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UN mission to Western Sahara slams on Moroccan abuses

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  • Norwegian Support Committee for Western
    ... Note: This report was not intended for public view. However, as it has leaked out to various news sources Sahara Update today brings the full report. ...
    Message 1 of 1 , Oct 6, 2006
      Note: This report was not intended for public view. However, as it
      has leaked out to various news sources Sahara Update today brings the
      full report.
      ---The editors.

      Report of the OHCHR
      Mission to Western Sahara and the
      Refugee Camps in Tindouf
      15/23 May and 19 June 2006

      Office of the United Nations
      High Commissioner for Human Rights (OHCHR)
      OHCHR, Geneva, 8 September 2006


      1. Subsequent to the street protests and demonstrations in Laayoune
      and other towns in Western Sahara in May 2005, which continued
      throughout the following months and resulted in numerous injuries, the
      arrest of hundreds of protesters, allegations of torture and a hunger
      strike by several detainees, the High Commissioner for Human Rights
      proposed to the parties concerned to carry out a mission to the region.

      2. The mission was designed to gather information about the human
      rights situation in Western Sahara and in the refugee camps in Tindouf,
      Algeria. The mission was then to report to the High Commissioner about
      the human rights situation and make recommendations on how to assist the
      concerned parties to improve the promotion and protection of human
      rights of the people of Western Sahara. With a view to continuing the
      constructive dialogue with those concerned in implementing the
      recommendations of this report, this report is not a public report.

      3. After several months of negotiations concerning its terms of
      reference, its itinerary and its dates of travel, the mission went to
      Rabat, Laayoune, and Tindouf between 15 and 23 May 2006 and to Algiers
      on 19 June 2006.

      4. In Rabat, the members of the delegation met with Moroccan
      officials from the Ministries of Foreign Affairs, Interior and Justice,
      Parliamentarians, non¬governmental organizations (NGOs), ex-prisoners of
      war, families of disappeared and members of the Consultative Council for
      Human Rights as well as members of the former Equity and Reconciliation
      Commission. In Laayoune, the delegation met with Local authorities and
      officials of the Ministry of Interior and Justice, the Police and the
      Auxiliary Forces, civil society activists, lawyers, families of
      disappeared persons and NGOs, and was available to meet with any other
      individual who wished to meet the delegation. In the refugee camps in
      Tindouf, the members of the delegation met with officials from the
      Frente Polisario and representatives of mass organizations and unions as
      well as families of disappeared persons. In Algiers, the head of the
      delegation met with officials from the Ministry of Foreign Affairs.

      5. Despite heavy agendas set up by the parties upon the delegation's
      arrival, its members were able to meet with whomever they deemed useful.
      Security arrangements were extremely tight during the entire visit in
      Laayoune and particularly during one half day in Laayoune, when the
      delegation was required to negotiate the lifting of a security net which
      effectively would have prevented interlocutors from meeting the
      delegation. Overall, the delegation enjoyed a very good level of
      cooperation extended by all parties during its mission.


      6. The issue of Western Sahara is an issue pertaining to
      decolonization and self-determination (cf. A/RES/1514 (XV) of 14
      December 1960, the Declaration on the Granting of Independence to
      Colonial Countries and Peoples). In 1963, the territory of Western
      Sahara was designated as "non-autonomous" by the United Nations. In its
      Advisory Opinion of 16 October 1975, the International Court of Justice
      (ICJ) concluded that "the materials and information presented to it do
      not establish any tie of territorial sovereignty between the territory
      of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.
      Thus the Court has not found legal ties of such a nature as might affect
      the application of General Assembly resolution 1514 (XV) of 14 December
      1960 in the decolonization 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 former Commission on
      Human Rights in its last resolution on the question of Western Sahara
      (E/CN.4/RES/2004/4) dated 8 April 2004 reaffirmed the inalienable right
      for all people to self-determination and independence relative to the
      principles of the UN Charter and the GA resolution 1514 (XV). The Human
      Rights Committee (1) as well as the Committee on Economic, Social and
      Cultural Rights (2) reiterated the right of people of Western Sahara to
      self-determination in accordance with Covenant provisions during their
      most recent consideration of the reports of Morocco in 2004 and 2006,

      7. The Frente Popular para la Liberaci6n de Saguia el Hamra y Rio del
      Oro (Frente Polisario), founded in 1973, claims that its aim is to
      institute a Sahrawi Arab Democratic Republic (SADR) in Western Sahara.
      The Government of SADR was constituted in exile in February 1976. The
      SADR has been a full member of the African Union since 1984, but is not
      recognized by the United Nations. It has ratified the African Charter on
      Human and Peoples' Rights in 1986 and submitted its initial report to
      the African Commission on Human and Peoples' Rights (ACHPR) in January
      2003. This report was examined at the 33rd ordinary session of the ACHPR
      held in Niamey, the Republic of Niger, from 15 to 29 May 2003.

