The Illegality of the Tindouf Camps and the Legitimacy of Humanitarian Intervention

While Morocco was getting ready to recover its southern zone, known as the "Western Sahara" which was under Spanish colonization -- as part of the sequential decolonization which first covered the cities of Tarfaya and Sidi Ifni (in 1958 and 1969, respectively)-there emerged some regional hegemonic ambitions within the logic of West-East confrontation and race for leadership in the Maghreb region which hampered that process.

The recovery of the Western Sahara has been carried out in accordance with the terms of international law. The Tripartite Agreement that was signed in 1975 in Madrid by Spain (ex-coloniser), Morocco and Mauritania, put an end to the Spanish colonization of the Sahara.

In addition, in its Advisory opinion of October 16, 1975, the International Court of Justice (ICJ) recognized the existence of historic bonds and allegiance between Morocco and the Sahara.

 Thus following the Spanish departure, Morocco restored its sovereignty over the Sahara as part of the decolonization process. However, a separatist Front, known as the Polisario, pretending to represent the population of that region, has been formed at the instigation of some Maghreb countries, satellites of the ex-Soviet Union, supported therein by some sub-Saharan countries.

The Polisario took up arms against Morocco with the strong support of Algeria, claiming to defend the right of a visionary "Sahrawi people" to self-determination at the expense of Morocco's territorial integrity. In so doing, Algeria aimed at legitimizing its intervention for the establishment of a State that will be wholeheartedly affiliated to it, and ultimately allow it to have direct access to the Atlantic, thereby realizing its hegemonic ambitions.

In view of this, the Sahara conflict, which has taken on an internal dimension for reasons inherent to the political circumstances prevailing in the 70's, soon acquired an international dimension due to the intervention of a certain number of countries.

In this context, the war between the Polisario and Morocco has led to the forcible displacements of a part of population of the Sahara provinces, especially among vulnerable categories such as women, the elderly, and children. It has been a forcible displacement of the population from outside their country. Indeed, the constraints exercised by the Polisario armed forces with the acquiescence of Algeria have provoked these forcible displacements to the Tindouf camps in the Algerian territory, which accounts for the illegality of these camps in the eyes of international law and hence the need for a humanitarian intervention.

I.       The Illegality of the Tindouf Camps

The illegality of the Tindouf camps can be explained by the fact that they were established in breach of international humanitarian law. These are not, in fact, refugee camps but detention camps.

A.     Tindouf Camps: Detention Camps, not Refugee Camps

According to Article 1 of the UN Convention relating to the Status of Refugees,  a refugee is any person who, «owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it ».

In the light of this definition, it should be noted that the status of "refugees" cannot apply to the populations detained in the Tindouf camps, in the sense that these men and women are confined there against their will. They did not join these camps owing to the well-founded fear of being persecuted. Proof of this is that they regain their motherland, Morocco, once they seize the opportunity to do so, and often at their own peril. The late King Hassan II solemnly announced to these populations that "the homeland is clement and merciful". Worth recalling here also is the fact that those populations have in no time been subjected, in Morocco, to any discrimination on the basis of race, religion, ethnicity or language, neither have they been subjected to any sort of repression. Therefore, they may at any time rejoin their motherland, where all their rights are guaranteed.

On the other hand, the protection of civilians lies first and foremost with the government of the host country, Algeria. In the Tindouf camps, it is the Polisario as well as the pseudo SADR that run the Tindouf camps with the support of the Algerian military commandment.

Besides, the refugees, if this status indeed applies to them, should benefit from a set of Human rights, including the freedom of movement, the right to obtain travel tickets, as well as the right to bring their cases to justice. The populations in the Tindouf camps, who are collectively held as hostages, are deprived from those rights, which amply demonstrates that they are indeed detainees.

B.     Tindouf Camps and International Law

The law relative to refugees as well as Humanitarian law complement each others in the sense that both of them are concerned with the protection of Man, especially in case of armed conflict.

On this basis, the refugee status entitles the beneficiaries a set of rights, notably the right to obtain a travel ticket and the recognition of that ticket by other States parties, the right to equitable justice in case they are involved in a judicial procedure, the right to social security, to education, to property as well as to employment.

The fundamental rights of which displaced persons should benefit include the right to life, to physical integrity and to personal security, in addition to the right to leave a country and to seek asylum in another one, the freedom of movement, the right to humanitarian aid, and the right to return at any time to their origin country.

Besides, international law guarantees protection for displaced persons, exactly as other civilian populations would be protected.

In this regard, international humanitarian law commands respect for the following rules:

  • The prohibition of forcible and arbitrary displacements;
  • The prohibition of using civilian populations as war targets or conducting indiscriminate attacks against them;
  • The prohibition of collective punishments, including the demolition of houses;
  • The Respect for the rule of granting civilian population free access to first aid;
  • The right of return of the population forcibly displaced.

Article 3 of the four Geneva Conventions relative to international humanitarian law stipulates that «are and shall remain prohibited at any time and in any place whatsoever (...) (b) taking of hostages; (...) (c) outrages upon personal dignity, in particular humiliating and degrading treatment ».

However, the populations in the Tindouf camps do not enjoy any of the above-cited rights, as stipulated by the international humanitarian law relative to the situation of refugees, all of which shows clearly and conclusively that the populations based in the Tindouf camps are detainees.

The fourth Geneva Convention relative to the protection of civilian persons prohibits, in articles 33 and 34 thereof, collective penalties, pillage and the taking of hostages.

