Right of reply: Mutunga "clarifications" on Frente Polisario untrue

Says calling Frente Polisario as an "armed terrorist group" is mendacious propaganda

In Summary
  • This is part of the ongoing campaign carried out by the Moroccan occupying state in Europe and elsewhere using misinformation to divert attention from the well-documented violations.
  • The Representatives of the Frente POLISARIO at the United Nations are duly accredited by the United Nations to discharge their diplomatic mission.
Former Saharawi Ambassador to Kenya H.E. Bah El Mad
Former Saharawi Ambassador to Kenya H.E. Bah El Mad

The Embassy of the Sahrawi Republic to Kenya has taken note with great indignation, but not of surprise, of the "clarifications", a string of lies about the Frente POLISARIO, as the legitimate, sole and internationally recognised representative of the Sahrawi people, published by the Embassy of the Kingdom of Morocco in Kenya, on February 1, 2023, on the website of the daily newspaper "The Star", regarding the "opinion article" entitled "People-people solidarities for liberation PanAfricanism must continue", published on January 21st, 2023, on the website of the aforementioned daily newspaper, by Honourable Dr Willy Mutunga, former Chief Justice of the Republic of Kenya.

Within the framework of the right to reply, the Embassy of Sahrawi Republic to Kenya would like to refute with consistent arguments all the slander and malicious libel contained in the so-called "clarifications" of the Embassy of the occupying state of Morocco, which rehashed its characteristically mendacious propaganda by describing the Frente POLISARIO as an "armed terrorist group" that was “ created by the Kadhafi Regime of Libya”( among other niceties).

This is part of the ongoing campaign carried out by the Moroccan occupying state in Europe and elsewhere using misinformation as a primary tool to divert attention from the well-documented violations perpetrated by the Moroccan security forces against the Sahrawi population in the Territories of Western Sahara under Morocco’s illegal occupation.

 To set the record straight, the Embassy of the Sahrawi Republic to Kenya would like to address the allegations contained in the above-mentioned “clarifications” and, to this end, it will use reliable sources drawn primarily from the United Nations and other well-known international organisations due to the scarce references to United Nations reports are made in a selective and distorted manner by the Moroccan Embassy.

In line with the above, the Embassy of the Sahrawi Republic to Kenya would like to clarify to the readers of the daily newspaper "The Star" that the following fundamental facts should be born in mind since they frame the question of Western Sahara, the last colony in Africa, in its legal and political aspects, and therefore the context in which a just, viable and lasting solution to the conflict of Western Sahara could be achieved:

The Frente POLISARIO is an internationally recognised national liberation movement that was established by the Sahrawi people on 10 May 1973 to fight against the Spanish colonial presence in Western Sahara.

In this regard, it is worth recalling the conclusions of the Report of the United Nations Visiting Mission to Western Sahara (the then Spanish Sáhara) and the neighbouring countries in May-June 1975 (A/10023/Add.5).

Today more than ever, these undeniable facts are becoming more consolidated as the people of Western Sahara, under the leadership of the Frente POLISARIO, continue their recognised legitimate struggle (General Assembly Res. A/RES/34/37, among others) against Morocco's illegal occupation of its land, which has been going on since 31 October 1975.

The occupying state of Morocco knows very well, as everyone else dose, that it was the Frente POLISARIO that bravely fought it for 16 years and eventually forced it to accept the UN-OAU Settlement Plan providing for the 1991 ceasefire and for the referendum on self-determination.

The Moroccan occupying state cannot deny that the Frente POLISARIO captured more than 3000 Moroccan prisoners of war (POWs) who where released after the ceasefire in coordination with the International Committee of the Red Cross (ICRC).

The Frente POLISARIO has been represented at the United Nations since the 1970s .

It was in this context that, on 22 June 1979, the UN Security Council (S/PV/ 2153) invited the Representative of the Frente POLISARIO to address the Council on the question of Western Sahara during the meeting that was requested by the occupying state of Morocco that was incurring heavy losses on the battlefield at the time.

