ARMAMENT EXPORTS SPAIN - MOROCCO FEEDING THE CONFLICT IN WESTERN SAHARA
INDEX _______________________________________________________________________________________ 1. APPROACH ..………………….………………………..……………………………………………………….…….……… 1 2. BACKGROUND AND HISTORICAL CONTEXT OF THE QUESTION OF WESTERN SAHARA .…... 2 3. LEGAL SUPPORT OF THE COMPLAINT AND POST JUDICIAL APPEAL …………..……………………. 3 4. GOVERNMENT RESPONSES …………………………….………………………………………………………………. 6 5. GOVERNMENT COOPERATION WITH THE EXPANSION OF MILITARY INDUSTRY .……….……. 8 6. NO AGREEMENT AND CLAIM IN COURT ..………………………………………………………………………… 9 7. THE POLITICAL CONTRADICTIONS .…….……………………………………………………………………….….. 10 8. ANNEXE OF PRESS …..…………….……………………………………………………………………………………….. 11
International Association of Jurists for Western Sahara (IAJUWS), the Asturian Centre Human Rights for Western Sahara, the Aragón’s Observa‐ tory for Western Sahara and the Canary Associa‐ tion of Lawyers for Peace and Human Rights (JUPADEHU). The interest of these organizations is common, since they encompass the families of victims and missing Sahrawi’s, Human Rights and Peace Associations, as well as others interested in the question of Western Sahara.
ast April, several juridical and human rights organizations, filed the first complaint to the Spanish government, since the entry into force of Law 53/2007 of Foreign Trade of military and dual‐use, with the objective to stop arms exports from Spain to Morocco. Among the promoters of this initiative are in‐ cluded, the Association of Relatives of Prisoners and Disappeared Saharawi’s (AFAPREDESA), the Human Rights Association of Spain (APDHE), the
BACKGROUND AND HISTORICAL CONTEXT OF THE QUESTION OF WESTERN SAHARA _______________________________________________________________________________________
he fact that three quarters of the Western Sahara is occupied by Morocco for over than 35 years and I that Morocco did not in the past hesitate to use them against defense‐ less civilians fleeing through the desert, the white phosphorus and napalm weapons ,internationally prohibited ‐acts for which the court is investigat‐ ing the Moroccan authorities for an alleged crime of genocide against the Saharawi population, that should lead to automatically rejecting all applica‐ tions for arms exports to this country.
of El Aaiún, set up by the Sahrawi people to pro‐ test against the discrimination they face in their own land and against the plundering of their natural resources by the government of Morocco. In that attack, the different state security forces of Morocco, counting up the Army, have been involved. As a result of this operation, a fair num‐ ber of Saharawi civilian have been killed, these are yet to be determined on account of Moroc‐ co’s Government lack of transparence, and the isolation of the Saharawi territory from the me‐ dias and the international observers. Few days earlier, on October 24th, police have attacked the people on a vehicle that was entering the camp and killed a boy who was just 14 years old.
The current cessation of hostilities, resulting from the cease‐fire reached in 1991 for whose supervi‐ sion the MINURSO is the main responsible, can‐ not make us forget that the illegal police and military occupation of Western Sahara by Moroc‐ co still persists. However, from the declaration of the ceasefire in 1991 till today, the attacks of all kinds (house raids, arbitrary arrests, abductions and torture), by the Moroccan security forces against theSaharawi civilians are constant and this has been echoed by numerous reports of human rights associations.
Morocco violate Declaration on the Granting of Independence to Colonial Countries and Peoples (A / RES 1514 (XV), December 14, 1960) and all resolutions of the UN General Assembly which reaffirm the right of self determination of the Saharawi people since decades. Morocco does not withdraw from the Sahara, amongst other reasons, due to the domination and military superiority over a territory which does not belong to her.