      8. The UN Security Council has repeatedly reaffirmed "its commitment
      to assist the parties to achieve a just, lasting and mutually acceptable
      political solution, which will provide for the self-determination of the
      people of Western Sahara in the context of arrangements consistent with
      the principles and purposes of the Charter of the United Nations". In
      its most recent resolution (S/RES/1675) of 28 April 2006, the Security
      Council "reiterated its gall upon the parties and States of the region
      to continue to cooperate fully with the United Nations to end the
      current impasse and to achieve progress towards a political solution".
      In as much as it calls for a political solution, the question of
      self-determination is a fundamental human right. Its implementation must
      be considered in a most constructive manner and all efforts by the
      international community through the Security Council should be supported
      and encouraged by all concerned.


      9. The question of the right to self-determination of the people of
      Western Sahara is paramount to the consideration of the overall human
      rights situation in the respective territories. It is a human right
      enshrined in the International Covenant on Civil and Political Rights
      (ICCPR) and the International Covenant on Economic, Social and Cultural
      Rights (ICESCR). The respect of all human rights of the people of
      Western Sahara must be seen in tandem with this right and a Jack of its
      realization will inevitably impact on the enjoyment of all other rights
      guaranteed, inter alia, in the seven tore international human rights
      treaties in force.

      10. The question of missing persons, both civilians and combatants,
      is still an outstanding issue on the part of both sides, for which
      families are continuing to seek clarity and resolution. Each party
      claims to have answered to the best of its knowledge and abilities the
      fate of the missing, both accusing the other side of not cooperating to
      bring a resolution to the matter.


      11.The territory of Western Sahara is currently under the de facto
      administration of Morocco, which claims sovereignty over the territory.
      Therefore the law applied de facto in the territory is the Moroccan
      constitution and laws and this report will thus evaluate the facts which
      occurred in the territory administered by Morocco on the basis of
      Moroccan laws and in light of Morocco's legal obligations entered into
      under the relevant international human rights treaties. The latter
      however shall not be interpreted as constituting a position vis-à-vis
      the status of the territory according to international law or
      attributing any legitimacy to claims of sovereignty, but rather
      constitutes an evaluation of the de facto enjoyment of human rights by
      the people of Western Sahara.

      Right to life, liberty and security of person and the prohibition of
      torture or cruel, Inhuman or degrading treatment

      12. Demonstrations began in Laayoune in May 2005, as a result of
      relatives and activists protesting against the transfer of a Sahrawi
      prisoner to Agadir, which, according to witnesses interviewed was
      violently dispersed by Moroccan security forces, prompting more
      demonstrations to protest police violence and calling for the right to
      self-determination and/or independence, also raising flags of the Frente
      Polisario. According to reports, demonstrations had started peacefully,
      but became violent over the next few days, with some protestors burning
      Moroccan flags and throwing petrol bombs at security forces resulting in
      material damage and physical injuries of several officers. By the end of
      May, protests had spread to Smara and Dakhla, and were accompanied by
      Sahrawi student demonstrations in Agadir, Casablanca, and Rabat. More
      demonstrations have taken plate in Laayoune since late October 2005.

      13.According to testimonies of Sahrawi activists who met with the
      delegation, demonstrations started peacefully, but became violent after
      Moroccan police, auxiliary forces and the Groupes Urbains de Securite
      (GUS) used excessive force to disperse protestors against demonstrators
      and bystanders, beating them with batons, injuring hundreds of
      protestors and arresting a significant number. Individuals interviewed
      reported numerous cases of excessive violence and the use of excessive
      force, alleging that officers beat them severely on the head, arms,
      legs, back and knees with truncheons. Some one hundred protesters were
      arrested during or in connection with the demonstrations. Some of those
      arrested alleged that they were ill-treated during the arrest or during
      the transfer to the place of custody, and that they were subsequently
      tortured or ill-treated in custody, believed to have been for the
      purpose of forcing them to sign confessions confirming the official
      version of the events, and intimidating them from expressing their
      political views on the question of Western Sahara.

      14. Violence used by security forces during the demonstrations resulted
      in the death, on 30 October 2005, of Hamdi Lembarki, who was
      participating in pro-referendum demonstrations in the streets of
      Laayoune and died from his wounds in Hassan Hospital. According to
      eye-witnesses, several Moroccan police officers arrested him during the
      aforementioned demonstration, took him to a nearby wall, surrounded him
      and repeatedly beat him with batons on the head and other parts of his
      body. One eye-witness reported to the delegation that Mr. Lembarki had
      been found unconscious on the ground by some people who drove him to the
      hospital where he died. An initial autopsy indicated that his death was
      the result of injuries to the skull. The father of Mr. Lembarki filed a
      complaint with the King's Prosecutor at the Laayoune Appeal Court,
      requesting an investigation into the circumstances of his son's death
      and an investigation was opened. In addition, the Office of the Public
      Prosecutor in Laayoune ordered a second autopsy. Officials of the
      Ministry of Justice in Rabat informed the delegation that two police
      officers are currently in custody and have been charged with having
      inflicted injuries with a weapon and thereby unintentionally causing
      death white acting in their capacity of public employees. The results
      have been submitted to the General Prosecutor who transferred the
      officers to the court of first instance, where the latter are awaiting

