Gaborone, (SPS) – “The ruling by the African Court of Human and Peoples’ Rights on the need to find a permanent solution to the Moroccan occupation of Western Sahara, was a proof of the failure of the Moroccan policy of buying consciences to legitimize this occupation,” underlined the ambassador of the Sahrawi Arab Democratic Republic (SADR) to Botswana, Malainin Lakhal.
In a statement to APS, the Sahrawi diplomat affirmed that the ruling issued, last Thursday, by the African Court “is historic in every respect,” saying that “whatever the nature of the case raised, the Court has set out, for the first time in the history of African justice, to put things straight, insisting on the essence of the facts of the conflict, that is the Kingdom of Morocco is only an occupying power, the Sahrawi people should exercise their inalienable right to self-determination and independence, and all states have the responsibility and obligation to act for the implementation of this right.”
The African Court, he added, drew the attention of “all states to the fact that they have a direct responsibility to support the SADR to complete the process of decolonization, and that they should refrain from practices that could impede it,” saying that “this is a very strong position of the African Court, consistent with international law.
For the Sahrawi diplomat, the ruling of the African Court has aborted the propaganda practiced for decades by the Moroccan occupier, recalling that the Makhzen’s diplomacy has been working for over 20 years to promote the fact that “the principle of self-determination is obsolete, and that the logic of things is now what it calls ‘Political Realism’ which means, according to the Makhzen, expansion at the expense of neighbors and the violation of international law to serve the interests of some to the detriment of the Sahrawi people”.
“All the funds and bribes squandered by the occupation regime in the purchase of consciences, positions of certain states and personalities, have fallen into the water, after the African Court affirmed that the right to self-determination is a binding rule in international law, and it is not for anyone to violate it and contribute to its violation,” he added.
African Court upholds the right to self-determination and independence of the Saharawi people:
In a landmark ruling of 22 September 2022, the African Court on Human and Peoples’ Rights denounced the Moroccan occupation of Western Sahara as a serious violation of the Saharawi people’s right to self-determination.
The Court ruled that “both the UN and the AU recognise the situation of the Saharawi Arab Democratic Republic as one of occupation and consider its territory as one of those territories whose decolonisation process is not yet fully completed.”
Below the Press Release of the Ministry of Information of the SADR on this ruling:
MINISTRY OF INFORMATION OF THE SAHARAWI ARAB DEMOCRATIC REPUBLIC
African Court upholds the right to self-determination and independence of the Saharawi people, and underlines the obligation of African States to assist it
In a landmark ruling of 22 September 2022, the African Court on Human and Peoples’ Rights denounced the Moroccan occupation of Western Sahara as a serious violation of the right to self-determination.
It recalls the obligation of all states not to recognise this occupation and to assist the Sahrawi people in the full realisation of their right to self-determination and independence.
On 22 September 2022, the African Court on Human and Peoples’ Rights issued a landmark ruling, unprecedented on the African continent, condemning the illegal presence of Moroccan forces in Western Sahara as a military occupation, in violation of international law.
This was the first time that the Court had dealt with a case dealing with the right to self-determination and independence, and the Court gave full importance to this principle which has been a constituent part of states in Africa, as part of the vast decolonisation movement.
The Court considers that this right, enshrined in Article 20 of the African Charter on Human and Peoples’ Rights, constitutes a peremptory norm of international law, falling within the scope of jus cogens, which does not tolerate any derogation. This entails an obligation erga omnes for all states not to recognise a situation created in violation of this right. Similarly, States must assist oppressed peoples. In this regard, they must refrain from any act incompatible with the nature of the right to self-determination or the full enjoyment of this right by the peoples concerned.
Having established this principle, the Court ruled that “both the UN and the AU recognise the situation of the SADR as one of occupation and consider its territory as one of those territories whose decolonisation process is not yet fully completed”. This is why direct negotiations between the two AU members SADR and Morocco should be concluded, with the sole purpose of “organising a referendum to guarantee the right to self-determination of the people of Western Sahara”.
From this reality, which is obvious to all, the Court finds that the Moroccan occupation of part of the territory of the SADR seriously violates the right to self-determination and independence of the Sahrawi people. Consequently, the Court finds, AU Member States have an obligation to assist the Saharawi people in the realisation of their right to self-determination and not to recognise the situation and violations resulting from this illegal occupation.
Indeed, the right to self-determination and independence “imposes an international obligation on all States Parties to take positive steps to realise this right, including assisting oppressed peoples in their struggle for freedom and refraining from actions incompatible with the nature or the full enjoyment of this right. The Court emphasises that “in view of the fact that part of the territory of SADR is still occupied by Morocco, there is no doubt that the States Parties to the Charter have an obligation, individually and collectively, towards the people of SADR to protect their right to self-determination, in particular by assisting them in their struggle for freedom and by not recognising the Moroccan occupation and any violation of human rights which may have resulted from that occupation”.
The Court concludes that the admission of the Kingdom of Morocco to the African Union does not confer any legality on the occupation of Western Sahara, and on the serious violations of fundamental rights required by its maintenance. Indeed, the Kingdom of Morocco made no reservation in Article 4(b) of the Constitutive Act as to “respect for the inherited borders existing at the time of accession to independence”. Consequently, having been admitted within its internationally recognised borders, excluding Sahrawi territory, the Kingdom of Morocco sits in the continental organisation alongside the Sahrawi Arab Democratic Republic, which is a founding member of the African Union.