Recently, such attacks have even worsened, due to the attack and dismantling, on November 8th, 2010, of the camp in Gdeim Izik, on the outskirts
SUPPORT OF THE COMPLAINT AND POST JUDICIAL APPEAL _______________________________________________________________________________________
he complaint was lodged, providing ex‐ tensive documentation therewith that proves a breach of Law 53/2007 and 2008/944/CFSP Common Position, these evi‐ dence includes, for instances, reports of Interna‐ tional Associations for the Defence of Human Rights such as Human Rights Watch and Interna‐ tional Amnesty, as well as the European Parlia‐ ment's report.
defense equipment, other material or products and dual‐use technologies can be used in actions that disturb the peace, stability and security in a global or regional level, may exacerbate latent tensions or conflicts, can be used in a manner contrary to respect due to the dignity inherent to the human beings, for purposes of internal re‐ pression or in situations of violation of human rights, are destined for countries with evidence of diversions of materials transferred or may in‐ fringe the international obligations assumed by Spain.
The fact that Spanish administration intends not to give reasons for this course of action, claiming the secrecy of JIMDDU (1) proceedings, will not prevent either Spanish Courts or Spanish society from knowing the truth behind, no doubt at all: Morocco should not be a recipient of Spanish weapons because she violates the conditions of the Act 53/2007.
In order to determine the existence of these rational suspicions, the reports on the transfers of military of defense and the final destine of these operations that are issued by international organizations in which Spain participate, reports from human rights bodies and other UN agencies, the information provided by Centers of investiga‐ tion of recognized prestige in the area of the development, disarmament and human rights, and the updated better practices described in the User's Guide Code of Conduct of the European Union Exports of arms, will be taken into ac‐ count".
(1) Junta Interministerial Reguladora del Comercio Exterior de Material de Defensa y de doble Uso.
The lack of transparency and secrecy can not be claimed an excuse in this case. Everyone knows Morocco's record on human rights, main factor, but not the only one which this initiative is based on.
SPANISH DOMESTIC LEGISLATION Spanish law sets out the criteria previously adopted in European Common Position (2008/944/CFSP), sanctioned by the Council of the European Union on December 8th, 2008, in which are settled "the common rules governing the control of exports of military technology and equipment.” This norm states: "The member states have the intention of strengthening the control policy of European Union exports con‐ cerning the technology and military equipments by means of this Common Position, which up‐
The application of Law 53/2007 on Foreign Trade of military and dual‐use, Act that establishes the requirements that must be met for arms exports to third countries, should prohibit such exports. From national law point of view, a mere reading of the criteria laid down in Article 8 of Law 53/2007 must serve the purpose of plainly de‐ termining that arms transfers should be rejected: "when there is reasonable suspicion that the
Criterion 8: Compatibility of the exports of the military technology or equipment with the tech‐ nical and economic capacity of the recipient country, taking into account the convenience that states should meet their legitimate security and defence needs with the least diversion of human and economic resources for armaments.
dates and replaces the Code of Conduct on Ex‐ port of Weapon adopted by the Council on 8 June 1998." In Article 2 of Common Position 2008/944/CFSP settling the criteria that must be respected in the control of exports of military technology and equipment:
And all this European regulation results from the exigency of human rights respect, enshrined in the Lisbon Treaty of 2007 (Treaty of the European Union). Thus, in the articles 2 and 3 of the Lisbon Treaty it is said:
Criterion 1: Respect for international obligations and commitments of Member States, in particu‐ lar the sanctions adopted by the UN Security Council or the European Union, agreements on non‐proliferation and other subjects, as well as other international obligations.
Article 2: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non‐discrimination, tolerance, justice, solidarity and equality between women and men prevail.’.
Criterion 2: Respect for human rights observance in the country of final destination as well as re‐ spect by that country of inter‐national humanita‐ rian law. Criterion 3: Internal situation of the final destina‐ tion country, so long internal strife or armed conflict may exist.
Article3: In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
Criterion 4: Regional peace, security and stability keeping. Criterion 5: National security of the Member States and of territories whose external relations are of responsibility of a Member State, as well as that of friendly and allied countries. Criterion 6: Behaviour of the purchaser country with regard to international community, specially concerning its attitude towards terrorism, the nature of its alliances and respect for interna‐ tional law.
