‘Little is said about the wall that the United States has raised on the Mexican border and little is said of the fences in Ceuta and Melilla. Almost nothing is spoken of the wall in the West Bank, which perpetuates Israel's occupation of Palestinian lands, and yet it will be a little over 15 times longer than the Berlin wall. And nothing, nothing at all, is spoken of the wall of Morocco that has perpetuated Morocco’s occupation of the Western Sahara for 20 years. This wall, land-mined from end to end and guarded by thousands of soldiers from end to end, measures 60 times longer than the Berlin wall. Why are these walls so high-flown and so mute? Are they the walls of incommunication that the mass media of communication build every day?’ Eduardo Galeano

Blog full of information about the Berm
Landmine Action’s presence near the Berm and their video about Sahrawi
Victims of the Moroccan Berm and its landmines

1. INTRODUCTION

On 9 July 2004 the International Court of Justice (ICJ) ruled on the illegality of the construction of the wall that Israel has been raising in the Palestinian occupied territories. It was 36 years ago (16 October 1975) that the ICJ considered the possibility of rights of sovereignty by Morocco and Mauritania over the territory of Western Sahara. ICJ’s webpages with all the international legal documents Three decades separate these two opinions of the court, which could not act within its litigious function to dictate any obligatory judgement to these two states, because they both openly violate international law, and that neither Morocco nor Israel supports its jurisdiction.

So, although it must be recognised that, strictly speaking, neither of the two court opinions legally bind the two states, so too is it beyond doubt that both opinions constitute a clarification on the legal status of both territories and on the two states occupying them. On the other hand, it should be recalled that the international literature which has addressed the analysis of the advisory opinions of the court has highlighted the fact that, despite their non-binding value, in practice it tends to give ‘a similar, if not identical, value to the judgements’, possessing an ‘indubitable legal, political and moral value’. Since the court had the opportunity in extenso to comment at length about a case which parallels with the Saharawi, this paper analyses whether some of the findings are equally comparable to it, and the extent to which they apply to the Western Sahara issue.

2. ISRAEL AND MOROCCO ARE OCCUPYING POWERS

The court has no hesitation on this claim in the Palestinian case, especially as Israel claims to be the sovereign of what is otherwise commonly referred to as the occupied territories. In the Western Sahara issue, it is clear that the legal position of Morocco is an occupying power. If, as in 1975 the court established clearly, Morocco possesses no title or any right to sovereignty over the territory, there is no other option but to affirm that, if it continues in a territory that does not belong to it, then it is occupying it illegally. Morocco aims to be the administering power of the territory, a claim that unfortunately has maliciously and repeatedly been shared on several occasions by senior members of successive Spanish governments. The truth is that the United Nations, far from recognising Morocco as the administering power, has on various occasions objected to such an unauthorized occupation. The colonial Spanish withdrawal would have required the delivery of the territory to its inhabitants, either through a referendum on self-determination, as occurred in the vast majority of colonial African territories, or by a provisional administration of the United Nations, but never in an agreement in concert with Morocco and Mauritania, followed with a military occupation by them.

The implementation of the Madrid Accords led to a situation of constant violation of international law, since it led to an occupation, firstly on the part of Morocco, and then after Mauritania’s withdrawal from the territory, whereas the resolution 2625 (XXV) establishes it does ‘not recognize as legal any territorial acquisition resulting from the threat or use of force’, a statement that reminded the court of its 2004 opinion. So, even before Morocco occupied the territory through the Green March, the Security Council had requested that the march was not carried out, and once made, urged it to withdraw.

From another point, resolutions of various bodies of the United Nations have expressly qualified the situation as occupation. In this regard, remember that when, after Mauritania’s withdrawal from the conflict, Morocco occupied this part of the territory which Mauritania left, that the General Assembly resolution 34/37 of the UN on 21 November 1979 legitimized the armed POLISARIO Front struggle, profoundly deploring ‘the worsening situation, as a result of the persistent occupation of Western Sahara by Morocco, and the extension of the occupation into the territory recently evacuated by Mauritania’. Similarly, there is resolution 12 (XXXVII) of 6 March 1981, of the Commission on Human Rights on ‘Denial to the people of Western Sahara of their right to self-determination and other human rights as a result of the occupation of their territory by Morocco’, in which it stated it ‘deplores the continuing occupation of Western Sahara by Morocco.’

In accordance with the United Nations, the territory of Western Sahara is a non-autonomous territory, pending, therefore, on decolonization. The issue remains under review annually before the Commission on Decolonisation. Among other reasons, this is why, after 30 years of occupation, no state has recognised the annexation of Western Sahara by Morocco. If somehow United Nations had come to recognise the nature of administering power in Morocco, it is clear that any state – at least its major allies, see France – would have proceeded to recognise the annexation.