The Representatives of the Frente POLISARIO at the United Nations are duly accredited by the United Nations to discharge their diplomatic mission in accordance with the established procedures of the Organisation.

They have their own UN accreditations that give them full access to the UN Headquarters to attend meetings on Western Sahara and to meet with UN senior officials, including the Secretary-General.

On 21 June 2015, the Frente POLISARIO made the following unilateral declaration on behalf of the people of Western Sahara that it undertook to apply the 1949 Geneva Conventions and Additional Protocol I to the conflict between it and the Kingdom of Morocco.

 The Frente POLISARIO addressed its declaration to the Swiss Federal Council which is the depositary of the Conventions.

Switzerland, in its capacity as the depositary state of the Geneva Conventions and the API, notified all the Sates Parties, confirming that the Conventions and API are applicable to this situation.

This constitutes the first time that a national liberation movement’s declaration under Article 96 has been accepted by the depositary state.

 Since the adhesion of the Frente POLISARIO to the 1949 Geneva Convention on 21 June 2015, there is no doubt that international humanitarian law applies to the illegal military occupation of Western Sahara by the Moroccan occupying state.

In its legal opinion, the African Union also considers Western Sahara an occupied territory (S/2015/786, § 34, § 42).

In its decision, the Court of Justice of the European Union (CJEU), 21 December 2021, quotes article 1 of the constituting document of the Frente POLISARIO (§ 21).

According to this article, the Polisario Front is a national liberation movement, the fruit of the long resistance of the Sahrawi people against the various forms of foreign occupation, created on 10 May 1973.

 Moreover, the Court mentions the peace agreement concluded between Mauritania and the Frente POLISARIO (§ 34).

Finally, it refers twice to the UNGA Resolution 34/37 that recognises the Frente POLISARIO as “the representative of the people of Western Sahara” (see § 35; § 105).

These findings of the CJEU are consistent with the opinion of the Advocate General delivered in September 2016 that describes the Frente POLISARIO as a National Liberation Movement with an international legal personality.

 According to the press release No 166/21 issued 29th by the General Court of the European on 29th September, 2021 (referring to Judgments in Case T-279/19 and in Joined Cases T-344/19 and T-356/19 Frente POLISARIO v Council) “The General Court annuls Council decisions concerning, first, the agreement between the European Union and Morocco amending the tariff preferences granted by the European Union to products of Moroccan origin and, second, the Sustainable Fisheries Partnership Agreement.”

 The EU Court ruled the Moroccan occupying state country did not have the consent of the people of Western Sahara required for the now-canceled fisheries and agricultural treaties.

Both of the Frente POLISARIO and the Moroccan occupying state are the two parties of the UN led peace process and are requested to engage in direct negotiations in order to reach a fair and lasting solution to this long-running conflict which provides self determination for the people of Western Sahara, the last colony in Africa.

In adhering to the African Union on 31st January 2017, after signing and ratifying, without any reservation, the AU Constitutive Act, the Moroccan occupying state publicly recognises its adherence to and compliance with AU fundamental principles including respect for the borders existing on achievement of independence (b; article 4), the Kingdom of Morocco has implicitly admitted that Western Sahara is not part of the Kingdom and recognised the existence of the Sahrawi Arab Democratic Republic, a founder-member of the African Union.

Since 13 November 2020, following the documented breach by the occupying state of Morocco of the ceasefire, it is the Frente POLISARIO whose liberation army is resisting the Moroccan new act of aggression.

Regarding the accusation that the Frente POLISARIO was created created by the Kadhafi Regime of Libya.this is an insult to everyones intelligence because Libyan official themselves have publicly denied this accusation.

These are established facts that the Moroccan occupying state cannot deny.

Western Sahara is still considered by the United Nations as a Non-Self-Governing Territory pending decolonisation. It has never been part of Morocco that continues to occupy illegally parts of the Territory since 31 October 1975.

