Theme: The establishment of a human rights monitoring mechanism in the Western Sahara, preferably through an expansion of MINURSO’s mandate, would change the underlying dynamics of the conflict and allow for progress in the negotiation process.

Summary: The focus on human rights in the Western Sahara has increased the visibility of the conflict and the pressure to resolve it, creating opportunities to break the current impasse that third parties should seize. A human rights monitoring mechanism, preferably as part of MINURSO, could serve as a confidence-building measure. Moreover, a firm position regarding the parties’ human rights obligations would set a precedent for an international mediation with more muscle, thus changing the conflict’s underlying dynamics. Close coordination between Spain and the UK to establish a human rights monitoring mechanism would neutralise French opposition to it, alter the balance of forces within the Group of Friends of the Secretary General on Western Sahara (the ‘Group of Friends’) and give rise to the conditions necessary to increase its efficiency. At the upcoming April session, a Security Council decision to set up a human rights monitoring mechanism would allow for progress in the negotiation process, bringing closer the resolution of the Western Sahara conflict.

Analysis: In the last two years, the need to establish a human rights monitoring mechanism together with the possible expansion of the current mandate of the United Nations Mission for the Referendum in Western Sahara (MINURSO) were the primary focus of the Security Council debates on Western Sahara. Unless prior agreement on the matter is reached, the debate is likely to resume with even greater intensity at the upcoming Security Council meeting to be held in April 2011. At this meeting, the Council will convene to consider the next report of the Secretary-General on the situation in the Western Sahara and decide on the extension of MINURSO’s mandate.

This year Spain is not a Security Council member. However, as a member of the EU, and the ‘Group of Friends’ in particular, Spain will inevitably be drawn into the debate and will have to face demands for it to adopt a clear stance on the matter. As far as Spanish diplomacy is concerned, this is not only a challenge but also an opportunity to show leadership in multilateral settings by establishing alliances and launching initiatives that contribute to resolving a situation that is widely considered unsustainable. In Resolution 1920 of 30 April 2010, the Security Council also recognised that ‘the consolidation of the status quo is not acceptable in the long term’.

Human rights: A Stumbling Block on the Road to Peace?
There is concern that the increased focus on human rights might distract the attention of the Security Council from the political issues that are at stake in Western Sahara. Another criticism is that rather than being a demand driven by true concern, the Polisario Front’s insistence on the human rights issue is a tactical ploy to attack Morocco.

The focus on human rights in the Security Council debate on the Western Sahara must be seen in a wider context. Since the end of the Cold War, it has been the practice of the Security Council to link human rights to the maintenance of international peace and security. By way of example, Security Council Resolution 688 (1991) condemned ‘the repression of the Iraqi civilian population’, demanded that Iraq put an end to it ‘as a contribution to remove the threat to international peace and security in the region’ and expressed hope that a dialogue would ‘ensure that the human and political rights of all Iraqi citizens are respected’.

A more recent example is Security Council Resolution 1970 (2011).[1] After deploring ‘the gross and systematic violation of human rights, including the repression of peaceful demonstrators’, the resolution refers the situation in Libya since 15 February 2011 to the International Criminal Court (ICC) and underlines ‘the need to respect the freedoms of peaceful assembly and of expression, including freedom of the media’. Acting under Chapter VII of the UN Charter, Resolution 1970 calls for ‘steps to fulfil the legitimate demands of the population’ and urges the Libyan authorities ‘to allow immediate access for international human rights monitors’ and to ‘immediately lift restrictions on all forms of media’.

Ignoring the human rights situation in Western Sahara and failing to examine it by the standards applied to Libya at the upcoming April session would expose the Security Council to allegations of selectivity in the application of universally-recognised norms. This could seriously undermine its credibility and thus affect its capacity to maintain peace and security in the region.

Furthermore, by putting on the table of the Security Council the expansion of MINURSO’s mandate, the Polisario Front has integrated into its diplomatic strategy a recommendation made years earlier by international human-rights organisations (Amnesty International’s campaign goes back as far as 1992). Be that as it may, a Security Council decision to give a mandate to MINURSO to monitor human rights in Western Sahara and the Tindouf refugee camps (on Algerian territory) would require the consent of Morocco, the Polisario Front and Algeria, putting to the test the commitment to human rights of all three parties.

