Tags : #Morocco #Algeria #Frente_Polisario #Western_Sahara #UN #UNHCHR #Special_Rapporteurs #human_rights #MINURSO
This internal Moroccan note analyzes the implications of Morocco’s full opening to the Special Procedures of the UN Human Rights Council. It first highlights the country’s « positive and constructive cooperation » with these mechanisms (responses to communications, invitations to rapporteurs). It then outlines the obligations and risks associated with this commitment, particularly the possibility that procedures may focus on the territory of Western Sahara, which Rabat considers « exploited by Algeria and the Polisario. » Finally, it proposes a rigorous management strategy to oversee visits, defend the claimed « Moroccan sovereignty and avoid the internationalization of the conflict. »
Text of the note
Mister Minister,
Subject: Question of the Sahara / Reflection Note on the Stakes of Morocco’s Future Interaction with the Special Procedures of the HRC.
In light of the commitment made by Morocco to grant access without reservation or restriction to all mandate holders of the Special Procedures of the Human Rights Council (OP 12 of resolution 1979), I have the honor to submit to you a reflection note on certain aspects related to the implementation of this commitment, as well as on the stakes of interaction with the Special Procedures of the Human Rights Council in the context of the shameless instrumentalization of the human rights issue by Algeria and the Polisario in the Moroccan Sahara.
I. Current Positive Interaction of Morocco with the Special Procedures of the HRC:
Over the past decade, and benefiting from the reforms undertaken by Morocco in promoting human rights and defending fundamental freedoms, Morocco has engaged, both in approach and method, in a logic of positive and constructive interaction with the Special Procedures of the defunct Commission on Human Rights and the new United Nations Human Rights Council.
At the level of approach:
Morocco has always actively participated in the consultation process for the negotiation of resolutions establishing mandates of the Special Procedures of the Human Rights Council.
1- In terms of civil and political rights:
- Morocco, together with Norway, was the initiator of the resolution on human rights defenders and presented it in 2000 before the former Commission on Human Rights.
- Morocco is the only Arab country to have co-sponsored, since 2003 to this day, resolutions on problematic themes such as those presented by France on arbitrary detention, enforced or involuntary disappearances, or the resolution submitted by Denmark on the fight against torture.
- Since 2010, Morocco has become, with France and Argentina, the main author of the resolution on enforced disappearances, which renewed for 3 years the mandate of the Working Group on Enforced or Involuntary Disappearances.
2- In terms of economic, social and cultural rights:
- Morocco has always participated in and introduced additions to resolutions on the promotion of economic, social and cultural rights.
- The objective of these additions is to highlight the actions undertaken by Morocco, within the framework of the National Human Development Initiative (INDH), in resolutions on the fight against extreme poverty, the right to education and adequate housing, the right to access to drinking water and sanitation, etc.
- Morocco has always supported the establishment and renewal of the Special Procedures of the HRC, whose objective is to promote economic, social and cultural rights.
At the level of method:
1- Systematic response to communications and openness to visits of Special Procedures of the HRC during the 2000s:
a- Response to communications from Special Procedures
Conscious of the importance of interaction with HRC mechanisms, Morocco has always responded appropriately to communications, urgent appeals, bilateral, tripartite, and even joint communications from special rapporteurs, independent experts, and working groups of the Human Rights Council. Below are some assessment elements on Morocco’s responses:
- Morocco received 54 communications over the past 8 years, of which only 18 concerned allegations regarding persons from the Southern Provinces.
- Over the last 3 years, Morocco responded to 7 communications from Special Procedures in 2009, 12 in 2010, and 5 in the first quarter of 2011.
- The response rate to these communications reached an overall average of 94% over the last three years and 100% for the year 2010.
The objective of reacting within the deadlines set by the Special Procedures is to reflect Morocco’s response in the reports of these mechanisms which are submitted to the Human Rights Council.
*b- Invitation by Morocco of 4 Special Procedures of the HRC:*
During the 2000s, Morocco invited 4 Special Procedures which carried out visits to Morocco. They are:
- The Special Rapporteur on the sale of children, child prostitution and child pornography (2000);
- The Special Rapporteur on the rights of migrants (2003);
- The Special Rapporteur on the right to education (2006);
- The Working Group on Enforced or Involuntary Disappearances (2009).
