Saturday, October 07, 2006

Full report of OHCHR

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


INTRODUCTION

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.


BACKGROUND

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,
respectively.

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.


HUMAN RIGHTS SITUATION

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.


WESTERN SAHARA

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
trial.

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
court.

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
complaints.

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
authorities.


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
self-determination.(5)

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
delays.

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.


REFUGEE CAMPS, TINDOUF (Algeria)

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
movement.

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.


THE INTERNATIONAL COMMUNITY

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."


CONCLUSIONS

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:


RECOMMENDATIONS

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
right.

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.


NOTES:

(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
Covenant.

(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
custody.

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
assembly.

(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.



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