The Focus on Human Rights: Effect Rather than Cause of Conflict Irresolution
In 2006 the UN Office of the High Commissioner for Human Rights (OHCHR) concluded in a confidential report leaked to the press[2] that almost all violations against the people of Western Sahara stemmed from the non-implementation of the right to self-determination. This suggests that rather than being the cause, the focus on human rights is an effect of the failure to find a political solution that allows self-determination. Against the background of broken promises to hold a referendum, the lack of viability of the armed struggle and a stalled diplomatic process, the right to self-determination has become a major campaign theme for Sahrawi activists on the basis of Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted by the UN General Assembly in 1966.

In order to repress their activities and to intimidate the population of Western Sahara, the Moroccan authorities have used legislation prohibiting attacks on Morocco’s ‘territorial integrity’. In this context, violations of the rights of expression, association and assembly have occurred as well as unfair trials, ill-treatment, torture and police violence. Morocco has further restricted media access and expelled international observers. A 2008 Human Rights Watch (HRW) report[3] concluded that the ‘limits to Morocco’s progress on human rights are apparent in the way authorities suppress opposition to the officially held position that Western Sahara is part of Morocco’.

Human rights violations linked to the lack of a resolution of the conflict have also been documented in the Tindouf camps administered by the Polisario Front. For example, in September 2010, the police officer Mostafa Salma Sidi Mouloud was arbitrarily detained after publicly expressing support for the Moroccan autonomy proposal –which excludes a referendum with an independence option as advocated by the Polisario Front– and announcing that he would further promote it in the Tindouf camps.

Increasing the Visibility of a Forgotten Conflict
In a 2004 interview to the Public Broadcasting Service (PBS), the former US Secretary of State and Personal Envoy of the Secretary-General for Western Sahara from 1997 to 2004, James Baker, pointed out that its low profile in the international order made the resolution of the Western Sahara conflict difficult to achieve. It would therefore seem fair to conclude that by raising its profile on the international agenda and making it more visible[4] the focus on human rights has added pressure to resolve the conflict, and thus the chances that it this might occur.

Three major events have strengthened international solidarity on the basis of the human rights discourse: the 2005 Sahrawi uprising (intifada), Aminetu Haidar’s defiance in resisting her expulsion from El-Ayoun through a hunger-strike in 2009 and the actions linked to the Gdeim Izik protest camp in November 2010. The challenge is to design diplomatic strategies that take advantage of the pressure and interest that the human rights issue has aroused to transform the relations between the stakeholders and break the impasse. In this endeavour, third parties play a key role.

The Need to Create New Dynamics to Make the Diplomatic Process Advance
The 2007 International Crisis Group (ICG) report, ‘Out of the Impasse’, anticipated that without a change in the underlying dynamics of the conflict, efforts to find a negotiated solution on the basis of the proposals submitted by Morocco and the Polisario Front were doomed to fail. Since then, several rounds of informal talks have not even yielded an agreement on the framework for negotiations: each party continues to reject the proposal of the other as the sole basis for future negotiations even though the Polisario Front has signalled its willingness to seriously engage with Morocco’s proposal if there is reciprocity.

In a letter addressed to the ‘Group of Friends’, dated 18 June 2010, that was subsequently leaked to the press[5] and which provided a glimpse of his frustration with Morocco’s attitude and lack of progress in the talks, the Personal Envoy of the Secretary-General for Western Sahara, Christopher Ross, asked for support to overcome the current stalemate in the negotiations. Based on the assumption that in order to achieve this goal a change in the underlying dynamics of the conflict is required, three questions shall be briefly analysed: (1) the underlying dynamics of the conflict; (2) the potential role of third parties in changing these dynamics; and (3) the way in which human rights can fit into a strategy to break the impasse.