In its historic advisory opinion on Western Sahara, issued on 16 October 1975, the International Court of Justice clearly established that there never existed any tie of territorial sovereignty between Western Sahara and Morocco or Mauritania and that the principle of self-determination should be implemented through the free and genuine expression of the will of the people of the Territory.

In 2002, the UN Under-Secretary for legal Affairs, Hans Corell, issued an advisory opinion at the request of the UN Security Council in which he reaffirmed unequivocally that Morocco does not exercise any sovereignty or administering power over Western Sahara.

The United Nations, the Organisation of African Unity (now the African Union) and the international community as a whole have never approved Morocco’s occupation of Western Sahara or recognised the legality of its forceful annexation of the Territory.

Furthermore, consistent with its doctrine of not recognising as legal any territorial acquisition resulting from the use of force, the UN General Assembly has clearly described Morocco’s presence in Western Sahara as an act of occupation by force (res. 34/37 of 21 November 1979 and res. 35/19 of 11 November 1980). As an occupying power, Morocco thus has no right whatsoever to deal with third parties concerning the Non-Self-Governing Territory of Western Sahara.

Together with its obstructionist attitude towards the UN-led peace process, Morocco continues to violate systematically human rights and international humanitarian law in the territories of Western Sahara under its illegal occupation.

The human rights violations involve the disappearance of Sahrawi human rights activists, torture of prisoners of conscience, arbitrary detention, police brutality, intimidation and extrajudicial executions, as was the case of the Sahrawi political prisoner, Hassana El-Wali, who was killed in the occupied city of Dajla in September 2014. All these human rights violations have been documented and made public by human rights organisations such as Amnesty International, Human Rights Watch, the Robert F. Kennedy Centre for Justice and Human Rights and the Office of the UN High Commissioner for Human Rights (OHCHR), among others.

 Currently the entire occupied-Western Sahara is put under a military siege and a total media blackout, whilst Morocco continues to ban international observers and media from entering the Territory.

Consequently, Morocco rejects the application of International humanitarian law to that territory despite its being part of the Geneva Conventions. Anyone referring to Moroccan occupation is subject to prosecution and retaliatory measures including torture, as regularly exposed by international NGOs as well as many UN agencies.

All international reports on the worlds drug producers confirm that Morocco is the largest producer and exporter of cannabis worldwide.

The Frente POLISARIO has asserted, in a letter addressed to UN Security Council, that the involvement of the Moroccan army in drug and human trafficking poses a direct threat to regional and international peace and security.

 The letter follows the operations carried out by units of the Sahrawi People's Liberation Army (SPLA) as part of its fight against drug trafficking and organised crime, under which Moroccan drugs and weapons were seized, according to a statement issued by the Sahrawi Ministry of National Defence.

In similar letter, the Frente POLISARIO called on the UN Security Council to hold Morocco accountable for its well-documented role in drug trafficking and other destabilising actions that are threatening security and stability of its neighbours and the whole region.

On the issue of security and stability in the region, all official and specialised international bodies continue to emphasise that Morocco's continued export of cannabis production, and the fact that it is a transit country for drugs from South America are the main causes of the growth of cross-border crime in the North West Africa and Sahel region. Thousands of Moroccans are the primary sources that feed, finance and strengthen terrorist groups because of poverty, ignorance and deprivation suffered by Moroccan people.

In addition to what has been revealed by intelligence agencies, several international think tanks, including the Washington Centre for Near East Policy in its 2017 report, have highlighted that the fact that terrorist attacks in London, Paris, Barcelona, Brussels, and Finland were almost exclusively carried out by terrorists of Moroccan origin demonstrates that Morocco has become a breeding ground for terrorismand a springboardfor terrorist attacks in Europe.