The Court concludes, “all AU member states have a responsibility under international law to find a permanent solution to the occupation and to ensure the enjoyment of the right to self-determination of the Sahrawi people and to do nothing that would recognise such occupation as legitimate or impede the enjoyment of that right.”
With this judgment of capital importance, the African Court is in line with the International Court of Justice and the Court of Justice of the European Union, but goes further, underlining in exemplary terms what the right to self-determination has been in the history of African peoples, in order to better stigmatise the military occupation of Western Sahara by Morocco. Thus Mohamed Mbarek, Saharawi Minister for Justice, observes: “The doors of law are closed to the occupier: the coherence and the international judicial consensus are complete to say that the Kingdom of Morocco, which has never had the slightest “sovereignty” over Western Sahara, is illegally occupying this territory, in serious breach of international law. The serious disruption of international public order that is Morocco’s military occupation and colonisation of the territory must now cease.
Mohamed Mbarek made the link with the proceedings under way before the Court of Justice of the European Union: “Peoples have a future only if they respect the law, and respect for the law is the guarantee of peace. The Kingdom of Morocco must break its denial and face reality, and allow the UN and the AU to decolonise the territory. African states must take advantage of this decision of the Court to unite around the right to self-determination and independence, which is at the heart of their history.
Bir lehlu, 22 September 2022”.
Western Sahara is a Non-Self-Governing Territory of the UN that lies in the Sahel region bordered by Algeria, the Kingdom of Morocco, and Mauritania. This territory is home to the Sahrawis, a collective name for the indigenous peoples living in and around the region. They speak the Hassaniya dialect of Arabic. Similarly, many others also speak Spanish as a second language due to the region’s colonial past.
Western Sahara has been on the decolonisation agenda of the UN and AU for more than fifty years. In 1963, Western Sahara was included on the list of non-self-governing territories under Article 73 of the UN Charter to which the UN General Assembly resolution 1514 (XV) of 1960 on the Granting of Independence to Colonial Countries and Peoples.
On November 6, 1975, Morocco launched the so-called ‘Green March’, a march of 350,000 Moroccans, a number four times the size of the Sahrawi population back then, into the territory of Western Sahara.
According to Adala UK, on that day, Morocco organized what it called a “Green March” to officially invade the North of Western Sahara moving 350,000 Moroccan settlers to the territory. This occupation coincided with the termination of the Spanish status as Administrative Power, creating a vacuum that imposed on the UN to assume its responsibility there.
Subsequently, the UN Security Council deplored the holding of the march, calling upon Morocco to immediately withdraw all the demonstrators from the territory of Western Sahara; however, its effort was in vain.
The Polisario Front liberation movement continued its struggle to end all foreign occupation of its country and in 1976 formed a government-in-exile and declared the Saharawi Arab Democratic Republic. In November 1984, the Polisario Front’s SADR was recognised by the then Organisation of African Unity (OAU), now the African Union (AU), which led to the withdrawal of Morocco from the OAU in protest. In May 1991, the Polisario Front and Morocco ended many years of fighting following an UN-sponsored peace settlement, culminating in the establishment of the UN Mission for the Referendum in Western Sahara (MINURSO), which is assuming its responsibility till nowadays.
Despite a cease-fire in 1991 that put an end to the armed combat, Western Sahara remains a disputed territory. Nowadays, Morocco controls parts of the territory. However, the United Nations refers to Western Sahara as a non-self-governing territory and maintains a stance favoring self-determination for its people.
The UN body is attaching great interests to the Sahrawi cause, expressing willingness to find a solution ensuring the self-determination of the Sahrawi people, in accordance with the relevant resolutions of the Council.
After almost 30 years of compliance with a 1991 ceasefire, Morocco and the Polisario Front have resumed war in Western Sahara, as Morocco torpedoed the 1991 ceasefire through its act of aggression on the Sahrawi Liberated Territories on 13 November 2020.
The Moroccan new act of aggression has not only ended the ceasefire and related military agreements but has also undermined the UN peace process in Western Sahara and plunged the region into another spiral of extreme tension and instability.
Both the UN Secretary-General and the Security Council have confirmed the breakdown of the 1991 ceasefire on 13 November 2020. In his report (S/2021/843; para 2) dated 1 October 2021, the UN Secretary-General acknowledged, among other things, “the resumption of hostilities” between the occupying state of Morocco and the Frente POLISARIO. For its part, in its resolution 2602 (2021) adopted on 29 October 2021, the Security Council noted “with deep concern the breakdown of the ceasefire” (PP 14).
The acknowledgment by both the UN Secretary-General and the Security Council of the breakdown of the 1991 ceasefire and the realities on the ground render any attempt to deny or underplay the seriousness of the current situation in MINURSO’s area of operation unacceptable and even misleading at a time when the occupying state of Morocco continues its aggression on the Sahrawi Liberated Territories and its deliberate targeting and killing of civilians and destroying their properties.
The final status of the state of Western Sahara will only be settled when a UN-supervised referendum is held in which the country’s inhabitants must exercise their legitimate right to self-determination.