The Current Dynamics: The Same that Caused the Failure of the Baker II Plan
The failure of the Baker II Plan provides an insight into the dynamics that have undermined peacemaking efforts such as ‘the Security Council’s refusal to bring pressure to bear at crucial moments’.[6] As a matter of fact, in view of the Council’s lack of political will to back his peace plan with the determination needed to implement it, in June 2004 Baker resigned as Personal Envoy. Resolution 1541 gave stronger support to the search for ‘a mutually acceptable political solution’ than to the Envoy’s peace plan. Following a phase of autonomy, the Baker II Plan provided for a true referendum of self-determination –including an independence option– even though voter identification favoured Morocco’s political objectives. While acknowledging the power relations between the parties, the plan was a compromise proposal that sought to salvage basic principles of international law. Despite its initial reluctance, the Polisario Front accepted it but Morocco, the stronger party, flatly rejected the peace plan, stating that ‘the final nature of the autonomy solution is not negotiable’. Demonstrating a clear lack of impartiality, in 2007, the Security Council showed its preference for the Moroccan autonomy plan: Resolutions 1754 and 1783 welcome the ‘serious and credible Moroccan efforts to move the process forward towards resolution’ without referring, in a similar way, to the initiatives of the Polisario Front. In its statement on Resolution 1783, South Africa, a key diplomatic ally of the Polisario Front, warned that praising one proposal over the other would undermine negotiations.

By strongly supporting Morocco’s proposal in advance, the Security Council has ‘disincentivised’ its will to compromise and accentuated the power differential between the parties, transforming it into an asymmetric conflict with implications for the negotiating process: the Council has neither persuaded Morocco of the need to make concessions to achieve its objectives nor has it won the trust of the Polisario Front to engage in negotiations. In an interview published in March 2010,[7] Julian Harston, Special Representative of the Secretary-General for Western Sahara and head of the MINURSO from 2007 to 2009, confirmed that the international community had mainly put pressure on the Polisario Front. Against this backdrop, it seems fair to conclude that the Security Council and the ‘Group of Friends’ need to review their approach if they want to break the current stalemate.

Respect for Human Rights as a Confidence-building Measure
Security Council Resolution 1920 (2010) stresses the importance of ‘making progress on the human dimension of the conflict as a means to promote transparency and mutual confidence’. However, the confidence-building measures currently in place are aimed at facilitating exchanges between Sahrawis from the Tindouf camps and their relatives in the Western Sahara for humanitarian reasons and thus very limited in scope. In contrast, an effective human-rights monitoring mechanism that improves the well-being of the population could help build confidence between the parties to the conflict. Greater freedom of expression, association and assembly could open up spaces for a debate on the political options available without fear of reprisals, which could help build a climate of trust conducive to a more fruitful dialogue.

Albeit with different options, both the Moroccan peace plan and the one introduced by the Polisario Front foresee a referendum. However, without guarantees for the scrupulous respect for the rights of expression, association, assembly and movement, it is unlikely that a fair and free referendum can be held whose result will be accepted as legitimate by the population of Western Sahara. A human-rights monitoring mechanism could help restore confidence among the Sahrawi population in the UN-sponsored process, increasing the chances for a peaceful resolution of the conflict, easing tensions on the ground and creating hope in future opportunities. Moreover, the establishment of a human-rights monitoring mechanism could serve as a precedent to manage and negotiate other issues.

Supporting the establishment of a human-rights monitoring mechanism would be in Morocco’s interest, as well as in that of those partners, such as the US, France and Spain, who have strongly supported its autonomy proposal. While autonomy may be a valid option to fulfil the right to self-determination, it seems unrealistic to expect the Sahrawi people to accept any autonomy plan proposed by Morocco without ample, firm and credible guarantees of respect for human rights, power-sharing and democratic participation. As Bernabé López García pointed out in an article published last November,[8] without democracy, there will be no way out of the Western Sahara problem –and neither will it be solved without respect for human rights–.

The Human-rights Debate: A Turning Point for Change in Conflict Dynamics?
So far, the human-rights debate has followed the same dynamics that have driven the conflict. The positions between the parties are ‘quasi-irreconcilable’, as the Personal Envoy van Walsum used to say; the Security Council lacks the political will to impose solutions while advancing the goals of the stronger party in an asymmetric conflict; and the UN Secretariat lacks the courage and determination to assume its responsibilities and defend the principles it stands for, undermining, as a result, the otganisation’s credibility. As far as the Security Council is concerned, it has subjected the establishment of a human-rights mechanism to a consensus between the parties to the conflict. By taking this approach, the Security Council has provided Morocco with a veto power with regard to the protection of the human rights of a population living in a Non Self-Governing Territory that is under Morocco’s effective control without international legal recognition.