 This fact was confirmed by Jeune Afrique ( a French-language weekly news magazine) itself in an article appearing in August 2017 entitled “Born in Morocco” in reference to the fact that the largest number of terrorist acts in Europe were exclusively carried out by Moroccans.

Its pathetic, but not surprising, to use the humanitarian aid for Sahrawi refugees for political purposes by the Moroccan occupying state.

 As it is well known, since 2003 the European Commission and its partners have intensified its efforts to monitoring and follow up to the humanitarian aid delivered to the Sahrawi refugees.

ECHO, NGOs, and international organisations UN agencies (UNHCR, WFP, and UNICEF) confirm that humanitarian aid arrival and distribution to beneficiaries is carried out in a transparent manner, with the full support from the Sahrawi institutions.

The Sahrawi Arab Democratic Republic (SADR) called on the African Union (AU) and its members to take urgent measures to bring African states to reconsider their grave decisions of opening "consulates" in the occupied Sahrawi territories.

 According to a press release issued by the Sahrawi Foreign Ministry the opening of “consulates” in the occupied territories of Western Sahara is a "dangerous act which violates all the principles leading to the creation of the Organisation of African Unity (OAU), in particular the intangibility of the borders existing at the time of independence in accordance with Article 4 of the Constitutive Act of the African Union,".

 In line with the above and according to the Communiqué adopted by the Peace and Security Council of the African Union (AU), at the 984th meeting held on March 2021, "...further calls on the UN Secretary General to request the United Nations Legal Counsel to provide a legal opinion on the opening of consulates in the non-self-governing territory of Western Sahara" (parr. 5, PSC/AHG/COMM.2 CMLXXXIV).

 The Moroccan government continues to illegally exploit Western Sahara’s natural resources, which include large phosphate deposits in the north, potential oil and gas reserves, and some of Africa’s richest fishing grounds off the Atlantic coast to the west.

Morocco’s long record of exploitation includes entering into fisheries agreements with the European Union that have enabled foreign vessels to gain access to fish in the territorial water of Western Sahara. Instead of demanding that Morocco adheres to international law, the EU is complicit in this exploitation.

 As recognised Non-Self-Governing-Territory, the people of Western Sahara have the sovereign rights to control their natural resources, including as affirmed by the UN Legal Opinion of the UN Legal Counsel, Hans Corell dated 20th January 2002, given at the request of the UN Security Council, which states that “if further exploration and exploitation activities were to proceed in disregard of the interest and wished of the people of Western Sahara, they would be in violation of the principles of international law applicable to mineral resource activities in Non-Self-Governing Territories,” (S/ 2002/ 161. Para.25).

 The European Court of Justice issued a ruling, on 27th February 2018, concerning Western Sahara. The ruling, with reference to the EU-Morocco Fisheries Partnership Agreement (2006), establishes unequivocally that Western Sahara does not form part of Morocco, and in parallel that any agreement concluded between the EU and the Kingdom of Morocco cannot be applicable to the territory of Western Sahara and its adjacent waters.

The ruling built upon the Court’s previous judgment on 21st December 2016; which established a legal requirement for the consent of the Sahrawi people to be obtained for Western Sahara to be party to any agreement between the EU and Morocco; and reaffirmed the principles of international law applicable to Western Sahara as a Non-Self-Governing Territory and its natural resources.

The ruling leaves no doubt that all agreements concluded between Morocco and third parties would be in violation of the principle of international law, including the right to self-determination if they were to include Western Sahara and its adjacent waters.

The ongoing failure to comply with the ECJ rulings threatens to undermine the EU’s credibility – and its commitment to upholding the rule of law.

Unfortunately, as with previous cases – we have seen no serious signal of intent by the EU and its Member States to take the necessary measures to ensure all present and future agreements with Morocco do not include Western Sahara and its territorial waters.

The legitimate representative of the Saharawi people, the Frente POLISARIO, has welcomed the judgment of the EU Court of Justice and is ready to engage in direct negotiations with the EU.

WATCH: The latest videos from the Star