At the end of their visits, the 4 Procedures shared their reports with Morocco for general comments and observations before their submission to the Human Rights Council. The 4 reports were, broadly speaking, balanced and were the subject of a positive interactive debate with the members of the HRC.
2- Morocco’s participation in the interactive debate on the reports of the 4 Procedures after their visits to Morocco:
Morocco’s strategy, both at the former Commission on Human Rights and at the Human Rights Council, has always been to take the lead during the interactive dialogue between the Special Procedures and the members of the HRC, and to express itself in a constructive spirit on the context of the visits, which are part of Morocco’s irreversible choice for the promotion of human rights. The objective is to demonstrate that our country interacts positively with the mechanisms while other countries, particularly in the region, refuse any dialogue or even any visit.
In addition to its positioning at the HRC within the framework of dialogue with the Special Procedures, Morocco has been, this year, one of the rare countries that has responded substantially to the recommendations of the Special Procedures. Thus, to embarrass certain countries, notably Algeria where the number of disappeared exceeds 2000 cases, and to maintain the momentum of the visit of the WGEID, the first of its kind in the Arab world and Africa, Morocco spoke at the last session of the HRC to emphasize that it responded favorably, within the framework of its positive interaction with this Special Procedure, to 22 out of 24 recommendations of the WGEID, a ratio of over 90%.
This participatory method reinforces Morocco in its approach of openness to the Special Procedures and establishes its dynamic role as a credible partner. However, the commitment made by Morocco regarding its unreserved and unrestricted openness to all 33 Procedures of the HRC must prompt us to consider the prospects and challenges of our interaction in the context of the new strategy following the call launched by the so-called Abdelaziz to the Sahrawis for an « Independence Intifada throughout the Kingdom ».
II. Prospects and Challenges of Interaction with the Special Procedures
1. Morocco’s Obligations:
Given its commitment to grant unimpeded access to all Special Procedures, Morocco is called upon to guarantee mandate holders freedom of movement throughout the national territory and freedom of investigation, particularly concerning:
- Access to prisons, detention centers, and places of interrogation;
- Contacts with central, local authorities, and with all branches of the government;
- Contacts with representatives of NGOs, other private institutions, and the media;
- Confidential interviews, free from any supervision, with witnesses and other persons, including those deprived of liberty;
- Access to all documents relevant to the mandate.
- Guarantee that individuals contacted by the mandate holder will not be subjected to any retaliatory action or judicial prosecution.
2. Constraints:
The bet taken by Morocco through openness to the Special Procedures entails certain constraints, among which it is worth citing:
- The possible increase in the number of communications alleging human rights violations in the Sahara region would be used by the separatists;
- Requests for visits that will be made by the Special Procedures cannot be refused or ignored.
- These visits, unlike communications and other modes of action of the Special Procedures (urgent appeals, communications, declarations), could prove problematic.
- Among the Special Procedures whose visit to Morocco could prove problematic, it is worth citing those concerned with the themes of freedom of expression, freedom of association, arbitrary detention, enforced disappearances, torture, extrajudicial executions,
the situation of human rights defenders, freedom of religion, and the anti-terrorist fight.
- Some Special Procedures might want to focus exclusively on the southern provinces and highlight a reality distinct from the rest of the national territory.
- Any potential refusals or delays in concretizing visits, as well as the multiplication of allegations and communications, would be used by our adversaries to demand the establishment of a Special Procedure exclusively dedicated to the Sahara, or even to justify the request to equip MINURSO with a monitoring mechanism.
- The current mandate holders of the special rapporteurs are either African or Latin American nationals (e.g., Rapporteur on extrajudicial, summary or arbitrary executions (South African), the Special Rapporteur on the situation of human rights defenders (Ugandan), the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (Guatemalan), the Special Rapporteur on torture or other cruel, inhuman or degrading treatment or punishment (Argentinian), Special Rapporteur on adequate housing (Brazilian).
- The CNDH (National Human Rights Council), as the national institution authorized to receive and process human rights violation complaints, risks being bypassed by some complainants who, taking advantage of the ease of seizing the Special Procedures and at the instigation of our adversaries, will address themselves directly to the HRC mechanisms.
