By Nicole Vander Meulen
Brahim Dahane, the president of the Sahrawi Association of Victims of Grave Human Rights Violations, describes his time in a Moroccan prison as hell. He says that he “spent four years blindfolded and handcuffed, forced to stand all day against a wall” and was subjected to other degrading treatment by Moroccan officials. The conflict between the indigenous populations of Western Sahara and the Moroccan government raises many human rights concerns. Some of the most notable are Morocco’s imprisonment of Western Saharan activists, their treatment while in prison, and the questionable judicial processes used to convict them.
After the Spanish colonial power withdrew from Western Sahara, Moroccan forces annexed the area in 1975 in an operation that the International Court of Justice (ICJ) deemed illegal. The ICJ called for Morocco’s withdrawal from the territory, but the United States and France (two countries that have strong relationships with Morocco), through the Security Council, were able to effectively block the enforcement of this judgment. The indigenous population of Western Sahara, known as the Sahrawi, was not willing to accept Moroccan rule without a fight. Instead they fought through the Popular Front for the Liberation of Saguia El-Hamra and Rio de Oro (Polisario), originally as an anti-colonial movement, which has since been recognized as the legitimate government of Western Sahara by more than seventy countries and is also a full member of the African Union. After 1975 the Polisario and Moroccan forces clashed periodically, but the fighting ended when the two sides entered into a ceasefire in 1991. At this point, Security Council resolution 690 established the United Nations Mission for the Referendum in Western Sahara (MINURSO). Prior to the ceasefire, in 1988, the two sides had agreed to have a referendum, which would provide Western Saharans with the power to decide between integration into Morocco or full independence. However, this referendum has never taken place. Instead, Morocco and its western allies (the U.S. and France) have been pushing for the “autonomy plan” which would grant limited autonomy to the region but would in essence maintain Morocco’s power over the area.
Arbitrary detention, torture, and unfair trials
Although Morocco’s actions in Western Sahara raise many human rights issues, one of the most egregious human rights abuses carried out by Morocco is the arbitrary detention and torture of human rights and pro-independence activists. According to a United States State Department report published in 2011, the Moroccan government uses arbitrary detention to subdue dissent. During their arrest and imprisonment, detainees are also subjected to torture (including electrical shocks and being burnt by cigarettes), beatings and other forms of ill-treatment by Moroccan security forces. In addition to the physical abuse, prisoners may also be denied access to health care and transferred to prisons far away from their family members. According to both international and local NGOs, these abuses are especially directed towards Sahrawi advocates for independence. After his visit to Morocco and Western Sahara, the United Nations Special Rapporteur on Torture Juan Mendez stated that while the political will to stop these incidents exists, when prisoners allege that they have been tortured there is no investigation or prosecution of those who are responsible. For example, prisoner’s requests for medical examinations after submitting claims of mistreatment are routinely dismissed. This mistreatment of activists does not occur sporadically, but is quite common.
In addition to this mistreatment, defendants in politically charged cases are often denied their right to a fair trial. Courts in Morocco have refused to call witnesses that would create reasonable doubt about the defendant’s guilt, and have allowed defendants to be convicted based on allegedly coerced confessions. Access to a lawyer is also not guaranteed. Juan Mendez concluded that although Morocco’s Code of Criminal Procedure provides the right to a lawyer, in practice this right is not fully respected. In many politically charged cases, detainees only have access to a lawyer within the first twenty four hours of detention, and even then meetings are limited to thirty minutes and must take place in the presence of an investigator.
Morocco has also tried civilians in military courts instead of civilian courts, the most recent example of which occurred on February 17 of this year. In November 2010, after participating in a peaceful protest camp near the West Saharan city of Laayoune, around one hundred Sahrawi activists were arrested. The arrests occurred after Moroccan security forces violently disbanded the camp with tear gas, batons, and rubber bullets, which lead to clashes between protestors and security personnel and ended in deaths on both sides. Two years later, twenty-five of those arrested were still in prison awaiting trial. During that time they claim that they were tortured and even raped. Many of them also had severe health problems.
After postponement of their trials (once in January 2012 and again in October 2012), the detainees were tried by a military court on February 17, 2013. Individual detainees faced various charges, including violence against a public official, the desecration of a corpse, and being part of a criminal organization. Nine of the defendants were sentenced to life in prison, fourteen were sentenced to between twenty and thirty years in prison, and two were sentenced to two years in prison but were released because they had already served that time during their pre-trial detention. Amnesty International condemned the trials as flawed and called for new trials for the activists in a civilian court, stating that military courts do not provide an impartial hearing for civilians. The use of military courts, the repeated postponement of the trials, and Morocco’s refusal to investigate claims of torture and coerced confessions all cast doubt on the fairness of the judicial process in these cases.
Relevant International Law
Morocco is a State Party to the International Covenant on Civil and Political Rights (ICCPR). Despite the fact that Morocco is an occupying force in Western Sahara, Morocco’s obligations under the ICCPR still apply to individuals that live in the region. Article 2 of the ICCPR mandates that State Parties “ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Paragraph 10 of General Comment No. 31 explains that the language in Article 2 means that State Parties have to guarantee the rights in the ICCPR to anyone “within the power or effective control of that State Party,” and that it also applies to “those within the power or effective control of the forces of a State Party acting outside its territory.” Because Morocco has effective control over individuals living in Western Sahara, Morocco’s obligations under the ICCPR also apply to them.
The incidence of alleged torture and mistreatment of detainees combined with Morocco’s refusal to investigate these claims or allow human rights NGOs to investigate them poses a human rights problem under the International Covenant on Civil and Political Rights (ICCPR). Article 7 of the ICCPR plainly states that there is a right to be free from torture and treatment that is cruel, inhumane, or degrading. Article 10 states that people who are “deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
Morocco’s arbitrary detention of dissidents, refusal to investigate the many allegations of coerced confessions, use of military courts to try civilians, and lengthy postponement of trials also poses human rights problems under the ICCPR. Article 9 prohibits State Parties from arbitrarily arresting and detaining individuals, and requires that State Parties either provide a trial within a reasonable time or release detainees until their scheduled trial date. Article 14 creates the right for those facing criminal charges to have “a fair and public hearing by a competent, independent, and impartial tribunal.”
Because of the special relationship between Morocco and both the United States and France, citizens within those states should put pressure on their government to publicly criticize Morocco’s actions and call for investigations into allegations of torture, improved treatment of prisoners, and the provision of fair trials in a civilian court. Indeed, the US should be commended for recently submitting a draft resolution calling for a human rights monitoring and reporting mechanism to MINURSO. Unfortunately, the United Nations Security Council voted to renew MINURSO’s mandate without a human rights component. In order to get Morocco to protect the rights of Sahrawi activists generally and also specifically in the case of the twenty five activists recently convicted, international civil society needs to continue to put pressure on Morocco and the United Nations. Morocco can no longer be allowed to treat human rights and pro-independence activists as it has in the past.