The occupation of Western Sahara by Morocco is an outstanding case of African colonialism which needs a just solution.
The Moroccan military invaded the territory on October 31, 1975, despite a clear issued by the International Court of Justice a few days earlier, on October 16.
On November 6, Morocco organised what it called a 鈥淕reen March鈥 to officially invade the North of Western Sahara, moving 350,000 Moroccan settlers to the territory in complicity with Spain, the colonial power in the territory since 1884.
The United Nations Security Council immediately called on Morocco to withdraw from the territory, but the Moroccan King was strongly backed by France and other Western powers.
The UN Security Council issued three successive resolutions all calling on Morocco to 鈥淧ut an end forthwith to the declared march into Western Sahara鈥.
It was obvious that Morocco was violating not only the principles, such as abstention from 鈥渢he threat or use of force against the territorial integrity or political independence of any state鈥 (Article 2, Paragraph 4), but also the principle of 鈥渞espect of borders existing on achievement of independence鈥 (Article 4).
This is why both organisations adopted the same position: the rejection of the Moroccan colonial fait accompli, and the insistence on the need to decolonise Western Sahara through a genuine process of self-determination under the auspices of the UN and AU.
Basic facts
Many analyses call for a peaceful and mutually acceptable resolution to this conflict, but fall short of proposing solutions that meet the conditions for a just solution.
A 鈥渏ust鈥 solution can never be achieved if the proposals put on the table violate international law.
Unfortunately this is what many seem to suggest, proposing 鈥渟olutions鈥 that violate the UN Charter, the AU Constitutive Act and worse, some of the main pillars of modern international law, mainly the right of people to self-determination, and the sovereignty of people over their land and resources.
Other proposals, such as the Moroccan 鈥 is simply an attempt to normalise the illegal occupation.
The UN has never recognised Moroccan sovereignty of any sort over the territory of Western Sahara, and identified Morocco as an occupying force in General Assembly .
According to international law an occupying power has an obligation to respect human rights, law and order, in addition to respecting relevant provisions of humanitarian law related to occupation.
An occupying power does not have the right to change the demographic, economic or political status of the occupied territory, and must respect the rules and principles of international law in its treatment of the people of the occupied land, according to the Geneva Convention and to the UN Charter among other instruments. In fact, it should not hinder the people鈥檚 right to self-determination and freedom.
The AU (formerly known as the Organisation of African Unity [OAU]) formally recognised the Saharawi Arab Democratic Republic in 1982 as the legitimate authority in Western Sahara. It did this after huge efforts to convince then-Moroccan King Hassan II to end this act of aggression against its neighbour.
Resolutions adopted by the AU Assembly in 2017 and 2018 sought to bring Morocco and the Saharawi Republic to negotiate under the auspices of the UN, without preconditions, so as to reach a solution that would end this conflict.
What norms for what solution?
The International Court of Justice found in 1975 that the native Sahrawi people are the only sovereign power in Western Sahara. Any proposed solution to this conflict of decolonisation must be decided and approved by the people of Western Sahara alone. No other country, organisation or entity is entitled to decide over the political future of the territory.
Further, the way of consulting the people of Western Sahara, as prescribed by UN General Assembly鈥檚 resolutions 1514 and 1541 and confirmed in more than 100 UN resolutions, can only be through a genuine and free vote in a referendum on self-determination supervised by the UN and the AU, in which the people have various choices including independence, free association with another entity or integration into an existing entity.
Any consultation that does not include independence will be in total of international law.
The UN Security Council鈥檚 various resolutions consider that any mutually acceptable solution to the conflict must be just, realistic and lasting.
A just solution must respect the law. The UN cannot allow Morocco to impose a colonial fait accompli in Western Sahara in violation of UN principles. Morocco is an occupying force, and as such it must simply withdraw from the territory to allow its people to control their land and resources.
Likewise, a lasting solution can only be a legal one that is approved by the colonised people. Once they decide the fate of their territory in a legitimate process, the decision they take will allow peace to be restored.聽
Depriving the Saharawi people from freely deciding over their future will likely push them to contest the results of any solution they interpret as imposed upon them. No one can predict the extent of the Saharawis鈥 reaction, or the extent of the instability and conflict it will unleash on the region, the continent and the world.
The solution to the conflict must also be 鈥渞ealistic鈥 according to various UN resolutions. We should read the facts on the ground properly, and ask the right questions: Does Morocco really control the territory? Can it legalise its illegal occupation? Are Morocco鈥檚 proposals realistic? If so, why has it not succeeded in convincing the Saharawis of them?
A 鈥渞ealistic鈥 solution can only be a solution that guarantees a lasting peace in the territory. Any solution that is not acceptable to the Saharawi people will never resolve the problem.
Morocco is still an occupying power on the ground. It can not normalise its occupation and is still facing huge challenges in the daily administration of the territory.
Morocco is deploying thousands of soldiers and police to control the territory, committing human rights abuses and violating all norms of the International Humanitarian law.
The Polisario Front is challenging Morocco鈥檚 illegal exploitation of the territory鈥檚 natural resources. Two landmark rulings by the European Union Court of Justice in 2016 and 2018 are the latest examples of the Polisario鈥檚 success.
A just solution
Resolution of the conflict in Western Sahara will open a new era in international relations. Any solution that violates the legitimate rights of the people of Western Sahara to self-determination and independence will only lead to more conflicts and deprive the whole of Africa of tremendous opportunities for development, integration and stability.
A fair solution would be to implement the principles of the UN Charter and AU Constitutive Act, calling on Morocco to immediately withdraw from the territory, respect its internationally recognised borders and allow the Saharawi Republic 鈥 a founding member of the AU 鈥 to exercise full control over all its territory.
The two states can then negotiate a detailed peace agreement taking into consideration their concerns and interests. North Africa will then be able to build its long awaited regional union, benefitting the AU, Europe and the world.
Another alternative is to go back to the 1991 OAU-UN Settlement Plan, signed and agreed upon by the two parties. The settlement plan is a big concession from the Saharawi Republic, but it ensures sovereignty of the people of Western Sahara over their land. It would give Morocco a chance to save face and escape the trap that has imprisoned its potential in the region for four decades.
Western Sahara is located in a region that is affected by terrorism, cross-border crime, drug dealing and migration. Failing to resolve the conflict peacefully and in respect of international law will likely plunge the North African region into turmoil.
Resolving the conflict will allow the North African and Sahel countries to intensify and coordinate efforts to find solutions to their problems. Such solutions include intensive programs of economic and social investment in the border zones that lack development and stronger coordination of security.
The violation of the right to self-determination would entail a dangerous precedent in international law. It would push the international community into an uncertain future where strong nations can violate the territorial integrity and freedom of weaker ones.
After 43 years of military occupation of Western Sahara, Morocco has failed to legalise its status, and has not convinced the occupied Saharawi people to accept this colonial fait accompli.
Worse still, the Moroccan government has problems administering its own internationally-recognised territory, evidenced by the political, economic and social problems suffered by the Moroccan people.
Resolving the conflict in Western Sahara according to International Law will ease Morocco from this burden and perhaps give its people a chance to resolve their own internal problems.
[Malainin Lakhal is a Saharawi writer and diplomat.]