Unilateral Declaration by Polisario under API accepted by Swiss Federal Council

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

On 21 June 2015, the Polisario Front 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.

Conformément à l’article 96.3 du Protocole additionnel aux Conventions de Genève du 12 août 1949 relatif à la protection des victimes des conflits armés internationaux (Protocole I) du 8 juin 1977, le Front POLISARIO, en tant qu’autorité représentant le peuple du Sahara Occidental luttant pour son droit à disposer de lui-même, déclare s’engager à appliquer les Conventions de Genève de 1949 et le Protocole I dans le conflit l’opposant au Royaume du Maroc.» This declaration has, as of 23 June 2015, the effects mentioned in Article 96, paragraph 3, of Protocol I.

The Polisario Front addressed its unilateral declaration to the Swiss Federal Council which is the depositary of the Conventions.

What is remarkable about this development, is not that the Polisario Front made its declaration, but that it has been accepted by the Swiss Federal Council and notified to the governments of State parties. Indeed, notably, it is the very first time that the Swiss Federal Council has accepted such a declaration by a national liberation movement and a non State entity under international law.

Long history of invocation of Article 96(3)

In making the unilateral declaration, the Polisario Front cited Article 96(3) of Additional Protocol I of the Geneva Conventions which allows the authority representing a people engaged in an armed conflict of the sort referred to in Article 1(4) of the Additional Protocol (i.e. armed conflicts in which the principle of self-determination is at stake) to undertake to apply the Conventions and Additional Protocol I by means of a declaration to the depository (i.e. the Swiss government).

The Polisario Front is by no means the first national liberation movements to invoke Article 96(3). Since Additional Protocol I was adopted in 1977, many high-profile national liberation movements have formally declared their adherence to the Geneva Conventions citing Article 96(3). These have included the African National Congress, South West African People’s Organisation, National Democratic Front of the Philippines and UNITA (see Ewumbue-Monono here p907-9 and here p2-4 for details of this and also see Sivakmaran, p118 and Higgins, here).

However, in all these situations, the relevant State was not a party to Additional Protocol I. This forced the Swiss government to reject any declaration pursuant to Article 96(3), as the first sentence of Article 96(3) requires an “authority representing a people” to be “engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4” [emphasis added].

Indeed, it is noteworthy that the Polisario has also made declarations in the past that it will respect the Geneva Conventions in its conflict with Morocco. In 1975, the Polisario Front declared its intention to respect the rules in the Geneva Conventions (see ICRC Annual Report 1975, p8). In July 1989, the Polisario Front expressed its intent to accede in the future to the four Geneva Conventions by means of a letter to the Swiss Federal Council (Talmon, p122). Yet, only now, after Morocco ratified Additional Protocol I in June 2011, were the necessary requirements for Article 96(3) fulfilled. Namely, Polisario Front had become an “authority representing a people engaged against a High Contracting Party [emphasis added]”.

The Swiss Federal Council’s decision to accept the unilateral declaration of the Polisario Front was likely also influenced by the that numerous international institutions that have recognised the right of the people of Western Sahara to self-determination (see here and here for a history of the conflict).

In its 1975 advisory opinion, the ICJ clearly rejected the notion that t here was any “tie of territorial sovereignty” between the Western Sahara and either Morocco or Mauritania. Although it found that there were some ‘legal ties’ between these entities, the ICJ concluded that they did not “affect the application of [General Assembly] resolution 1545(XV) in the decolonization of the Western Sahara and, in particular, the principle of self determination”.

Legal effects of the declaration

What is the significance of the unilateral declaration and its acceptance? From a legal perspective, the first point to make is that the Polisario Front has not acceded to the Geneva Conventions or Additional Protocol I and nor has it become a High Contracting Party to either.  In other words, the fact that the Swiss Federal Council has accepted the Polisario Front’s declaration does not mean that it has been recognised as a ‘State’.

Indeed, the legal effects of the Swiss Federal Council having accepted the unilateral declaration and notified to States Parties are limited to those written in Article 96(3) of API, namely:-

• The Conventions and API are brought into force for the Polisario Front as a party to the conflict with immediate effect;
• The Polisario Front assumes the same rights and obligations as those assumed by Morocco in respect to the Geneva Conventions and API (NB: Morocco is a party to both); and
• The Geneva Conventions and this Protocol are equally binding upon all Parties to the conflict.

In other words, the Polisario Front is now recognised to be bound to the Geneva Conventions and Additional Protocol I in its relations with Morocco and vice versa.

Practical effects

In practical terms, the acceptance of the unilateral declaration by the Polisario Front will likely have more effects for Morocco, than for the Polisario Front. This stems from the fact that the Polisario Front has professed to apply the rules of the Geneva Conventions to the conflict for many years already and is generally thought to have released the last of its Moroccan prisoners of war.

In contrast, Morocco has historically refused to recognise that it is bound to the Geneva Conventions and Additional Protocol I vis-à-vis the Polisario Front. Indeed, in the early nineties Morocco refused to accept POWs returned from Western Sahara. Reportedly the Moroccan government feared that accepting the return of these prisoners would mean acknowledging a state of armed conflict between the two parties. There has also been an long-lasting struggle to obtain information from the Moroccan authorities about the Sahrawis who the Polisario allege ‘disappeared’ or were captured during the armed conflict with Morocco. Morocco will now have obligations regarding the search for missing persons and the provision of information under Article 33 of Additional Protocol I.

Interestingly, one of the Polisario’s immediate aim in making the unilateral declaration seems to be to advocate for an end of the commercial exploitation of Western Sahara by private companies with Moroccan authorisation. Since it made its declaration, the Polisario has made an ‘appeal’ to all companies operating in Western Sahara to cease dealing with Morocco about their contracts.  Agreements made between companies and the Moroccan government governing exploitation of Western Sahara’s natural resources has been a continued matter of contention in recent years (see here and here). Indeed, the UN Security Council has long been advised that such commercial contracts are in violation of the principles of law applicable to mineral resource activities in Non-Self-Governing Territories, unless they are conducted for the benefit of the peoples in those territories, are conducted on their behalf or in consultation with their representatives.

Conclusion

Whether or not the Swiss Federal Council’s acceptance of the Polisario’s declaration will make a difference on key protection issues such as the rights of the disappeared or the exploitation of the natural resources in Western Sahara is yet to be seen. On the first issue, there are signs that Morocco is in a cooperative mood having recently signed a headquarters agreement with the ICRC, which puts its relations with the ICRC on a formal footing. It will also be interesting to see whether the Swiss Federal Council’s approach in this case encourages other armed groups with an arguable ‘national liberation movement’ status to submit further unilateral declarations under Additional Protocol I, now that they know that their acceptance is more than theoretically possible.