      15.According to the authorities of the Ministry of Interior and Justice
      as well as local authorities, violence during the demonstrations - which
      were described as illegal as the procedures prescribed by law had not
      been followed - was provoked by the demonstrators and the police
      response was entirely justified. The authorities assured the delegation
      that police used only force strictly required by the circumstances of
      the situation. They insisted that demonstrations had not been peaceful,
      that protestors burned Moroccan flags, and that stones and petrol bombs
      had been thrown at police officers, endangering their safety. In cases
      where there had been doubts as to the use of force in accordance with
      law and procedures, prompt investigations had been launched into the
      matter, as in the case of Mr. Lembarki. According to the authorities,
      all complaints presented to the General Prosecutor are investigated
      promptly and the delegation was provided with statistics in this regard
      covering the entire country. The delegation notes that only three cases
      relating to Laayoune appear in those statistics, with only one case, the
      case of Mr. Lembarki having led to any tangible result until new. The
      two remaining cases relate to two detainees who allege that they were
      tortured and ill-treated in detention, and are noted as being under
      investigation. No information was provided by the authorities as to
      steps taken fully and impartially to investigate the disturbances or
      that there was any intention to do so in the near future.

      16. Based on the number of allegations regarding excessive use of force
      by law enforcement officials received from individuals who had been
      present during the demonstrations, the delegation notes the categorical
      rejection by the authorities of any responsibility for the violence
      which occurred since May 2005. It should be recalled that in the
      dispersal of unlawful but non-violent assemblies, law enforcement
      officials shall avoid the use of force, or, where this is not
      practicable, restrict force to the minimum necessary. (3) Regarding the
      reference by the authorities to the fact that the protests and
      demonstrations were illegal, the delegation notes that it has received
      information from several sources alleging a series of administrative
      hurdles imposed by Moroccan authorities to organize assemblies lawfully.
      The fact remains that the use of force should be avoided or restricted
      to the minimum necessary. In light of the above, the delegation is led
      to the preliminary conclusion that a) Moroccan law enforcement officials
      seem to have used force in an indiscriminate and disproportionate manner
      when exercising their responsibilities in the course of exercising their
      duty to maintain public order and security; and b) administrative
      hurdles imposed by authorities may compromise the ability of the people
      of Western Sahara to fully exercise their right to freedom of expression
      and assembly.

      17.Activists and human rights defenders told the delegation that after
      the May 2005 demonstrations, Moroccan authorities intensified measures
      aimed at intimidating and harassing human rights activists and other
      pro-referendum activists and supporters, severely restricting their
      rights to expression, assembly and association. Numerous people
      interviewed informed the delegation that in the aftermath of the May
      2005 demonstrations, arbitrary arrests increased, both during
      demonstrations and prior to and after meetings with other human rights
      defenders or activists, as well as after having given statements to
      international media. Many activists and human rights defenders who met
      with the delegation reported that they had been detained repeatedly and
      interrogated for periods ranging from several hours to one night about
      their activities and political views, before being released, sometimes
      at the outskirts of the city. Moreover, it was reported to the
      delegation that in many instances, human rights defenders' or activists'
      homes were searched white demonstrations were taking plate, often
      causing material damage.

      18. The delegation received several allegations from ex-detainees,
      lawyers and total human rights organizations concerning the use of
      torture and other treatment of detainees by law enforcement personnel,
      as well as the Jack of prompt investigations into such allegations.
      Ill-treatment reportedly also occurred during transfers from Laayoune
      prison to other prisons in Morocco or from prison to the court. Some
      ex-detainees also reported that they had been severely beaten in a
      separate room at Laayoune Appeal Court prior to their appearance in

      19.The delegation was shown some bruises on bodies of human rights
      defenders and activists, with whom it met, which were alleged to have
      been inflicted by security forces during demonstrations and through
      torture. While victims interviewed had shown the delegation medical
      certificates related to their injuries, the delegation was not able to
      confirm the causes of any of these injuries. The delegation presented
      several allegations of ill-treatment and torture to officials of the
      Ministry of Justice who replied by making general reference to the
      applicable law and obligations of relevant authorities. The Ministry
      also provided statistics of complaints filed with the Prosecutor's
      Office and the results of any investigations conducted. The delegation
      notes that only three cases, including the case of Mr. Lembarki noted
      above, appear in those statistics. Authorities in Rabat and Laayoune
      assured the delegation that prompt action is taken in all cases as
      prescribed by the relevant legal provisions i.e. that in all cases where
      complaints are lodged or where relevant authorities observe injuries
      inflicted on detainees, prompt and thorough investigations are launched
      and perpetrators held accountable. Furthermore, several officials
      highlighted that evidence obtained under torture was inadmissible in
      court proceedings, and that Morocco had adopted, on 14 February 2006, a
      new law banning torture and punishing abuses committed by law
      enforcement personnel. However, the statistical records of
      investigations carried out which were provided to the delegation, and
      the explanations provided by the Prosecutor and other authorities, did
      not provide conclusive evidence as to whether or not any investigation
      had in fact been carried out in response to claims of torture made by
      victims. The delegation received conflicting statements as to whether
      medical examinations have been granted when requested, but was not able
      to verify the veracity of claims and counter-claims as well as reasons
      provided during the brief period of its mission. However, it seems that
      police and prosecutors as well as examining magistrates, have a broad
      discretion in making decisions to grant medical examinations and
      launching investigations when presented with claims of torture and
      ill-treatment during the different stages of the procedure. Urgent
      measures should be taken to ensure the full application of the
      obligations undertaken by Morocco under the ICCPR and the Convention
      against Torture and Other Cruel, Inhuman or Degrading Treatment or
      Punishment in practice. The right to a fair trial