A more effective approach to protect the human rights of the Sahrawi population and to ensure progress in the diplomatic process would be to clarify that the defence of human rights is non-negotiable. The Council could create new dynamics that could mitigate the effects of the conflict’s asymmetric structure, set a precedent for a more forceful mediation and enhance the prospects of success in negotiations.

There is concern that Morocco might leave the negotiating table if pressured on the human-rights issue. But, so far, progress in the negotiation process has been dim anyway. Christopher Ross himself has warned that without greater political will, continuing the talks will only serve to discredit the UN. The protest actions at the Gdeim Izik camp and the forceful demands for economic, social, civil and political rights coming from Western Sahara and many parts of the Arab world suggest that any political solution must include respect for human rights if it is to achieve sustainable peace and regional stability.

What Can Third Parties do in April at the UN?
There is little to lose and much to win. Two concrete examples of how third parties could show a firm attitude with regard to human rights in April are: (1) a recommendation by the Secretary-General to set up a human-rights monitoring mechanism; and (2) a specific proposal for its implementation by the ‘Group of Friends’.

(1) The Secretary-General’s report: perhaps to avoid taking a clear stance vis-à-vis a divided Security Council, to date the Secretary-General has not included in his reports the recommendation made in 2006 by the OHCHR –which is also part of the UN Secretariat– that the UN should explore ‘the best way to ensure adequate and continuous monitoring of the human rights situation in the region’. In a report with obvious gaps, in April 2010 the Secretary-General recognises the duty of the UN ‘to uphold human rights standards in all its operations’ but does not provide any details on how MINURSO is complying with this duty. He reports allegations of human rights violations by both sides, which he forwards to OHCHR, but does not inform on any follow-up action. Neither does he mention the existing legal controversy with regard to the exploitation of natural resources in Western Sahara. Finally, he points out that MINURSO does not have a specific human rights mandate, but fails to indicate whether the mission should have one.

Perhaps the intention of the Secretary-General is to provide a semblance of impartiality. However, as elucidated in the 2000 Brahimi Report, impartiality in UN peace operations does not mean neutrality, but rather an unbiased adherence to the principles of the UN Charter, which include the respect for human rights.

A stronger commitment to human rights would be consistent with the special responsibility of the UN towards the population of a Non Self-Governing Territory which has been effectively deprived of the protections afforded by Article 73 of the UN Charter since Spain unilaterally withdrew from there as the administering power in 1976. In a conference on Western Sahara organised in 2007 by several universities in Madrid, Francesco Bastagli, Special Representative of the Secretary-General and head of the MINURSO from 2005 to 2007, argued that until the right to self-determination of the Sahrawi people materialises, the UN should act as its ‘defence lawyer’ in matters such as human rights and the exploitation of natural resources. In line with this approach, the next report of the Secretary-General on Western Sahara should take up the recommendations brought forward by the OHCHR in 2006, making them in this way a point of reference at the upcoming Security Council meeting.

(2) Is the Group of Friends unable to fulfil its functions? During the last two years, by ignoring the human-rights issue, the drafts prepared by the ‘Group of Friends’, rather than facilitating the process, have been divisive and controversial. The resolutions were only unanimously passed after hours of intensive debate aimed at finding a compromise language that would make it possible to include a reference to human rights but without using the term as such. This state of affairs brings into question the ability of the ‘Group of Friends’ to fulfil its functions. As a matter of fact, in their explanations of the vote on Resolution 1920, Nigeria, Uganda, Mexico and Austria advocated a review of the drafting process to make it more inclusive and transparent.

The drafts prepared by the ‘Group of Friends’ in 2009 and 2010 had to be re-negotiated when they reached the Council. In 2009, pressure by Costa Rica, Mexico, Nigeria and Uganda, together with a favourable British position, led to the introduction of a paragraph in the preamble of Resolution 1971 that used the term ‘human dimension’ to refer to human rights –an anomaly within the UN system–. Following threats by Mexico, Uganda and Nigeria in 2010 to abstain from voting, 18 hours of negotiations at the ambassadorial level and US mediation were required to add three lines to Resolution 1920 that, under a ‘constructive ambiguity’, remind the parties of their human-rights and international cooperation obligations. Importantly enough, the persistent and active diplomacy used by these non-permanent Security Council members opened spaces to negotiate the establishment of a human-rights monitoring mechanism.

