Tags : Morocco, OHCHR, monitoring human rights in Western Sahara, United Nations, MINURSO, special procedures, CNDH,

Draft – Confidential – Not for circulation

Observations on Moroccan proposals for human rights monitoring in Western Sahara

OHCHR is of the view that the lack of independent human rights monitoring in the Western Sahara resulting from its status as a non-self governing territory is untenable. It believes that the United Nations has a responsibility to fill this monitoring gap in order to ensure that the people of Western Sahara can enjoy their basic human rights and the protections and guarantees offered by the international human rights treaties. Proper human rights monitoring may help to remove the allegations and counter-allegations of human rights violations from the political negotiation process.

Rationale for advocating for monitoring

It has been suggested that if OHCHR/the UN call for human rights monitoring, they are somehow acting at the behest of Morocco’s opponents as part of a strategy to undermine Morocco’s autonomy proposals. OHCHR in its advocacy should make clear that OHCHR’s position has been determined independently of any similar position adopted by the parties in response to the human rights situation on the ground in the territory and the United Nations’ responsibilities in terms of the global protection and promotion of human rights. OHCHR does not wish to enter into the political fray – indeed one of the reasons for its call for human rights monitoring is precisely to remove human rights as a political football from the political negotiation process. Ambassador Ross shares the view that an objective determination of the human rights situation on both sides would assist the political process and could contribute to building confidence between the two sides.

Minimum requirements for effective monitoring

At a minimum, any mechanism for human rights monitoring should conform to the following minimum requirements:

Independence – the monitoring should be undertaken or overseen by an independent entity, not tied to either of the parties to the dispute over the territory.

Impartiality and balance– the monitoring should be impartial, looking at all allegations of human rights regardless of the alleged perpetrator, and balanced, covering allegations committed in the territory of Western Sahara as well as the camps at Tindouf.

Regular and sustained – the monitoring should be undertaken regularly and in a sustained manner, including the possibility of effective follow-up to findings and engagement with responsible authorities to seek solutions and remedies.

Properly mandated – the monitoring should proceed on the basis of a clear legal mandate with proper agreed modalities for access to places and individuals.

Monitoring of human rights by the reformed Moroccan National Human Rights Council

The Moroccan Government has announced a package of constitutional reforms which include the creation of a national human rights institution in conformity with the Paris Principles on NHRIs and a process of regionalization extending to the disputed territory of Western Sahara. It is proposed that the Moroccan NHRI would have a regional presence inside Western Sahara and a wide-ranging mandate to promote and protect human rights which would include monitoring and reporting.

OHCHR welcomes the reforms and looks forward to seeing their effective implementation in Morocco for the benefit of the citizens of the country.

The extension of these reforms and the remit of the NHRI into the territory of Western Sahara however raises a number of political and practical questions which make them problematic as a response to the call of independent human rights monitoring in the territory:

1. Western Sahara is considered by the United Nations to be a non-self governing territory whose sovereign status has yet to be determined. It is therefore inappropriate for Morocco to seek to extend the mandate of its national institutions into the territory since it may be seen as an attempt to pre-empt the outcome of the political negotiations.

2. The monitoring undertaken by the Moroccan NHRI in Western Sahara, notwithstanding the independence and impartiality of that institution within the national context of Morocco, would fail to meet the international requirements set out above. In particular, it could not, as a Moroccan national institutional, be considered independent from the parties to the dispute. Furthermore, it would have no competence in the camps in Tindouf and therefore would be unable to monitoring the entire human rights situation on an impartial basis.

3. To accept the Moroccan proposals as a response to the issue of human rights monitoring for Western Sahara – as distinct from their role as a response of internal demands for reform and respect for human rights in Morocco proper – would be in some sense to endorse the legitimacy of the Moroccan claim to the territory and thereby to pre-empt the outcome of the political negotiations.

Monitoring of human rights in Western Sahara by special procedures of the Human Rights Council through a standing invitation from the Government of Morocco

It has further been proposed that, as an international complement to the mandate of the Moroccan NHRI, the Moroccan Government would extend an open and standing invitation to the special procedures of the Human Rights Council to visit the territory and report on their findings. There are 33(?) special procedures mandates covering a range of specific human rights issues, many of which would have direct relevance to the situation in the Western Sahara.