      20.Fourteen Sahrawi defendants including several human rights activists
      were convicted by the Laayoune Appeal Court in January 2006. Charges
      allegedly mainly related to the following: establishment of criminal
      bands, criminal conspiracy in order to commit crimes, attempt of
      voluntary destruction of buildings with the use of explosives, blocking
      traffic, violence against police officers during the performance of
      their duties, participation in unauthorized demonstrations while giving
      instructions to disobedience and/or belonging to unauthorized
      organizations. All defendants denied the charges throughout the trial
      proceedings and two of them allege having been tortured during
      questioning. The defendants were convicted to periods of imprisonment
      ranging from 6 months to 3 years.

      21.The delegation met with lawyers and some of the above mentioned
      prisoners who had been pardoned by the King in March and April 2006.
      They raised serious concerns about the fairness of the trial, including
      the fact that convictions were based exclusively on confessions by the
      defendants in written police statements. In these statements, defendants
      implicated themselves in provoking and committing violent acts.
      Defendants interviewed by the delegation claimed that these confessions
      had been fabricated and two of them had been extracted under duress, but
      were nevertheless used during the trial as evidence. Defendants declared
      their innocence on all charges related to violent disturbances during
      the trial proceedings. They claimed that they had been advocating
      peacefully for the right to self-determination of the people of Western
      Sahara. They consider that the lawsuit against them was of a purely
      political character, related to their activities in documenting events
      in Western Sahara, expressing their views on the right to
      self-determination of the people of Western Sahara, and disseminating
      this information internationally, including to international human
      rights organizations, as well as OHCHR.

      22.In addition, lawyers told the delegation that their request to call
      witnesses for the defense, which would have challenged the content of
      the written police statements were dismissed by the court, allegedly
      without justification. Furthermore, the hearings were postponed several
      times in the course of the court proceedings, which lawyers attributed
      to the fact that international and local trial observers had been
      present, and that the repeated postponement was intended to create
      obstacles for their attendance. Finally, it is believed by many that the
      international attention given to the trial of these activists had an
      impact on the sentences, in that they were relatively light vis-à-vis
      the charges raised.

      23.Two ex-detainees informed the delegation that they had not been at
      the crime scene at the time they had allegedly committed the crime. They
      were nevertheless convicted for those crimes, i.e., participating in and
      inciting violent protest activities. Other ex-detainees told the
      delegation that they had been tortured, but that the follow-up by the
      authorities pursuant to their complaints had been insufficient, and that
      medical expertise had not been available in a timely fashion. They and
      other ex-detainees also told the delegation that they and members of
      their families had been ill-treated by judicial police immediately prior
      to their trial, the facts of which they stated during the hearings. They
      alleged that no follow-up action was initiated to investigate their

      24. Lawyers of same of the human rights defenders who had been detained,
      informed the delegation about several procedural shortcomings prior to
      and during the hearings, including inspections of homes of defendants
      without search warrants; insufficient access to the case file of their
      clients and the refusal of the police to inform the defendants, or any
      other person, of the reason for their arrest. (4)

      25.The delegation conveyed a number of concerns related to respect for
      fair trial guarantees to the President of the Laayoune Appeal Court, who
      informed the delegation that he was newly designated (15 days before the
      arrival of the mission) and had not studied the case files. He was thus
      not in a position to discuss the concerns raised by the delegation but
      reiterated that Morocco's legislation was in full compliance with
      international obligations and that all rights were fully respected.

      26.In view of the above facts and witness testimonies, the delegation
      remains concerned that there are serious deficiencies with regard to
      ensuring the right to a fair trial. While the delegation is not in a
      position to assess the substance of the charges brought against the
      defendants, it has been presented with a series of reports about
      Morocco's failure to guarantee the right to a fair trial to the
      defendants, and was not provided with satisfactory replies by the

      Freedom of expression, assembly and association

      27. The delegation received a series of allegations from human rights
      defenders and NGOs reporting that they had repeatedly been targeted, and
      some of them convicted, for publicly expressing their views, which are
      not in line with official views on the issue of Western Sahara, but
      rather advocate the right to self-determination for the people of
      Western Sahara. The delegation heard testimonies by members of
      associations which indicated an increase, since May 2005, of acts of
      harassment and physical assaults – the latter primarily in the course of
      pro-referendum/self-determination demonstrations - carried out by law
      enforcement officials, including against members of the families of
      activists. It was alleged that there were repeated searches of homes by
      the security forces without a warrant. Harassment was also reported to
      have occurred following statements about the situation in Western Sahara
      to representatives of international organizations and international
      media, both in Morocco and abroad.