On the other hand, from the point of view of the International Law, the resolutions of United Nations and International treaties demand that States as Spain react to violations of internation‐
Criterion 7: Existence of a risk that military tech‐ nology or equipment may be deviated within the buyer country or re‐exported under undesirable conditions.
international law. It is not only a passive specta‐ tor of the atrocities, but she does encourage and contribute to them when authorizing arms ex‐ ports from Spain to Morocco.
al law and of human rights committed by the Kingdom of Morocco in Western Sahara. The Declaration on Friendly Relations of the General Assembly (A / RES 2625 (XXV),October 24, 1970), concerning the right of peoples to self‐ determination claims in his fourth principle (para. 2) that "every State has the duty to pro‐ mote, through joint or separate action, the appli‐ cation of the principle of sovereign equality of rights and self‐determination of peoples [...] and to assist UN in fulfilling obligations entrusted to it by the Charter regarding the implementation of this principle [...]."
The Resolution 2625 of the UN General Assembly, October 24th, 1970, proclaiming the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations , also known as Friendly Relation Resolu‐ tion, estates that "all States should also refrain from organizing, assisting, fomenting, financing, instigating or tolerating any armed activities, subversive or terrorist activities aimed to change by the violence the regime of another State, and interfere in a civil war of another State."
The four Geneva Conventions of 1949 provides that "the High Contracting Parties undertake to respect and enforce them."
The Commission of International Law, organism dependent on United Nations and created for the codification of the International Law, has elabo‐ rated a Project of articles on the responsibility of State that, though it is not a binding norm, turns out to be interesting to be mentioned.
From these legal bodies it is to be drawn the conclusion that any State part thereof, taking or not part of a certain conflict, has the obligation to enforce the requirements imposed by the in‐ struments in question. Ultimately, Spain as part of such agreements not only undertakes to respect but also to "ensure the respect" of the Convention, what means that it has the duty to react, according to international law, to prevent imperative norms be infringed and to counter and mitigate consequences that may arise.
In Article 41 of the referred draft it is affirmed that "States should cooperate to end by lawful means, any serious violation of a peremptory norm of international law. According above emntioned project, the State providing aid or assistance is internationally responsible if it is aware that it is violating inter‐ national law and that the assistance is intended to enable such violations.
Conversely did not the Spanish government even issue statements condemning the violations of
GOVERNMENT RESPONSES _______________________________________________________________________________________
certificates of final destination signed by the authorities of the Kingdom ofMorocco, so as to ensure that destination, user and final use of exported material are of those allowed by the Spanish government and re‐exportation or un‐ wanted use are prevented." While no one does know the content of these "strict" documents, because of the secrecy veil surrounding these transactions, we must remem‐ ber the evaluation of the distinguished British jurist, Geoffrey Robertson, who has worked as an appellate judge in the UN Sierra Leone, he wrote in his book "Crimes Against Humanity, The strug‐ gle for a global justice”:
The following day, June 8th, in his appearance before the Commission of Defense of the Con‐ gress, Ms. Iranzo defended the sale of defense material to Morocco on the ground that these exports neither do violate Human rights nor do they feed conflicts in process and by estimating that the products would not be used with pur‐ poses of internal repression, adding that "they have never been destined to grow the conflict that the country has opened with the Sahara.
That, “this certification is not even worth the paper in wich is written (or in witch is sent by fax): Is not legally binding in the importing coun‐ try and only sought to protect from the criticism the Exporting State when their weapons appear in the wrong hands or in the wrong places."
We do not share the confidence and optimism exhibited in the Spanish Government's state‐ ments about the improper use of this material. These statements are not minimally justified and are contradicted by numerous reports from in‐ ternational human rights organizations (Human Rights Watch, Amnesty International, ...) and international(European Parliament report in 2008, ....) that demonstrate exactly the opposite.
• LACK OF TRANSPARENCY, OPACITY AND CONFIDENTIALITY.
