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The Legal Status of Western Sahara and the Laws of War and Occupation
Por Jacob Mundy
Colaboraciones nº 1788 26 de Junio de 2007
The question of Western Sahara has been on the United Nations’ agenda for over forty years. The former Spanish colony -- a Colorado-sized chunk of desert just south of Morocco -- is Africa’s last non-self-governing territory. While almost all former European colonies have been allowed some measure of self-determination, the native population of Western Sahara has not yet had the chance to vote on their final status. The reason for this long delayed act of self-determination is quite simple. Western Sahara is also the site of one of Africa’s longest running conflicts, pitting Moroccan territorial claims against a nationalist independence movement. Nevertheless, Western Sahara’s legal status is clear: it is a non-self-governing territory awaiting decolonization through the a referendum on self-determination.
While this juridical characterization fits the historical facts, it is a limited treatment of the applicable international laws. Though the right of self-determination for non-self-governing territories is a fundamental issue in international law, far more is at stake in Western Sahara. The Western Sahara conflict goes to the heart of the basic norms of the Westphalian international order. Morocco’s forceful attempt to annex Western Sahara constitutes one of the most egregious violations of the international order codified in the wake of World War Two. The United Nations was founded to prevent the aggressive expansion of territory by force. Yet in Western Sahara, the Security Council has turned a blind eye to Morocco’s blatant contravention of the UN Charter.
Since invading Western Sahara in late 1975, Morocco has exerted varying levels of control over the land. Today Morocco occupies roughly three-fourths of the territory, while the rest falls under the de facto control of the Polisario Front, a nationalist independence movement formed in 1973 to fight Spanish colonialism. Starting in 1884, parts of Western Sahara fell under Spanish control, formalized as a colony in 1912. European rule ended in November 1975 when Spain hastily abandoned Western Sahara to Morocco and Mauritania (the latter withdrew in 1979). No government or body has recognized Moroccan sovereignty over the Territory pending the exercise of the native Western Saharans’ right to a free and fair expression of self-determination (i.e., a vote on independence).
Under international law, the outstanding question of Western Sahara can and should be treated under two distinct legal regimes. The first is laws regulating Non-Self-Governing territories and decolonization, which has become the dominant juridical discourse of Western Sahara. The second, however, has been systematically evaded by the international community: laws governing the use of force in international relations (jus ad bellum) and laws governing war itself (jus in bello), including International Humanitarian Law (IHL). This paper discusses the latter.
Western Sahara and the Laws of War
jus ad bellum
Morocco’s military invasion of Spanish/Western Sahara commenced in 30-31 October 1975. At that time, the colony was fully under Spanish control. Morocco’s invasion was motivated by the fact that Madrid was planning a referendum on independence, as called for by the International Court of Justice on 16 October 1975. Days after armed Moroccan forces penetrated Spanish Sahara, thousands of Moroccan civilians -- the ‘Green March’, with the active encouragement and logistical support of the Moroccan government -- crossed the frontier on 5-6 November, with the expressed intent on marching to the Territory’s capital, al-‘Ayun. The goal of the Green March was to force Spain to negotiate a hand-over of the Territory to Morocco. Otherwise Spain would have had to repel the thousands of unarmed Moroccan civilian marchers by force. On 6 November 1975, the UN Security Council deplored the Green March and called for its immediate withdrawal (Resolution 380), which Morocco soundly ignored. At that time, the Security Council was unaware of Morocco’s military invasion, though Spain brought the Green March to the attention of the Security Council as early as 17 October. At that time, Madrid had called it an invasion. Though the General Assembly took note of the Hispano-Moroccan-Mauritanian agreement, such acknowledgement did not constitute a legal transfer of Spanish administrative authority to Morocco. Thus Western Sahara is remains a Spanish administered territory.[i]

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