      28. According to the testimonies, it appears that limits have been
      established with regard to the exercise of freedom of expression in
      Western Sahara in practice. It has been confirmed in several meetings,
      both with governmental as well as non-governmental counterparts, that
      the sovereignty of Morocco over Western Sahara may not be questioned.
      Such limitations, especially in view of the internationally recognized
      right of the people of Western Sahara to self-determination, cannot be
      interpreted as falling with the permissible restrictions under article
      19 of the ICCPR, such as national security, public order or public
      health or morals.

      29. In addition, the delegation received information from local NGOs and
      international NGOs prior to its departure to the effect that since
      November 2005, several Internet web-sites advocating self-determination
      of Western Sahara have been blocked by the authorities. Authorities in
      the Ministry of the Interior confirmed that audio-visual and print
      media, as well as internet sites are controlled by the authorities so as
      to prevent assaults on the territorial integrity of Morocco. It was
      confirmed by the authorities that any web-site advocating for
      independence or judged in any way as a threat to the territorial
      integrity of Morocco will be banned in accordance with the law.

      30. The enjoyment of the right to freedom of assembly, closely linked to
      the right to freedom of expression, allegedly has been affected by
      similar restraints in the territories of Western Sahara relating to the
      expression of individuals' opinions on the right to

      31. The freedom to establish associations equally has been curtailed in
      the territory of Western Sahara in significant aspects. The delegation
      met with several activists who had attempted to establish associations,
      or were members of associations that had been dissolved, who outlined
      several administrative hurdles imposed by authorities to obstruct the
      registration process. For instance, three associations, the Sahara
      section of the Forum Verite et Justice Marocain, based in Rabat, the
      Sahrawi Association of Victims of Serious Human Rights Violations
      Perpetrated by the Moroccan State (Association sahraouie des victimes de
      violations graves des droits humains commises par I'etat marocain) and
      the Laayoune branch of the Moroccan Association for Human Rights, have
      either been dissolved and/or faced serious obstacles or administrative
      delays when trying to re-register or register.

      32. The Sahara section of the Forum Verite et Justice Marocain, was
      established in 1999 and legally registered until its dissolution by
      Court order in June 2003, following a complaint made against the
      section. The complaint included "conspiring with international bodies
      and organizations which are hostile to Morocco, with the aim of causing
      the diplomatic position of the Kingdom to deteriorate," and "being
      responsible for slogans hostile to territorial integrity." Its members
      told the delegation that they continue to undertake their activities,
      but are subject to strict police surveillance. They informed the
      delegation that the dissolution occurred shortly after they had met with
      the ad hoc Western Sahara delegation of the European Parliament on 12
      February 2002, during which they had given them video recordings and
      documents regarding the human rights situation in Western Sahara and the
      right to self-determination. They also noted that the President and
      other members have been subject to harassment and assault by police
      officers on various occasions. On 11 May 2006, the Executive Committee
      of the Sahara section of the Forum Verite et Justice Marocain applied
      for a new registration under the same name and is waiting for a response
      from the authorities.

      33. The Sahrawi Association of Victims of Serious Human Rights
      Violations Perpetrated by the Moroccan State has been effectively
      prevented from registering its association with the authorities.
      According to members of the Association, the relevant authorities have
      repeatedly refused to accept their file and to issue a receipt, thus
      paralyzing the administrative process. The Moroccan Association for
      Human Rights equally alleged that the establishment of its branch in
      Western Sahara in 2003 faced a series of administrative obstacles and

      34. Given the de facto illegality of their organizations, several human
      rights defenders have been prosecuted for membership in an illegal
      organization as they continued to carry out their work despite the lack
      of registration. Officials of the Ministry of Interior affirmed to the
      delegation that no association will be authorized if it aims to question
      the territorial integrity of Morocco. As for the Sahara section of the
      Forum Verite et Justice Marocain, the authorities informed the
      delegation that it had been dissolved by a court judgment in conformity
      with the law at the request of their headquarters.

      35. Officials at the Ministry of Interior informed the delegation that
      registration of associations is governed by the dahir 1-58-376 of 15
      November 1958 on the right to association, which was modified in January
      1959 and April 1973. According to the officials, various provisions
      guaranteed freedom of association, with an obligation on the
      administrative authority to issue a receipt for the application within
      60 days at the most. The delegation notes that article 3 of the above
      mentioned dahir provides that "if the purpose of an association
      requesting a registration attacks the integrity of the territory, it is
      null". Such limitations on the right to freedom of association,
      guaranteed by article 22 of the ICCPR raise similar questions as
      indicated earlier with regard to freedom of expression, and there are
      serious doubts as to whether such restriction can be interpreted as
      falling within the restrictions permissible under article 22.

      Freedom of movement

      36. Several activists informed the delegation that passports of some
      Sahrawis have been confiscated by Moroccan officials at international
      airports, preventing them from traveling abroad (6). The delegation
      raised this issue with Ministry of Interior officials, who indicated
      that all such cases, if any existed, would be solved immediately and
      that people concerned could recover their passports at any time. In
      Laayoune, the delegation presented a list of nine specific cases of
      confiscation of passports to the Wali, who indicated that he would
      inquire about the passports and hand them over to their owners within a
      few days. However, one month after the mission returned to Geneva, the
      passports were still withheld.