As to the prisoners of war, they shall, by virtue of article 118 of the third Convention relative to the treatment of Prisoners of War, be repatriated without delay after the cessation of active hostilities.

Moreover, the populations detained in the Tindouf camps are subjected to cruel and inhuman treatments, especially when they attempt to escape oppression and rejoin their homeland, Morocco. Yet the perpetrators of these acts still enjoy impunity.

C.     The Militarization of the Tindouf Camps

The Polisario holds the populations forcibly displaced as hostages and detains them in order to use them in its propaganda manoeuvres as a means of putting pressure on international public opinion. Besides, it compels children to serve in its "armed forces" in defiance of the international instruments relative to the protection of child rights.

On the other hand, if political asylum is meant to be pacific and humanitarian, the Tindouf camps are militarized, with the technical and logistical support of Algeria. This militarization seeks to dissuade the detained populations from returning to their homeland, Morocco. Yet many detainees managed to flee these camps once they had the occasion to.

All these violations are condemned by international humanitarian law, and are considered as crimes against humanity. The Statute of the International Criminal Court lists, in its articles 7 and 8, the acts deemed as crimes against humanity in the following terms: «deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; illegal detentions of civilian population and taking of hostages».

II.    The Legitimacy of Humanitarian Intervention in the Tindouf Camps

The illegality of the Tindouf camps and the violations of human rights perpetrated therein make a case for humanitarian intervention. To further illustrate this evidence, we will bring some elements to answer the following questions:

What are the grounds for the legitimacy of humanitarian intervention? What are its motives? What attitude is to be taken by the international community?

A.     Grounds for the Legitimacy of Humanitarian Intervention

Humanitarian intervention rests on the duty to intervene, a duty which has its roots in the philosophy of Human rights and the right to humanitarian assistance to persons in distress. Indeed, Article 3 of the Universal Declaration of Human Rights (10 December 1948) proclaims the right to life. Proclaiming the same right is article 12 of the International Covenant on Economic, Social and Cultural Rights.  The UN has established the principle of free access to victims through two key resolutions adopted by the UN General Assembly.

In addition to the normative action of the UN General Assembly which declares principles and rules in this regard, the Security Council has for several times intervened to decide upon the operational measures to be taken in some conflicts and humanitarian crises, such as in Somalia and Bosnia. It also established a number of ad hoc criminal courts to try the alleged perpetrators of war crimes and crimes against humanity. Added to this is the fact that the violation of human rights constitutes a threat to international peace and security.

B.     The Motives for Humanitarian Intervention in the Tindouf Camps

The Tindouf camps are set up in overt breach of international legality. In these camps, there is a flagrant violation of international humanitarian law and Human rights. Humanitarian assistance is siphoned off by the Polisario junta for the benefit of some officials. Civilian population are confined and taken hostages.  Therefore, it is difficult for that population to benefit from the most fundamental rights such as the right to free movement, the right to work, etc.

Furthermore, these populations are very much inclined to reintegrate their homeland, Morocco, where all their rights are guaranteed.

The confinement of civilian persons and children, coupled with preventing them from any movement outside the camps, are crimes against humanity and are war crimes as well. Worse still, the Polisario hampers the action of humanitarian organisations and their access to confined populations.

This inhuman, not to say degrading situation, justifies the right of the international community to intervene in these camps, to free the civilian population, enforce the rules of international humanitarian law under all circumstances, as provided for by the Geneva Conventions, on the one hand, and the rules and principles of Human rights, on the other.

C.     Towards a Coherent Intervention by the International Community in the Tindouf Camps

Article one of the four Geneva Conventions stipulates the obligation to respect and ensure respect for international humanitarian law "in all circumstances". This obligation to show solidarity in humanitarian issues should be concretized through cooperation between States and the UN. Therefore, reactions to this inhuman and abnormal situation in the Tindouf camps should be made within the spirit of collective security.

In this respect, the international community should intervene to put an end to this tragic situation, bring to justice the perpetrators of these acts deemed as war crimes and crimes against humanity, and repair the damage inflicted on detainees by direct and indirect instigators of these atrocities.

This intervention would facilitate the lift of the state of siege, the liberation of civilians taken hostages and the staging of a referendum in the camps in order to allow all the confined persons to decide on their fate.

The attitude of the Polisario, acquiesced in it by Algeria, which plays host to these camps in its territory, is a blatant violation against humanitarian law and the law of humanitarian assistance.

The duty of humanitarian intervention is an erga omnes obligation. Therefore, it should be discharged by all, including the neighbouring or adjacent countries who shall refrain from obstructing the provision or passage of humanitarian aid.Erga omnes rules are also jus cogens rules involving the prohibition of aggression and genocide, as well as the protection of the fundamental rights of humans. International jurisprudence has already recognised this notion of erga omnes rules.

While this newest practice of the United Nations has shown that the international community is increasingly adhering to the duty of intervention in humanitarian cases, it is still regrettable that such an intervention has not been yet been decided by the relevant international organizations, neither was it unilaterally agreed upon by States, concerning the humanitarian tragedy suffered in Tindouf.

States, international inter-governmental organizations, as well as international humanitarian organizations are; therefore, urged to intervene in these camps to uphold the fundamental rights recognized by the international instruments, the express purpose being to liberate the population confined in Tindouf.

Mohamed Bouharrou
Specialist in International Humanitarian Law
 

02/10/2012