Outlook and Options
The events related to the Gdeim Izik protest camp and the revolts in the Maghreb region have increased the pressure on the Security Council to establish a human-rights monitoring mechanism. As far as the incidents related to the Gdeim Izik camp are concerned, the difficulty in verifying conflicting reports on the number of victims without access to the territory, the press restrictions imposed by the Moroccan authorities and the impact of the raid on the camp on the political process suggest that a permanent UN human-rights monitoring presence is needed to ensure that the Security Council receives timely and reliable first-hand information of developments on the ground. The case of Gdeim Izik shows that currently MINURSO is not in a position to fulfil that role mainly for two reasons: (1) the absence of a specific human-rights mandate authorising the mission to investigate and verify allegations of violations; and (2) the obstacles (eg, restrictions on access) the mission faces in the implementation of its operations.

There are indications that things might move forward. In its explanation of the vote on Resolution 1920 (2010), the US urged the parties ‘to work with the international community to ensure full respect for human rights in both Western Sahara and in the Tindouf camps’. Presumably, in order to avoid further divisions within the Security Council on the expansion of MINURSO’s mandate and to build consensus, the UK has circulated a non-paper outlining alternative options. With a toll of 12 members of the security forces killed in events related to the raid on the Gdeim Izik camp, Morocco might reconsider its opposition to the deployment of international human rights monitors. Given the ongoing revolts in the region, the French veto to the term ‘human rights’ only serves to discredit its government. Criticism of its silence and collusion towards the revolts in Tunisia and Egypt suggest that France might have to review its diplomatic strategy. As a matter of fact, in an article recently published in Le Monde, a group of French diplomats demanded a more coherent foreign policy that should be developed with due regard to values of democracy and solidarity.[9]

Also in Spain, increasingly more voices recommend a review of the current diplomatic strategy for the Maghreb region (see, for example, the op-ed “Bucle marroquí” published in El País, 7/XII/2010).[10] Clearly, there is a gap between the political strategy and public statements on Western Sahara, which is narrowing down the scope for manoeuvre of Spanish diplomacy.

According to diplomatic sources, in the Group of Friends ‘the silence of Spain is deafening’. However, at a session of the Foreign Affairs Commission of the Spanish Congress of Deputies (Congreso de los Diputados) held on 18 November 2010, the Foreign Minister Trinidad Jiménez stated that Spain had requested a year earlier the expansion of MINURSO’s mandate in the field of human rights.[11] In a different instance, at a press conference held in Bolivia on 8 November 2010, the Spanish Foreign Minister suggested, in relation to the Gdeim Izik events, that the UK Presidency could convene the Security Council. However, the informative meeting of the Security Council on the matter, which was held on 16 November, took place at the sole request of Mexico.

In order to develop a more coherent foreign policy and increase Spain’s leadership capacity in international forums, a two-pronged approach could be helpful: on the one hand, a serious debate should take place in Spanish society to build the necessary consensus to close the gap between public statements and political strategy; on the other hand, different ways should be explored to translate the stated political strategy into diplomatic action. Regarding the latter, a possible course of action could be joining forces with the UK in its efforts to establish a human-rights monitoring mechanism, thus neutralising any possible opposition to it (including by France) and changing the balance of forces within the ‘Group of Friends’. By taking such an approach, Spain could contribute to making the ‘Group of Friends’ more balanced and therefore more able to prepare a draft resolution in April that is acceptable to all Security Council members and to play a constructive and relevant role to help resolve the conflict.

Which Human-rights Monitoring Mechanism?
It appears that the expansion of MINURSO’s mandate is no longer the central issue, but one of the available options to set up a human-rights monitoring mechanism. Even though MINURSO continues to be the preferred option (eg, by the Polisario Front and civil society organisations), there is also a willingness to negotiate an alternative mechanism as long as it is established as a permanent field-presence under the mandate of the Security Council. One of the relevant options discussed in this context is the opening of a Regional Office by the OHCHR.