Furthermore, as regards the legal position of Spain, it is worth remembering that, as noted on several occasions by the UN general assembly, ‘in the absence of a decision by the General Assembly itself, in the sense that a non-self governing territory had attained a full measure of self-government in accordance with Chapter XI of the Charter, the administering power concerned should continue to transmit information under subsection (e) of Article 73 of the Charter with respect to that territory’. Therefore it is clear that, although de facto it is not, legally Spain continues to be the administering power of the territory, and Morocco is an illegal occupant of it.

It is obvious that the tripartite agreements of Madrid (November 1975) through which Spain handed the territory to Morocco and Mauritania did not assume a transfer of sovereignty over the territory because, among other reasons, Spain was only the administrator of it. In this sense it should be interpreted from the Spanish-Algeria joint statement which was completed a few years later (1 May 1979), that Spain claimed that ‘its position on the basis that it definitively terminated its administration of the territory on 26 February 1976 could not mean a transfer of sovereignty, because of the non-autonomous status of the territory, within the meaning of Article 73 of the Charter of the United Nations’.

On 29 January 2002, at the request of the president of the security council, the General Counsel and Assistant Secretary General for Legal Affairs of the United Nations, Hans Corell, issued a report on ‘the legality in the context of international law, including relevant resolutions of the Security Council and General Assembly of the United Nations and the agreements on Western Sahara, of the actions allegedly taken by the Moroccan authorities, namely the offering and signing of contracts with foreign companies for exploration of mineral resources in Western Sahara’. Among the most important issues dealt with therein and to be raised here are highlighted as follows:

(a) ‘the Madrid Agreement did not transfer sovereignty over the territory, nor confer upon any of the signatories the status of administering power, a status which Spain alone could not have unilaterally transferred. The transfer of administrative authority over the territory to Morocco and Mauritania in 1975 did not affect the international status of Western Sahara as a non-autonomous territory’.

(b) ‘after the withdrawal of Mauritania from the territory in 1979 and the conclusion of the Mauritanian-Saharawi agreement of 19 August 1979, Morocco has administered the territory of Western Sahara alone. Morocco, however, is not listed as the administering power of the territory in the list of non-self-governing territories of the United Nations’.

Obviously, given that Morocco is not entitled to sovereignty over the territory, nor is it the administering power, there is no other qualification for its presence in the territory than that of occupying power.

Having clarified the status of occupying power in these two states (Israel and Morocco), what legal regime is applicable in these territories? In its 2004 opinion the ICJ examined this question in relation to four key issues: the principle of the prohibition of the use of force in international relations; international humanitarian law; international law of human rights; and the right to self-determination of peoples – to then establish the extent to which Israel violates these principles and rights with the construction of its wall. Therefore, we are going to follow the steps given by the court to see to what extent the consequences are equally applicable to the occupation of the Western Sahara territory.

3. WALLS ERECTED BY ISRAEL AND MOROCCO VIOLATE PROHIBITION OF THE USE OF FORCE IN INTERNATIONAL RELATIONS

The opinion of the court on the Israeli wall reaffirmed its own jurisprudence (especially from the issue of the military and paramilitary activities in and against Nicaragua: Nicaragua v. USA), asserting that the principle of the prohibition of the use of force in international relations, reflected in both Article 2.4 of the Charter and Resolution 2625 (XXV), is now part of customary international law, and, by virtue, the territory of a state cannot be the object of acquisition by another state resulting from the use of force. That means that the construction of the wall constitutes a violation of this principle, insofar as it seeks to consolidate little by little some borders that international law does not recognise to Israel.

The similarity to the wall which was built for more than two decades by Morocco in the Western Sahara, and that currently separates the occupied territories from that controlled by the POLISARIO Front (known by the Saharawi people as the ‘liberated territories’) is evident, because the purpose of its construction was, and remains, to impede the return of the Saharawi to the territory, thus consolidating the occupation. If the court had to answer the same question with regard to the Saharan conflict it could hardly reach a different conclusion.

4. ISRAEL AND MOROCCO VIOLATE INTERNATIONAL HUMANITARIAN LAW IN THE OCCUPIED TERRITORIES

In the case of the Israeli wall, the court made a number of important statements in relation to the applicable law in the territory, saying that although Israel is not part of the IV Hague Convention on laws and use of war on land (1907), this is fully applicable to the case, because it now forms part of customary international law. Also, confirming earlier statements by the General Assembly, the Security Council and Israel’s own Supreme Court (Case 30 May 2004) stated that the IV Geneva Convention of 1949 on the protection of civilian persons in time of war is applicable de jure in the occupied territories. Israel claimed that at the time it occupied the territories in 1967 they were not under sovereignty but under Jordanian administration, so it would not meet one of the requirements of application laid down in Article 2 of the Convention: that there is armed conflict and this conflict has arisen between two contracting parties. However, the court rejected this approach because Article 2.2 of the convention affirms its applicability ‘in all cases of partial or total occupation of the territory of a High Contracting Party, even if such occupation meets no resistance’ . Therefore, to affirm the existence of an armed conflict between two contracting parties is irrelevant to the status of the territory prior to the Israeli occupation.