The testimonies that we still receive every day from the occupied territories of Western Sahara confirm that the violation of human rights by the Moroccan authoritiesis is constant.
The Secretary of State of Trade declined to dis‐ play the information requested, but affirmed that the government analyzed case by case the opera‐ tions that were conducted in the Kingdom of Morocco. By hiding behind the secrecy of certain documents it is hindered for the Spanish society to know which the mechanisms of control used by the Spanish authorities to prevent the un‐ wanted use are.
The Secretary of Trade, justify herself by having "demanded strict control documents, concretely
Iranzo also said, based on Law 30/1992 of No‐ vember 26th on the Legal Regime of Public Ad‐
2008 and 2009 because " The minutes of the Joint Board of Foreign Trade Regulatory Defense and Dual‐Use have been declared secret under the Act 9 / 1968, April 5th. On official secrets”, as she explained in its response.secretaria
ministrations and Common Administrative Proce‐ dure (LRJPAC), that "it is not allowed to facilitate (...)access " to the associations for the adminis‐ trative files relating to authorization of sales and transfers of arms to Morocco for the years 2007,
Assembly celebrated in the “Dignity Camp” Gdeim Izik, El Aaiún ‐ Western Sahara
GOVERNMENT COOPERATION WITH THE EXPANSION OF MILITARY INDUSTRY _______________________________________________________________________________________
support the export, CIDIS, within Isdefe public company."
ast May 9, “El Pais”, Section Business & sectors, published an interview with Con‐ stantino Mendez, Secretary of State for Defence, who, for the Spanish industry, stated that "its export portfolio ‐40% of total produc‐ tion‐ must grow in order to survive. .... We are committed to support and promote its interna‐ tionalization "...." It’s true, "he admits,"we have been slow to become aware of the importance of having an export policy.
Not even within a month from the above remarks when in the same newspaper, a day before the hearing of the Secretary of State for Trade before the Congress to report statistics on exports of defense equipment, it was announced that Spain has risen by 33 % its arms sales from 2008, which "means that, for the first time, one of every 10 euros of Spanish products sold abroad is for weapons and military equipment.”
This process must be supported by the Spain brand, which is very relyable: we are a safe coun‐ try, serving customers well. But we must accom‐ pany the firms when dealing wiht other governments, something that other countries do naturally, so we have created a consulting to
Thus, under the umbrella of the crisis, which, apparently, everything fits, but only the moral scruples, is to make Spain one of the leading merchants of products intended to produce death.
Military vehicles of the moroccan army during the siege to the camp
NO AGREEMENT AND CLAIM IN COURT _______________________________________________________________________________________
The judicial procedure is undergoing initial phase, having sendt the litigant Administration the case file, though incomplete, reason for the Court to accept the request for complementary claims submitted by the claimants.
he lack of compliance with the administra‐ tive decision has resulted in the lodging of an administrative‐review before Na‐ tional Courts. The claim has been accepted for consideration, in turn for 4th Section of Adminis‐ trative Tribunal, ordinary procedure Nº 285/2010.
THE POLITICAL CONTRADICTIONS _______________________________________________________________________________________
Saharawi people. Neither is it to be understood how it even could be claimed to be comptible with the Spanish Congress resolution, of Decem‐ ber 2nd, which have condemned the violent incidents that occurred during the eviction of “Agdaym Izik” the Saharawi camp, by the security forces of Morocco and have spread to the city of El Aaiún, and then calls for the continuation of informal talks between Morocco and the Frente Polisario.
rom a political point of view, it is not un‐ derstandable how it can be made compat‐ ible the arms sales to Morocco with the contents of the European Parliament resolution of November 25th, 2010, which has condemned the violent incidents caused by the Moroccan intervention in El Aaiún and have supported United Nations negotiations between Rabat and the Polisario Front over Western Sahara in order to find a just, durable and mutually acceptable solution to ensure the self‐determination for the
State of the camp after the violent eviction realized by Morocco
ANNEXE OF PRESS _______________________________________________________________________________________