- In practice and according to the code of conduct for Special Procedures, mandate holders have addressed recommendations and even communications to de facto authorities and non-state actors, which could be used by the Polisario to gain visibility as an interlocutor of the Special Procedures. However, Morocco must assert the spirit and letter of resolution 1979 which stipulates that the improvement of the human rights situation in the Sahara and the Tindouf camps is conditional upon the parties’ (Morocco and Algeria) respect for their obligations under international law.
3. Management of Future Interaction with the Special Procedures of the HRC:
The commitment of openness to the Special Procedures, although entailing constraints, is in fact akin to a permanent invitation that many countries have issued towards the HRC mechanisms to demonstrate their commitment to the promotion and protection of human rights.
This open invitation implies constraints that must be averted through the rigorous definition of the terms of reference for visits within the framework of strict respect for mandates and the code of conduct of the Special Procedures, namely:
- Communications are not meant to replace a judicial or other procedure at the national level; their main objective is to obtain explanations in response to allegations of violations and to promote the adoption of measures aimed at protecting human rights;
- Communications must not contain any value judgment and in no way have an accusatory aspect. They are strictly intended to gather clarifications regarding allegations of human rights violations.
- Visits are only conducted with the consent or at the invitation of the State concerned, the promotion of dialogue and cooperation being an obligation incumbent upon the Special Procedures and stakeholders. However, a possible repetition of the Gdim Izik scenario or a flow of allegations of torture or arbitrary detention would incite a request for an urgent visit by certain Procedures. Hence the need for vigilance and the necessity to prepare for visits in terms of upgrading our detention centers and prisons throughout the Kingdom, in accordance with the United Nations Minimum Rules in this matter.
- The official visit program is determined, according to the code of conduct for Special Procedures, directly with the host country authorities, with the administrative and logistical support of the local UN office and/or the on-site representative of the OHCHR, who can also contribute to the organization of private visits;
- Any potential contribution of MINURSO to the preparation of visits must therefore be excluded, it being specified that it is Morocco which administers the Sahara region;
- Visits must not focus solely on the southern provinces, in accordance with resolution 1979. Henceforth, any request for a visit must be addressed to Morocco and to Algeria, unless the Algerian authorities do not consider Tindouf part of their territory.
- The terms of reference for visits must imperatively specify the responsibilities of Algeria and Morocco to avoid the scenario of the report of the unfinished visit of the OHCHR team to Morocco and Algeria in 2006.
- The visit report must first be submitted to the host State for verification and correction of any potential errors or misunderstanding.
- Independent national human rights institutions constitute, according to the code of conduct for Special Procedures, the ideally suited interlocutor for interacting with the Special Procedures. The respect for the role of these national institutions as the initial and unavoidable recourse for receiving and processing human rights violation complaints must be imperatively underlined in accordance with paragraph 131 of the code of conduct which states: « Independent national human rights institutions are usually ideally placed to interact with, and facilitate, the work of mandate holders, as well as to contribute to the implementation of, and follow-up to, their recommendations. The roles of the two actors should be mutually reinforcing in various respects. »
- Morocco’s announcement of its openness to the Special Procedures of the Human Rights Council was certainly an intelligent reaction on the part of Morocco in the context of pressure regarding the imperative of an international human rights monitoring mechanism in the Moroccan Sahara. However, the Polisario, with the support of Algeria, will resort to all procedures to challenge Morocco’s sovereignty over the Sahara and would even request a meeting of certain Special Procedures visiting Morocco with interested members of the Security Council under the Arria formula, as provided for in paragraph 89 of the Code of Conduct which states: « One of the most important forms of follow-up consists of interactive dialogue between mandate holders who are presenting their reports and the HRC. Around one third of the mandate holders also report to the GA, and some have informally briefed the Security Council. »
- Morocco has an interest in responding to communications, defining the terms of reference for visits, and bilateralizing the dispute over the Sahara to counter the long-sought objective by Algeria, for years, of placing the question of the Sahara on the Council’s agenda as a human rights situation. This strategy will be reinforced when Morocco becomes a member of the HRC as it would be able to vote and further sensitize its friends. Hence the importance of considering presenting our candidacy upon our election to the Security Council.