The question of Western Sahara (II)

My previous article on this subject was posted on this website on 16 December 2012. In it I explained why I had accepted an invitation from a Dutch film festival to give an appraisal of Javier Bardem’s film Sons of the Clouds {*} after its screening on 20 September 2012. I pointed out that my speech had consisted of three parts: (1) a bit of history, focusing on the role played by France in the days when Algeria was already destined to become part of metropolitan France whereas Morocco was a French protectorate destined to become independent, (2) an assessment of the film, drawing attention to the surprising emphasis it places on the role played by Algeria in Polisario’s armed resistance to Morocco’s occupation of Western Sahara, and (3) my personal position on the matter. For brevity’s sake I had only given a summary of the third part, but I have now been asked to post a summary in English of the first two parts as well. I am glad to oblige, but, as always, I do not translate: the versions are not identical in content.

A bit of history 1: the Sand War

In the nineteenth century, before French colonization, the provinces of Tindouf and Béchar (now part of Algeria) were under Moroccan influence, but the course of Morocco’s border was not defined. Such a lack of topographical precision was normal at the time. But after Morocco had become a French protectorate in 1912, while Algeria had been administered as an integral part of France since 1848, the French government felt a growing need for greater clarity about the course of the borders, especially after iron, manganese and oil had been found. In 1952 France therefore allotted both provinces to French Algeria. In Morocco this provoked indignation because it meant that at one stroke Paris had transferred a potentially prosperous region of Morocco to Algeria for the sole reason that Morocco was destined to become independent in due course whereas Algeria was meant to remain part of France forever.

The indignation mounted when – after Morocco had duly become independent in 1956 – president de Gaulle unexpectedly reversed his Algerian policy, as a result of which Algeria became independent as well. This prompted Morocco to call on the new Algerian government to return Tindouf and Béchar to Morocco on historical grounds. In Algeria, which was still reeling from its bloody and devastating war of liberation with France, the Morocccan step caused resentment, and was rejected by the country’s first president, Ben Bella. This was an unfortunate beginning for the bilateral relations between the two newly independent countries, but these were damaged for good when in October 1963 skirmishes in the region resulted in a real war, the ‘Sand War’ (Guerre des Sables). Thanks to prompt mediation by the Organization of African Unity and the Arab League, the war could be brought to an end in three weeks, but the damage had been done (see further: Assessment of the Film).

A bit of history 2: the Advisory Opinion

The Moroccan claim to Western Sahara is what remains of a much larger ancient claim of the Moroccan Kingdom on territories sparsely inhabited by tribes that offered their allegiance to Moroccan dynasties. The existence of that ‘Greater Morocco’ was brought to an end – although in many Moroccan eyes only interrupted – by European colonization in the early twentieth century, when Morocco became a French protectorate and what is now Western Sahara became a Spanish colony or province. Morocco’s view is that the border between Morocco and Western Sahara was an arbitrary colonial creation and has lost its significance in the decolonization process. The opposing view can be found in General Assembly resolution 1514 (XV) of 14 December 1960, also known as the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples.’ That resolution calls for immediate steps to be taken in all territories which have not yet attained independence, to transfer all powers to the people of those territories in accordance with their freely expressed will and desire in order to enable them to enjoy complete independence and freedom. The words ‘freely expressed will and desire’ and ‘complete independence and freedom’ were – and still are – interpreted by Polisario to mean that a referendum must be held in Western Sahara and that in that referendum independence must be one of the options.

When Morocco had become independent in 1956, it had immediately reminded the world of its claim on Western Sahara. As this claim was understood to remain dormant as long as the territory remained Spanish, no one paid much attention, but this changed in 1974 when Spain felt obliged to follow Portugal’s example and get rid of its remaining colonies. Spain intended to do so properly, that is, in conformity with General Assembly resolution 1514 (XV) and announced that it would hold a referendum on self-determination. Morocco immediately made it known that it could not agree to a referendum with independence as an option. A few weeks later it was announced in Rabat that Morocco would ask the International Court of Justice in The Hague for an advisory opinion on the status of Western Sahara at the time of its colonization by Spain.

It took the Court about ten months to produce its advisory opinion. Morocco had asked the Court to define the legal ties between the territory and the Kingdom of Morocco at the time of colonization by Spain (which was taken by the Court to mean 1884, when the King of Spain had proclaimed that he was taking Río de Oro under his protection). Rabat seemed to rely on the Court’s respect for the historical continuity of the Moroccan Kingdom and trusted that it would find sufficient proof of legal ties existing between the tribes that inhabited the territory and the Sultan of Morocco for it to conclude that General Assembly resolution 1514 (XV) could not apply to this situation. In its advisory opinion, however, the Court came to a different conclusion. It said that it had not found legal ties between the Sultan of Morocco and the tribes living in the territory of Western Sahara ‘of such a nature as might affect the application of General Assembly resolution 1514 (XV).’

This was a clear victory for Polisario – and for Algeria, which had skillfully defended Polisario’s case before the Court. But it remains surprising that the practical value of this outcome was so overrated by Polisario and its supporters. Either no one had explained to them that both an advisory opinion of the International Court of Justice and a resolution of the UN General Assembly were non-binding instruments, or they assumed that advantage was to be gained from this overestimation. It is a fact that even now, 37 years later, it is not uncommon to meet representatives of states or non-governmental organizations who claim that on account of the two instruments the Security Council is obliged to make Morocco give in and agree to a referendum with independence as an option.