It is easy to translate these same arguments to the Western Sahara conflict. Indeed, in the same way as Jordan with respect to the occupied Palestinian territories until 1988, Spain was the administering power and not sovereign of the territory, as on the other hand clearly established in 2002 by the Assistant Secretary General for Legal Affairs of the United Nations. The Geneva Conventions

Consequently, in regard to international humanitarian law, the opinion states that, with the construction of the wall, Israel violates such provisions of the Rules of the Hague – prohibition of confiscation of property (art. 46), as of the VI Geneva Convention, prohibiting mass forcible transfers and deportations of the population of the territory and, in the opposite direction, to move the occupying state’s natives into the occupied civilian population (Art. 49); prohibition of actions which cause unemployment to induce people to work for the occupying power (Art. 52); prohibition of destruction of homes (Art. 53); prohibition of exploitation and plunder of the resources of the territory, preventing the minimum supply to the population (Art. 59).

If we moved these statements once again to the Western Sahara case, the Moroccan violations of international humanitarian law are equally obvious: remember the successive ‘Green March’ of Moroccan populations into the territory of Western Sahara in order to alter the composition of the population and attempt to distort the composition of the Saharawi census on an increasingly distant referendum on self-determination; equally remember the contracts concluded by Morocco with foreign companies to explore and exploit the resources of the territory and the content of the 2002 report on this issue by Hans Corell, the Assistant Secretary General for Legal Affairs of the United Nations.

5. ISRAEL AND MOROCCO VIOLATE INTERNATIONAL LAW OF HUMAN RIGHTS IN THE OCCUPIED TERRITORIES

Israel also argues for the inapplicability in the occupied territories of the international law of human rights, in particular of the two International Agreements of 1966 and the Convention of Children 1989, of which it is a state party, under the surprising argument that the objective of these treaties is to protect citizens from their own governments in peacetime, so that would be incompatible with humanitarian law.

As noted by the court, applying pure logic, ‘the drafters of the covenants had no intention of allowing states to avoid their obligations to exercise jurisdiction outside national territory’. According to this statement, the opinion states that, through the construction of the wall, Israel violates specific provisions of Civil and Political Rights Agreement: freedom of movement and residence (Art. 12.1), prohibition of arbitrary or unlawful interference in private and family (Art. 17.1) – as required by the Economic, Social and Cultural Rights Agreement, and the Convention of the Rights of the Child, such as the right to work, health, education and an adequate standard of living.

Morocco applies identical policies as the Israelis in the occupied territories of Western Sahara: police harassment, illegal detentions, torture, invasion into private life and restrictions to freedom of movement and residence are a daily practice that the Saharawi have to bear in their own territory. In this sense, the conflict by the Saharawi human rights activist Aminetu Haidar, who was prevented from returning to her homeland after receiving the 2008 Human Rights Prize from the Robert F. Kennedy Foundation (that puts to the test the relations of Morocco and the European Union), trials against Saharawi citizens before Moroccan courts in Western Sahara and Morocco without even minimal due process, the very hard punishments in judgements for participating in demonstrations in favour of self-determination of the territory, or the limitations imposed by the occupying state to access certain positions of the administration for the Saharawi people, are just a few samples of how Morocco openly violates the international law of human rights.

6. ISRAEL AND MOROCCO VIOLATE THE RIGHT TO SELF-DETERMINATION

For four decades the United Nations general assembly has clearly and repeatedly affirmed the right of the Saharawi people to self-determination. As noted by the International Court of Justice regarding the Israeli wall, its construction helps to accentuate the violation of this right, because it further cripples the Palestinian territory, physically divides even more the recipient of the right to self-determination, the Palestinian people, and ignores the principle of uti possidetis iuris (which affirms the inviolability of borders drawn during colonial times), linked more generally, as noted by the International Court of Justice, to decolonization. Obviously, the wall is not the main cause why the Palestinians could not exercise their right to self-determination, but is another element that contributes to it and therefore also violates this right. Video of Carlos Ruiz Miguel, professor at Universidad de Santiago de Compostela talked in a seminar titled, "Who has the right of Self-Determination in Contemporary International Law?"

The Moroccan wall that divides the territory of Western Sahara into two also prevents the Saharawi population in the Tindouf refugee camps from returning to their land, cuts off its territorial integrity and obviously violates the above-mentioned principle of uti possidetis iuris and therefore also constitutes a violation of the right to self-determination of the Saharawi people.

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* Dr. Juan Soroeta Liceras is professor of Public International Law at Euskal Herriko Unibertsitatea University, Spain. Article translated from Spanish by Dr Liceras and Konstantina Isidoros, University of Oxford, July 2011.
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