties, in a variety of ways, such as: hosting the talks; helping the parties to identify the issues to address; designating representatives to provide technical assistance; observing the talks; and assisting the parties in recording and implementing an agreed process that complies with international law.

2. Contact Group for Western Sahara

Key players of the international community should form a "Contact Group" of interested states. While not expressly provided for in the United Nations Charter, an ad hoc Contact Group could be established, either through the Security Council or possibly by consensus. This could provide some concerted and sustained interest in helping the parties to renew and expand their actions to resolve the conflict. A selection of regional players and states from other parts of the globe could group themselves to co-ordinate efforts to assist the parties to advance the process.

This group of key states, acting together, could:

encourage the parties to hold direct talks;

facilitate and monitor the talks;

remain engaged in the issue and be available to help resolve ongoing disputes between the parties; and

ensure that the parties adhere to an agreed process to hold a free and fair referendum.

3. Support greater international scrutiny of the process

Greater international scrutiny is part of ensuring a free and fair process. t assists the parties in clarifying their proposals, plans and positions, which in turn helps ensure that the parties are committed to implementing their solutions and being held accountable for these. The international community should support the work of non-governmental organizations such as CLAIHR and others working in a non-partisan manner to realize a peaceful resolution to the conflict and ensure that a free and fair referendum takes place.

4. Support humanitarian projects in the camps and support NGOs carrying out humanitarian works

Humanitarian assistance to the refugees should be provided, as this helps meet basic human needs and demonstrates the international community's concern. As much as possible, the support should be provided through NGOs with demonstrated capacity to deliver appropriate programs on a non-partisan basis.


Appendix A

 

For the mission, CLAIHR representative Lawrence Thacker interviewed many individuals, in official and private capacities, including the following:

 

SADR Officials

Mohammed Abdelaziz, President of SADR and Secretary-General of POLISARIO

Bachir Mustapha Sayed, Minister of Foreign Affairs and Member of the National Secretariat of POLISARIO

Brahim Ghali , Minister of Defence

Mohamed Sidati , Diplomatic and Political Counsel to President

Youssef Salek Bobbyh, Ambassador of SADR to Algeria

Abba Salek Elhaissan, Chief Prosecutor of SADR

 

POLISARIO

Asdelkader Taleb Omar, Speaker of National Council and Member National Secretariat of POLISARIO

Muhammed Khadad , New Coordinator with MINURSO and former SADR representative to MINURSO Identification Commission

Walad Mousa, Governor of Smara

Mustapha Mohummed , Governor of Auserd

Mamma Sidi , President of National Union of Sahrawi Women

Mohammed Ali Isid' Al Bachir , Vice-Speaker of National Council

Alyazid Hamdi , Member of Foreign Affairs Committee of National Council

Andalah Abdellay , Secretary of Smara

El Azed Hamdi , Committee of Foreign Relations, Member of National Council

M'hamed Zeiwu , Founder and Elder of POLISARIO

Mustapha Baba Sayed, POLISARIO Representative to Canada

Brahim Mokhtar , POLISARIO Representative to the United Kingdom and Ireland

Ibrahim Salem , POLISARIO Representative to Benelux countries (at the time, POLISARIO Representative to India)

 

Other Officials in Camps

Malaimine Sedik , Former Minister of Foreign Affairs

Suiliky Belgacem , Former Chief of District

Ahmed Bel Kasem , Former Chief of District

Dadah Babana, Deputy Director of Protocol

Abeida Cheikh, President, Sahrawi Red Crescent

Fatata Houd , Headmaster, 27th of February School

Hamad Ahmed Yahya , Headmaster of Primary School

 

Algerian Officials

Ahmed Attaf , Minister of Foreign Affairs

Lahcene Moussaoui , Secretary of State of Ministry of Foreign Affairs, Director of Maghreb Affairs

Abdelkader Messaher, Ambassador and Director General, African Department, Ministry of Foreign Affairs

Abdesselam Bedrane , Ambassador, Embassy of Algeria, Canada

Naceur Boucherit , Political Counsellor, Embassy of Algeria, Canada

 

In addition, CLAIHR spoke to a number of Moroccan prisoners of war currently held by the POLISARIO.


HUMAN RIGHTS - WESTERN SAHARA HOMEPAGE