I have often explained why I think that on the basis of the International Court of Justice’s advisory opinion of 16 October 1975, Polisario has the stronger case under international law, but also why I have always refrained from expressing support for Polisario’s position beyond that view, for fear of raising false expectations. That fear has played a crucial role in my dealings with the question of Western Sahara. It may give brief satisfaction to express support for Polisario’s just cause, but it is unconscionable to encourage Polisario to stand firm if one does not see even the remotest chance of realizing a genuine referendum in Western Sahara.

In this dilemma it is important not to regard the present deadlock as the result of a fundamental flaw in the United Nations’ legal system. It is not due to an oversight that advisory opinions of the ICJ and GA resolutions are non-binding. Members of the Security Council have their own responsibilities with regard to the maintenance of international peace and security. If in 1975 one of them had had his doubts about the wisdom of allowing a territory the size of Great Britain with fewer than 75,000 inhabitants to become an independent state, it would have been absurd if he had then been obliged to yield to an advisory opinion of the International Court of Justice.

Assessment of the Film

In my article of 16 December 2012 I already mentioned that I had been surprised by the emphasis the film placed on the role played by Algeria in Polisario’s armed resistance to Morocco’s occupation of Western Sahara. This was a novel experience for me. In January 2006, after my exploratory first four months as personal envoy of the Secretary-General for Western Sahara, I once told members of the Security Council that I had come to the conclusion that Algeria held the key to the solution. This led to such an indignant Algerian reaction that from then on I kept this conclusion to myself, privately becoming more and more convinced of its accuracy. In the course of 2007 I found that the UN Secretariat had wholly adopted Algeria’s way of thinking about Western Sahara, so I conformed to United Nations practice and acquiesced in the myth that the question of Western Sahara concerned a dispute between only two parties: Morocco and Polisario. Algeria was fond of this conception, for it made it easy for member states to take Polisario’s side: it seemed morally correct to support a weak liberation movement against an encroaching monarchy. Resentment between Polisario and Morocco was taken for granted, while animosity between Algeria and Morocco was a taboo subject.

In my article (in Dutch) of 21 September 2012, I suggested that Morocco and Algeria each had their own reasons to steer clear of a discussion of the Sand War of 1963 (translation): “Morocco prefers to keep quiet about it because militarily speaking it was not a very glorious operation, but Algeria has a much more political reason to avoid the subject: it does not want to risk conveying the impression that it became involved in the question of Western Sahara because it still had an axe to grind with Morocco.”

When I first saw the film Sons of the Clouds in September 2012, I was perplexed by the relaxed way it dealt with the role of Algeria in the conflict. I could not figure out what point the producer was trying to make. The film was unmistakably ‘pro-Polisario’: at some point Javier Bardem himself explains how in 2008 he and other Spanish participants in the Fisahara film festival in the Dakhla refugee camp had decided to address a manifesto to the Spanish government and to produce this documentary about the fate of the Sahrawi refugees in the camps. But even though consequently most of the people interviewed in the film are highly critical of Morocco, the film contains information that some five years ago the Algerian authorities would have preferred to suppress.

We are shown, for example, two Algerian journalists who do not mince their words when they are asked to describe the role played by Algeria. Teyeb Belghuiche confirms with a chuckle that for its war effort Polisario received ‘everything, oh yes, everything,’ from Algeria, almost displaying disbelief that his interviewer could ever have thought otherwise. More importantly, Said Kaced, an ‘Algerian journalist exiled in France,’ calls to mind the Sand War of 1963, since which Algeria and Morocco have lived in a permanent state of conflict. ‘It was’, he continued, ‘as though Morocco and Algeria had found in that conflict a crystallization point of their enmity, their strife, and even their … hatred.’

When I heard Said Kaced make this statement in Sons of the Clouds, the following thoughts crossed my mind: This interview is at odds with the UN practice of treating animosity between Algeria and Morocco as a taboo subject. The raison d’être of that practice is the wish to uphold the theory that Morocco and Polisario are the only parties to the conflict. Algeria cannot deny that it helps Polisario, but its only avowed motive is solidarity with a people that struggles under the yoke of colonialism exactly the way Algeria itself had until 1962. Any suggestion that, in addition to that, Algeria has a score to settle with Morocco may diminish Algeria’s willingness to support Polisario year after year. So what is the interview doing in a pro-Polisario film?

The reason could be that Javier Bardem was determined to be as objective as possible. Nobody can object to that, even if it may cause some supporters of Polisario to reconsider their position once they realize that Algeria’s generous backing of Polisario may primarily be an expression of a conflictual relationship between Algeria and Morocco that predates the decolonization of Spanish Sahara by at least twelve years.

But is it a likely explanation? Was it perhaps just a mistake? So many people were interviewed and almost every interview had political implications. The makers of the film have done a good job, but perhaps the selection and compilation of the interviews was simply too much for them?

It was either a mistake, or it is a ray of hope. There is hope if at last Algeria’s role can be candidly discussed. The question of Western Sahara does not stand a chance of ever being understood as long as Algeria’s deep involvement is not taken into account.

* Sons of the Clouds (‘Hijos de las Nubes, la última colonia’), film director: Álvaro Longoria; film producer: Javier Bardem.