(1) Restoring the credibility and legitimacy of MINURSO: currently only a few UN peace operations with a traditional cease-fire monitoring mandate (eg, UNFICYP in Cyprus) lack a human-rights component. In contrast, in addition to a cease-fire monitoring mandate, MINURSO also has the mandate to organise a referendum in accordance with the 1990 Settlement Plan. Comparatively, the UN mission deployed in Southern Sudan (UNMIS), where a self-determination referendum took place in January 2011, has a human-rights component with a specific mandate. In fact, MINURSO’s mandate implicitly contains human-rights responsibilities, such as maintaining law and order to ensure the necessary conditions for a free and fair referendum during the transitional period. Providing the mission with an explicit human rights mandate would bring that approach to its logical conclusion. In addition, such a mandate could help MINURSO –a mission discredited for its inability to implement a major part of its mandate– to restore its credibility and legitimacy, which are considered success factors in any UN mission. In terms of the available resources and knowledge of the ground, MINURSO would still be seen as the best option for effective human-rights monitoring. As a matter of fact, the OHCHR strongly supports the integration of human-rights components in all UN peace operations without MINURSO being an exception.

(2) A OHCHR Regional Office: The advantage of this option is that it would allow the issue to be framed as a measure to improve the human-rights situation in the context of regional development and modernisation. In contrast to expanding MINURSO’s mandate, establishing a Regional Office would avoid the contentious issue of the special status of Western Sahara, and thus, presumably, be more appealing to Morocco. However, usually OHCHR’s Regional Offices do not monitor the human-rights situation, but focus on technical assistance. Another concern is that the OHCHR lacks the power and leverage of the Security Council to negotiate agreements and ensure appropriate political follow-up of the issues identified. In fact, the OHCHR has been unsuccessfully negotiating for over two years in order to open a Regional Office in Rabat that would undertake capacity-building activities. Obtaining consent for effective human-rights monitoring in the Western Sahara and the Tindouf camps would be much more difficult.

Protecting Human Rights Through a Wide Interpretation of MINURSO’s Mandate
Until a human-rights mechanism with a specific and explicit mandate is established, MINURSO should explore different ways to increase the protection of the population of Western Sahara under its current mandate. The third parties should also work to ensure that MINURSO can implement its operations without access restrictions.

An interesting precedent is the expansion of MINURSO’s activities to support UNHCR’s family-visits programme without a change in the mandate. Moreover, the question arises whether a UN mission really requires an explicit human-rights monitoring mandate in order to report to the Security Council on the violations it might witness during its operations. In a 1993 report,[12] the understanding of the Secretary-General was that ‘while MINURSO’s current military mandate is strictly limited to the monitoring and verification of the cease-fire, MINURSO, as a United Nations mission, could not be a silent witness to conduct that might infringe the human rights of the civilian population’.

Conclusions: The third parties should use the current focus on human rights to make progress towards a resolution of the Western Sahara conflict. Separating the human-rights issue from its political context bears the risk of the conflict again falling into oblivion once the ‘technical’ human-rights questions are dealt with as part of a conflict management rather than conflict resolution strategy.

This year, South Africa, a traditional ally of the Polisario Front, is on the Security Council and will likely take a firm position in the debate. If the Group of Friends wants to avoid further damage to its credibility and legitimacy, it will have to propose a human-rights monitoring mechanism in its draft resolution in April. The most effective option to monitor human rights and change the underlying dynamics of the conflict would be to provide MINURSO with a human-rights component. In order to produce a balanced and useful draft resolution, this point of view should be represented in the ‘Group of Friends’. Spain would be the member the best placed to take on that role. It could do it as part of an independent foreign policy that takes into consideration Spain’s historical responsibility with regard to the Western Sahara conflict, its interests and strategic priorities, as well as universally-recognised legal principles. In this endeavour, the Spanish government would not only have the backing of public opinion but also a democratic mandate from the Congress of Deputies and several Autonomous Parliaments.

Renata Capella Soler
Researcher specialising in human rights with extensive experience in the Middle East. She holds a M.A. in International Relations and a LL.M. in International Law from the Fletcher School of Law and Diplomacy, Tufts University