Tags: Western Sahara, Morocco, UN, MINURSO, SOFA, military agreement No. 1, car license plates
According to a confidential note from the Moroccan Ministry of Foreign Affairs titled « Brief on SOFA and Military Agreements with MINURSO, » the military agreements and the SOFA, in their current state, are favorable to Morocco. Here is the text of this note:
Introduction:
MINURSO was established in accordance with Security Council Resolution 690, adopted on April 29, 1991. The SOFA was concluded on February 11, 1999. Military Agreement No. 1 was signed on January 23, 1958, while the other military agreements, No. 2 (control and use of MINURSO personnel’s weapons and ammunition) and No. 3 (reduction of the danger of mines and unexploded ordnance), were signed on July 23, 1998, and March 12, 1999, respectively.
2 – In their current state, the military agreements and the SOFA are favorable to Morocco because:
They fall under the first generation of peacekeeping operations;
They are considered less restrictive than more recent SOFAs negotiated under Chapter VII;
They adhere to the « classic architecture » of SOFAs;
The clear wording of Military Agreement No. 1 requires no interpretation;
The SOFA provides Morocco with significant levers for rigorous management of its relations with MINURSO;
The SOFA helps address attempts to expand MINURSO’s mandate to include human rights.
SOFA Analysis
Reviewing the SOFA allows for identifying various categories of privileges and immunities granted to MINURSO and its personnel (see annex on privileges and immunities).
It also identifies recurring issues and allows for more rigorous management of our country’s relations with MINURSO.
A/ Optimization of SOFA Provisions
Article 2: « Any obligation contracted by the Government or any privileges, immunities, facilities, or concessions granted to MINURSO extend to the mission area. »
In the current context, the mission area only includes the territory of the Sahara, which limits movement to the southern provinces of the Kingdom. Any entry or exit must be notified to Moroccan authorities.
Article 5: « MINURSO and its members are required to refrain from any acts or activities incompatible with the impartial and international nature of their functions or contrary to the spirit of this agreement. »
Some MINURSO officials and members have shown biased attitudes in reports to the DPKO and briefings to foreign delegations, whereas they should strictly observe the country’s laws and regulations as stipulated in Article IV.
Article 18: « The Government will provide MINURSO, to the extent of its capabilities and in agreement with the Special Representative, with the locations and other premises necessary for the conduct of operational and administrative activities. »
This article obliges Moroccan authorities only to provide free housing, within their means.
B/ Recurring Issues in SOFA Implementation
Freedom of Movement (Article 13): « MINURSO members have complete freedom of movement in the mission area (territory of the Sahara) … »
Entry, Stay, and Departure (Article 38): Regarding entry and exit from the territory, Moroccan authorities must be informed. Procedures for information need clarification.
« Members are subject to migration control and formalities, without prejudice to the immunities and privileges granted. » (Articles 37, 38)
Differentiation in treatment between MINURSO personnel categories (SRSG, Force Commanders, status of MINURSO staff, status of mission experts, local agents, etc.) (see annex on different types of immunities and privileges by category)
Judicial Issues (Articles 53, 57, 59):
For civil matters: The Special Representative has discretionary power to judge a member involved in civil affairs, whether or not performing official duties. In case of prosecution, the Claims Commission is referred to instead of Moroccan courts.
For criminal matters: Prosecution decisions are made jointly by the Special Representative and Moroccan authorities. In the absence of such an agreement, refer to the arbitration procedure outlined in paragraph 59.
Deployment of MINURSO Personnel for Maintaining Order and Discipline (Article 46):
Maintaining order and discipline is ensured by the personnel within MINURSO premises and deployment areas. Note that the SOFA does not provide for patrols in city neighborhoods.
Vehicle Registration (Article 14):
« The registration and certificates required by the Government are not required for MINURSO vehicles … »
The SOFA allows MINURSO to use its own registration, such as (MIN No.). However, since 1991, MINURSO has used registration assigned by Moroccan authorities (No. 61 01 – Morocco).
MINURSO Mail (Article 12c):
The SOFA provides that MINURSO is responsible for sorting and forwarding official and private mail. Issues arise with private mail sent via national postal services, which must comply with current regulations.
Stores (Article 16b):
The management of stores is entrusted to MINURSO. Issues arise with the resale of products by MINURSO members (alcohol, cigarettes, etc.).
General Framework:
Strict adherence to the role of Moroccan Coordination as the sole and indispensable interface, except for military aspects, with all administrations of the Kingdom. Both MINURSO and the concerned administrations must be required to transit exclusively and systematically through Coordination.
Compliance with national laws and regulations, as well as customs, particularly road codes and good morals. Security services in the region should avoid any leniency or flexibility towards MINURSO members. The law and current regulations should be strictly observed (preparation of reports, noting violations, judicial procedures, etc.).
In the same context, MINURSO vehicles should carry registration plates as observed since 1991. However, to address this issue and the concerns of the DPKO, and in accordance with the provisions of the United Nations Convention on Privileges and Immunities (February 13, 1946), Morocco could propose issuing yellow plates (OI, No.) to MINURSO vehicles, similar to UNHCR vehicles in Moroccan Sahara, granting all immunities and privileges as per the Convention. Our argument could be supported by Article IV of the SOFA, « MINURSO and its members are required to refrain from any acts or activities incompatible with the impartial and international nature of their functions or contrary to the spirit of this Agreement. They will fully observe the laws and regulations of the country. The Special Representative will take all necessary measures to ensure compliance with these obligations. »
Control and Access at Regional Airports:
Migration formalities must be strictly observed for all MINURSO personnel, according to their immunities and privileges.
Mission personnel must undergo standard checks when traveling on commercial flights, without prejudice to their granted immunities and privileges.
Access to the airport, both for vehicles and UN personnel, should be regulated and limited to MINURSO’s actual needs.
Others:
Consider the possibility of reducing MINURSO’s visibility by limiting vehicle circulation outside working hours.
Consider installing a Moroccan police station near the main entrance to the MINURSO headquarters in Laâyoune to better control access to the mission.
I. Analysis of Military Agreements
Since the ceasefire came into effect on September 6, 1991, the Royal Armed Forces and the military component of MINURSO have concluded the three aforementioned military agreements.
The first concerns the definition of lines of conduct and procedures to be followed by both parties.
The second relates to the conditions for implementing and controlling the armament, ammunition, explosives, and devices of the Constituted Military Units (U.M.C), Swedish and Pakistani, whose repatriation was completed on February 9, 1999.
The third deals with strengthening cooperation between the FAR and MINURSO in reducing the dangers of mines and unexploded ordnance.
It should be noted that some officials of the MINURSO military component have engaged in behavior deviating from the responsibilities and commitments agreed upon with the Mission, and have shown a tendency to depart from the spirit and letter of Military Agreement No. 1, particularly concerning the terms of paragraph 4.
Interpretation of Paragraph 4 of Military Agreement No. 1
This paragraph is subject to a biased and erroneous reading by the former General, MOSGAARD, who insists on inspecting military devices and living areas of FAR units deployed in the Southern Zone, to evaluate their military potential, check their chain of command, and request their battle orders.
However, the provisions of paragraph 4 of Military Agreement No. 1 clearly state that military observers have complete freedom of movement/action to:
Visit the command posts of units (companies and above) and the HQs (excluding living areas);
Conduct any type of patrol, whether land or air, at any time;
Station near the units.
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