Western Sahara, Israel, and the Death of International Law

The United States announced last week that it now recognizes Moroccan sovereignty over Western Sahara. This recognition is part of the quid pro quo for Moroccan consent to a new peace agreement with Israel. American legitimation of Morocco’s longstanding occupation of most of Western Sahara marks a turning point in the decades-long conflict over the territory. It also marks a deadly assault on international law, after nearly two decades of such assaults by the most powerful countries in the world, the U.S., Russia, and China.  Recognition of Moroccan annexation directly attacks three cardinal principles of modern international law: self-determination, the prohibition on the use of force, and the prohibition on acquiring territory through the use of force. Its linkage to an agreement with Israel also highlights its ominous portents for the Israeli-Palestinian conflict.

While the Western Sahara story has become very complex, one can easily state the basic facts. In 1884, Spain proclaimed a colonial “protectorate” over Western Sahara and some coastal areas of Morocco. In 1912, France established its own colonial protectorate over the lion’s share of Morocco. Morocco became independent in 1956, while Western Sahara remained under Spanish rule until 1975. As Spain prepared to withdraw from the territory, both Morocco and Mauritania (another former French colony) claimed sovereignty over the territory. Both based their claims on their supposed pre-colonial links to Western Sahara.

In October 1975, the International Court of Justice issued an exhaustive legal opinion on Western Sahara at the request of the U.N. General Assembly. The Court found that neither Morocco nor Mauritania had any legal claim to sovereignty over the territory. The Court acknowledged a variety of cultural, ethnic, and even political links between Western Sahara and neighboring countries, including Algeria as well as Morocco and Mauritania. However, none of those links satisfied the criteria for sovereignty. The Court concluded, therefore, that the people of Western Sahara should determine its future political identity by means of a referendum. This kind of referendum is the purest way to realize the ideal of the “self-determination of peoples,” a cardinal rule of international law since at least 1960. It was clear to all that the Sahrawis would choose independence.

The International Court’s decision conformed to the basic principles governing decolonization in the post-World War II era. In nearly every case, this decolonization resulted in the independence of territories as defined by colonial borders. While some in the Third World objected to this ratification of the often artificial colonial demarcations, the leaders of almost all the newly independent countries embraced this principle. African leaders, in particular, fiercely endorsed it, due to their fears that redrawing the map would destabilize the continent. In the case of Western Sahara, this principle would mandate that the territory become independent within the borders that had separated it from the neighboring French colonies.

Despite the Court’s decision, Morocco and Mauritania immediately set out to divide the territory between them. Less than a month after the Court’s decision, Morocco marched 350,000 settlers into Western Sahara – an attempt to skew the results of any referendum in the short term and permanently change the demographic balance in the long term. Moroccan and Mauritanian troops entered the territory to carve out their respective claims. However, POLISARIO, the Sahrawi independence movement, fought the Moroccan and Mauritanian forces, against great odds. Mauritania withdrew from the territory in 1979 in the face of this resistance. Morocco, by contrast, extended its control over most of Western Sahara.

In 1980, Morocco began building a wall, known as “the Berm,” to separate the area of Western Sahara under its control from the much smaller area controlled by POLISARIO. In the decades since the initiation of this conflict, the territory has seen unspeakable human suffering brought on by war, occupation, and a massive refugee exodus. A series of failed peace plans and toothless U.N. proclamations have failed to dislodge Morocco from its occupation of approximately 75-80% of Western Sahara.

The conflict between Morocco and the Sahrawi people is different in innumerable ways from the conflict between Israel and the Palestinian people. Yet, last week’s news is not the first time the two conflicts have been linked in public awareness. The Sahrawis and Palestinians are both relatively powerless peoples engaged in long struggles for independence against very powerful states. Both struggles have attracted much attention from international organizations and global activists. Both have been the object of ineffectual U.N. resolutions and decisions by the International Court of Justice. In both cases, vast numbers of settlers have entered occupied territory in order to cement the occupation. Morocco and Israel have both built walls in occupied territory, walls aimed not merely at security but also at the consolidation of territorial claims. (The International Court of Justice condemned the illegality of the Israeli wall in the West Bank in 2004.) Finally, despite the fact that neither the Sahrawis nor the Palestinians have previously had their own sovereign state, the conditions of today’s world make it possible for them to secure their safety and culture without statehood.

Even more clearly from an international law perspective, both Morocco and Israel are seeking to annex territory in a flagrantly illegal manner. Annexation of territories occupied by force violates one of the most fundamental principles of contemporary international law. The Moroccan occupation of Western Sahara, with annexation openly proclaimed as its goal, was illegal from its inception. The Israeli case is a bit more complex. A plausible argument can be made that Israel’s occupation of the West Bank in 1967 began as an act of legitimate self-defense. The legality of such an an occupation, however, diminishes when it lasts far beyond the occasion for its establishment – in Israel’s case, for 53 years. Moreover, the establishment of civilian settlements in occupied territories violates the law governing such occupations. Despite Israeli protestations, the International Court and the vast majority of international legal experts have firmly condemned such settlements as illegal. And annexation certainly has no plausible legal justification.

American recognition of Moroccan sovereignty over Western Sahara, like the recent U.S. declaration that it no longer considers Israeli settlements to be illegal, thus attacks the bedrock of international law. Such actions invite strong countries to invade and annex neighboring territories. This “might makes right” position undoes the central aspiration of international jurists over the past century: a world in which disputes, particularly over territory, are settled by negotiation, not brute force. Perhaps it is premature to hold a requiem for international law, but it is certainly in the ICU – and the powers-that-be are disconnecting all life-support.

About the Author
Nathaniel Berman is the Rahel Varnhagen Professor in Brown University's Religious Studies Department. He is the author of 'Passion and Ambivalence: Colonialism, Nationalism, and International Law' (Brill 2012) and 'Divine and Demonic in the Poetic Mythology of the Zohar: the "Other Side of Kabbalah' (Brill 2018).
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