      37. Refugees living in the camps in Tindouf are organized under a
      republic in exile, the Sahrawi Arab Democratic Republic (SADR) governed
      by the Frente Polisario, which, white in exile, is recognized by Algeria
      and 52 other countries (7). The SADR is a member of the African Union
      and has ratified the African Charter on Human and People's Rights, but
      has no status with the United Nations and has no international
      obligations under international human rights treaties. The SADR defines
      itself in the Constitution of 1976 (amended in 1999), as an independent
      and sovereign State, which is governed by a democratic system on the
      basis of free popular participation. The Frente Polisario claims to be
      the sole and legitimate representative of the people of Western Sahara.
      It aims at leading it to realize its right to self-determination in
      order to establish the SADR in an independent Western Sahara.

      38. Pending a durable solution to the question of Western Sahara, the
      United Nations High Commissioner for refugees (UNHCR), in coordination
      with Algeria as the asylum country, continues to carry out assistance
      and protection activities for the benefit of the Sahrawi refugees. Other
      UN agencies, the European Community Humanitarian Office (ECHO) and
      various international NGOs have also provided assistance within their
      respective mandates.

      39.Algeria, the country of asylum, is party to the seven core human
      rights treaties, under which it has obligations to respect and ensure
      the rights guaranteed in those treaties to all persons in its territory.
      It is also party to the 1951 Convention relating to the Status of
      Refugees (since 1963), its 1967 Protocol, as well as several regional
      human rights treaties. While the refugees are present in the territory
      of Algeria, the authorities reiterated during meetings with the Head of
      the delegation that despite this presence, the responsibility for human
      rights and any other related matters lies with the Government of the
      SADR. As indicated below, as a State party to these instruments, the
      Government of Algeria is obliged to ensure that all rights stipulated in
      these instruments are upheld for all persons on Algerian territory.

      40. It should be underlined that UNHCR works directly with the
      Government of Algeria as the country of asylum/host government on all
      matters related to the Sahrawi refugee programme.

      Political participation

      41. Whilst the SADR Constitution envisages a multiparty system after
      achieving independence of Western Sahara, Frente Polisario is currently
      the only political party in the camps. The functions of the President of
      the SADR have been exercised by the Secretary General (SG) of the Frente
      Polisario, who is at the same time the chief of the Sahrawi Popular
      Liberation Army (SPLA). In addition, the members of the SADR Government
      and various community structures are members in the Frente Polisario.

      42.Officials of the Frente Polisario described the political,
      administrative and legal system currently applied in the territory under
      its control to the delegation. The delegation raised with officials the
      gap between the constitutional multi-party principle and its
      implementation in practice. Officials emphasized the temporary nature of
      the current state of affairs due to the extraordinary circumstances
      linked to the unsolved status of the question of Western Sahara, which
      has inevitably had an impact on the normal functioning of governmental
      structures. Accordingly, several paragraphs in the Constitution were
      described to the delegation as suspended until the achievement of "full
      independence of Western Sahara". It was also asserted that
      exceptionally, any political representation is through the Frente
      Polisario, the one and only legitimate representative of the Sahrawi
      people. The right of the people of Western Sahara to self-determination
      and independence as the key determinant of living conditions and the
      functioning of the State was consistently emphasized to the delegation.

      Freedom of association

      43.The delegation met with several mass organizations present in the
      camps, all linked to the Frente Polisario. Members of the General
      Workers' Union, the labor organization of the Frente Polisario
      highlighted that unemployment is near total, with existing work, which
      is compulsory and unpaid, being organized by the camp administration of
      the Frente Polisario. The President and members of the National Union of
      Sahrawi Women, the women's organization of the Frente Polisario,
      highlighted the achievements of the union in improving the situation of
      women, as well as their international work in support of women's rights
      as well as the Sahrawis' right to independence. Almost all
      representatives of associations and unions met by the delegation
      emphasized the right to an independent Western Sahara as the single most
      important goal.

      44.The delegation did not receive any complaints about attempts to
      establish an association being stopped. However, all associations met by
      the delegation are linked to the Frente Polisario and the delegation was
      not able to establish the extent to which refugees in the camps are able
      to exercise the right to freedom of association in practice.

      Freedom of expression

      45.The Frente Polisario organized several more or less spontaneous mass
      gatherings during the visit of the delegation, during which Sahrawis
      reiterated their right to independence. While the Constitution
      stipulates that the right to freedom of expression is guaranteed, the
      delegation notes that it heard only one view concerning the future of
      Western Sahara and the right to self-determination of the people of
      Western Sahara leading to an independent Western Sahara, including about
      who would eventually govern the independent state.

      Freedom of assembly

      46. Public gatherings witnessed by the delegation were all organized
      by the Frente Polisario or its mass organizations. All claimed the right
      of the Sahrawi people to the independence of Western Sahara, the longing
      for an independent Western Sahara and praised the glorious role of the
      Frente Polisario to achieve this goal. Demonstrators were waving the
      SADR flag and chanting slogans on independence. The delegation, whilst
      meeting with Sahrawis in the camps, did not receive any allegations of
      the violation of the right to the freedom of assembly.