OHCHR welcomes Morocco’s commitment to enhanced cooperation with both OHCHR and the Human Rights Council with regard to the protection and promotion of human rights in Morocco.

The proposal however raises a number of practical and political issues which make it problematic as a response to the need for independent human rights monitoring in the territory:

1. The invitation would be issued by the Government of Morocco to visit Morocco. There would be objections therefore to the idea that the Moroccan Government has the authority to invite special procedures to visit the territory of Western Sahara, objections which may be shared by some special procedures mandate holders.

2. Special procedures mandate holders are independent experts who are free to determine their own visit schedules and priorities. They have global mandates to look at the human rights situation all over the world and may consider other countries and territories to have a higher priority.

Furthermore they have limited mission funds which usually allow for only two missions per year. It would be inappropriate for Morocco to offer to pay the costs of the extra missions since it would undermine the perception of independence of the mandate-holders. If it were feasible for a large number of these mandate-holders to visit Western Sahara in one year, there may be objections that the special procedures system was devoting disproportionate attention to one territory given the numerous concerns arising each year throughout the world.

3. The fact that various aspects of human rights are dispersed amongst the thematic mandate holders means that they could only provide a disjointed form of monitoring unless cumbersome joint missions could be arranged. This fragmented approach to monitoring in the territory and the camps would be exacerbated by the fact that if it were accepted that Morocco could invite mandate holders to visit the territory as part of Morocco, the mandate holders would normally seek to examined the situation in the whole of Morocco, weakening the focus on the Western Sahara itself. Once again, this would also exclude an examination of the situation in the camps.

4. Special procedures would only realistically be able to undertake one visit to the territory so there would be no regular or sustained monitoring of each thematic issue and limited opportunities for follow up.

Under these circumstances, the idea of co-opting special procedures into human rights monitoring for Western Sahara provides a problematic response to the question of providing effective independent human rights monitoring. The proposal raises issues of independence, impartial assessment of both the territory and the camps and the need to ensure regular and sustained reporting.

Some of these concerns might be addressed if the Human Rights Council were to mandate a special rapporteur with a particular focus on Western Sahara, in the same vein as the mandates for Myanmar, Cambodia and most recently Iran. OHCHR is not currently advocating this approach which requires further discussion. It is not clear that the Security Council could request the HRC to create such a mandate nor that the HRC members would endorse the idea.

Monitoring human rights through an OHCHR country office or regional office in Rabat

After a period of inactivity and prevarication, Morocco has resumed activity on the negotiations to open an OHCHR regional office for North Africa in Rabat. It has requested an urgent mission to the Beirut RO and indicated that it will thereafter send a delegation to Geneva to conclude an agreement.

OHCHR regional offices perform particular functions which are distinct from OHCHR country offices. The latter, according to OHCHR’s standard memorandum of understanding template, include both technical cooperation functions and protection, monitoring and reporting functions. Regional offices however do not normally undertake monitoring and protection work, but concentrate on promotion and technical assistance at a regional level.

It may be proposed that an OHCHR RONA in Rabat could provide an international dimension to the human rights monitoring package which Morocco is currently developing to respond to concerns in the Security Council. This suggestion may be problematic for a number of reasons:

1. OHCHR regional offices do not normally undertake monitoring work and to introduce this mandate for the RONA might raise objections from other states in the region and from other host countries of OHCHR regional offices that might fear that the precedent would open up the possibility that they might themselves become subject to OHCHR monitoring by stealth.

2. An OHCHR presence based in Rabat with a monitoring mandate could expect to face particular difficulties in getting access and cooperation from Algeria and POLISARIO/SADR authorities in the camps and therefore would not be able to provide impartial and balanced monitoring.

Following recent events in the region, Rabat may no longer be the best option for the location of an OHCHR regional presence, in particular given the likelihood of Algerian objections.

An OHCHR country office for Morocco would face similar objections with regard to the appropriateness of an office established by agreement with Morocco covering the territory of Western Sahara and the camps.

An OHCHR country office for Western Sahara might be more acceptable but might in practical terms would be indistinguishable from a human rights component within MINURSO and certainly dependent on the Mission for logistical support.

James Turpin

OHCHR focal point for conflict prevention and early warning

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