      Freedom of movement

      47. As refugees, the population living in the camps faces
      difficulties in traveling since it does not have identity papers that
      are recognized worldwide. Prior to its arrival to Tindouf, the
      delegation had received allegations that Sahrawis in the Tindouf camps
      had to obtain permission from the authorities controlling the camps to
      travel outside the boundaries of the camps. Sahrawis who met with the
      delegation denied such allegations. The delegation was not in a position
      to obtain evidence to confirm allegations as to the restrictions on

      48.The UNHCR supervises and organizes, with the help of the MINURSO, a
      programme of Confidence Building Measures (CBM), consisting of visits
      between Western Sahara and Tindouf benefiting families from both sides.
      The delegation met with Sahrawi refugees who claimed that families in
      Western Sahara under Moroccan rule were not free to register in the list
      of those wishing to travel to Tindouf, while some sources in Western
      Sahara claimed that the leadership of the Tindouf camps had not been
      allowing some Sahrawis to register in the visiting programme. The
      delegation was not in a position to confirm the claims on either side.

      Economic, social and cultural rights

      49.The refugees in the camps around Tindouf are lacking adequate
      housing, with most of them living in shacks made of brick or mud, have a
      precarious access to healthcare, have scarce access to food and water,
      all rationed, and Jack the means to adequately educate their children.

      50. In view of the limited opportunities for education in Tindouf, the
      refugee leadership has been undertaking bilateral agreements with
      various countries to ensure a framework of scholarships for Sahrawi
      children. These scholarships are for secondary and university education,
      notably in Algeria, Spain, Cuba and other destinations. Prior to its
      arrival in Tindouf, the Moroccan Ministry of Foreign Affairs and
      cooperation handed over to the delegation a Note verbal dated 15 May
      2006, in which the Ministry reported, inter alia, Jack of consent of the
      parents of Sahrawi students, prior to their enrolment in Cuban schools.
      The delegation was not in a position to obtain evidence in this regard.

      51.According to the Labor Union representatives who met with the
      delegation, the arid nature of the desert and remote location of the
      camps are the two main factors preventing refugees from pursuing
      income-generating activities. The Jack of economic opportunities has
      determined the dependency of the refugees on external assistance.


      52. Realization of the right to self-determination of the people of
      Western Sahara is the responsibility not only of Morocco as
      administrative authority but also of the international community. Almost
      all violations of human rights noted above stem from the non-realization
      of this right, including civil and political rights as well as economic,
      social and cultural rights of the people of Western Sahara in all
      locations where they currently reside. In accordance with international
      obligations with respect to the question of Western Sahara, the
      international community should take all necessary measures to ensure the
      right of self-determination of the people of Western Sahara. It should
      also be recalled that article 1 of both the ICCPR and the ICESCR
      requires States parties to "promote the realization of the right of
      self-determination" and to "respect that right in conformity with the
      provisions of the Charter of the United Nations."


      53.Overall, the human rights situation is of serious concern,
      particularly in the Moroccan-administered territory of Western Sahara.
      Currently, the Sahrawi people are not only denied their right to
      self-determination, but equally are severely restricted from exercising
      a series of other rights, and specially rights of particular importance
      to the very right of self-determination, such as the right to express
      their views about the issue, to create associations defending their
      right to self-determination and to hold assemblies to make their views
      known. In order to comply with its international obligations,
      particularly under the Covenants on Civil and Political Rights and on
      Economic, Social and Cultural Rights, serious changes to both
      legislation as well as government practice on the issue of Western
      Sahara are required.

      54. Despite the level of cooperation extended to the delegation
      during its visit of some of the camps, it was unable to obtain
      sufficient information to draw extensive and well-founded conclusions
      with regard to the de facto enjoyment of human rights by the refugees in
      the camps. Therefore, serious further inquiries are required.

      55. States parties to human rights treaties are under an obligation
      to respect and ensure those rights to all persons who may find
      themselves on the territory of the State party (8), including aliens,
      refugees and asylum seekers. Algeria, as the country of asylum of some
      90,000 Sahrawi refugees (9), holds that it bears no responsibility with
      regard to the human rights situation of the Sahrawi people. According to
      the Algerian authorities, respect for human rights is a matter for the
      Sahrawi Arab Democratic Republic, a state recognized by Algeria and
      several other countries, to ensure that human rights of its people are
      respected, and to implement the obligations it voluntarily assumed,
      including by ratifying the African Charter on Human and People's Rights.
      No international human rights treaty body has specifically validated
      this view with regard to the international human rights obligations
      accepted by Algeria. It is our opinion that all possible efforts should
      be made towards the fulfillment of all human rights of the people of
      Western Sahara. Accordingly, Algeria should take all relevant measures
      to ensure that all individuals present on its territory benefit from the
      protection of the international human rights conventions to which it is
      a party.

      56. In view of the stalemate in reaching a political settlement for
      Western Sahara, the planning of the voluntary repatriation and of the
      care and maintenance activities in the camps are carried out without
      UNHCR being in a position to factor in unexpected political developments
      beyond its control. In operational terms, UNHCR co-operates with MINURSO
      as recently shown by the efficient co-operation achieved in respect of
      the organisation of family visits within the CBM programme.

      57.Considering the seriousness of the human rights situation in Western
      Sahara, and considering as well the expectations from the international
      community — be it Member States or UN actors — the following
      recommendations are put forward:


      1. As has been stated in various UN fora, the right to
      self-determination for the people of Western Sahara must be ensured and
      implemented without any further delay. As underlined above, the
      delegation concludes that almost all human rights violations and
      concerns with regard to the people of Western Sahara, whether under the
      de facto authority of the Government of Morocco or of the Frente
      Polisario, stem from the non-implementation of this fundamental human

      2. The efforts by the international community through the Security
      Council and the Secretary-General aiming at assisting the parties to
      achieving a just, lasting and mutually acceptable political solution
      consistent with the right to self-determination of the people of Western
      Sahara should be fully supported and upheld. However, in addition,
      urgent measures should be taken by the concerned parties to ensure that
      all human rights are protected fully. It is of extreme importance that
      human rights issues cease to be instrumentalized and that all human
      rights be implemented in a less politicized manner.

      3. Closer monitoring of the human rights situation both in Western
      Sahara and in the refugee camps in Tindouf is indispensable. The United
      Nations should explore with all relevant actors the best way to ensure
      adequate and continuous monitoring of the human rights situation in the
      region, and to offer effective capacity building, protection and
      redress. All concerned should fully cooperate with the United Nations in
      the implementation of this task.

      4. This report is not a public report. It is shared exclusively with
      Algeria, Morocco and Frente Polisario, who were consulted prior to and
      in the course of the Mission of OHCHR to Western Sahara and the refugee
      camps in Tindouf in order to ensure the continuation of this
      constructive and fruitful engagement. Ultimately, the rights of the
      people of Western Sahara will be best served by enhancing this
      cooperation on the basis of continuous human rights monitoring.


      (1) The Human Rights Committee in its concluding observations
      (CCPR/CO/82/MAR) of November 2004 remained concerned about the lack of
      progress on the question of the realization of the right to
      self-determination for the people of Western Sahara. The Committee
      recommended that the State party should make every effort to permit the
      population groups concerned to enjoy fully the rights recognized by the

      (2) The Committee on Economic, Social and Cultural Rights in its
      concluding observations (E/C.12/MAR/CO/2) of 19 May 2006, raised
      concerns about the fact that there has still not been a clear solution
      to the question of self-determination of the people of the Western
      Sahara. The Committee encouraged the State party to deploy all its
      efforts to find a clear and definite solution to the question of the
      self-determination of the people of Western Sahara.

      3) UN Basic Principles on the Use of Force and Firearms by Law
      Enforcement Officials, 1990, principle 13.

      (4) The Human Rights Committee in its concluding observations
      (CCPR/COI82/MAR) of November 2004 considered the period of custody
      during which a suspect may be held without being brought before a judge
      - 48 hours (renewable once) for ordinary crimes and 96 hours (renewable
      twice) for crimes related to terrorism - to be excessive. The Committee
      recommended 'hat the State party should review its legislation on
      custody with a view to bringing it into line with the provisions of
      article 9 and all the other provisions of the Covenant. Furthermore, the
      Committee was concerned that the accused may have access to the services
      of a lawyer only from the time at which their custody is extended (that
      is after 48 or 96 hours). It recalled that, in its previous decisions,
      it had held that the accused should receive effective assistance from a
      lawyer at every stage of the proceedings. It recommended that the State
      party amend its legislation and practice to allow a person under arrest
      to have access to a lawyer from the beginning of their period in

      5) The Human Rights Committee, in its concluding observations
      (CCPR/CO/82/MAR), of November 2004 remained concerned that the process
      of issuing a receipt for advance notice of meetings is often abused,
      which amounts to a restriction on the right to assembly, as guaranteed
      by article 21 of the Covenant. The Committee recommended that the State
      party should eliminate the obstacles to the exercise of the right of

      (6) The Human Rights Committee in its concluding observations
      (CCPR/CO/82/MAR), of November 2004 was concerned that some
      representatives of non-governmental organization had their passports
      confiscated and were thus prevented from attending a meeting of
      non-governmental organizations on the question of Western Sahara at the
      fifty-ninth session of the Commission on Human Rights in Geneva. The
      Committee recommended that the State party should apply article 12 of
      the Covenant to all its nationals.

      (7) Information according Frente Polisario in Geneva.

      8) Sec, for instance, Human Rights Committee, General Comment No. 31,
      paragraph 10; also see CRC/C/15/Add.269 of 30 September 2005, in which
      the Committee recommends "that the State party take all feasible
      measures to ensure hill protection and care. as well as access to health
      and sosial services and to education, of Western Saharan refugee
      children living in refugee camps in Algeria..."

      (9) This is the latest, revised UNHCR figure which is strongly disputed
      by the Frente Polisario who puts the figure at some 160,000 persons
      living in the camps.

      Forwarded by:

      Norwegian Support Committee for Western Sahara

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