ARMAMENT EXPORTS SPAIN - MOROCCO FEEDING THE CONFLICT IN WESTERN SAHARA

JANUARY 2011

INDEX _______________________________________________________________________________________ 1.APPROACH....... 1 2.BACKGROUNDANDHISTORICALCONTEXTOFTHEQUESTIONOFWESTERNSAHARA.... 2 3.LEGALSUPPORTOFTHECOMPLAINTANDPOSTJUDICIALAPPEAL ... 3 4.GOVERNMENTRESPONSES.. 6 5.GOVERNMENTCOOPERATIONWITHTHEEXPANSIONOFMILITARYINDUSTRY... 8 6.NOAGREEMENTANDCLAIMINCOURT.. 9 7.THEPOLITICALCONTRADICTIONS..... 10 8.ANNEXEOFPRESS..... 11

APPROACH _______________________________________________________________________________________ astApril,severaljuridicalandhumanrights organizations, filed the first complaint to the Spanish government, since the entry into force of Law 53/2007 of Foreign Trade of military and dualuse, with the objective to stop armsexportsfromSpaintoMorocco. Among the promoters of this initiative are in cluded,theAssociationofRelativesofPrisoners and Disappeared Saharawis (AFAPREDESA), the Human Rights Association of Spain (APDHE), the

International Association of Jurists for Western Sahara (IAJUWS), the Asturian Centre Human RightsforWesternSahara,theAragnsObserva toryforWesternSaharaandtheCanaryAssocia tion of Lawyers for Peace and Human Rights (JUPADEHU). The interest of these organizations iscommon,sincetheyencompassthefamiliesof victimsandmissingSahrawis,HumanRightsand PeaceAssociations,aswellasothersinterestedin thequestionofWesternSahara.

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BACKGROUNDANDHISTORICALCONTEXTOFTHEQUESTIONOFWESTERNSAHARA _______________________________________________________________________________________ hefactthatthreequartersoftheWestern Sahara is occupied by Morocco for over than35yearsandIthatMoroccodidnot inthepasthesitatetousethemagainstdefense lessciviliansfleeingthroughthedesert,thewhite phosphorusandnapalmweapons,internationally prohibitedactsforwhichthecourtisinvestigat ingtheMoroccanauthoritiesforanallegedcrime ofgenocideagainsttheSaharawipopulation,that shouldleadtoautomaticallyrejectingallapplica tionsforarmsexportstothiscountry. Thecurrentcessationofhostilities,resultingfrom theceasefirereachedin1991forwhosesupervi sion the MINURSO is the main responsible, can not make us forget that the illegal police and militaryoccupationofWesternSaharabyMoroc costillpersists.However,fromthedeclarationof theceasefirein1991tilltoday,theattacksofall 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 humanrightsassociations. Recently, such attacks have even worsened, due totheattackanddismantling,onNovember8th, 2010,ofthecampinGdeimIzik,ontheoutskirts

ofElAain,setupbytheSahrawipeopletopro test against the discrimination they face in their own land and against the plundering of their naturalresourcesbythegovernmentofMorocco. In that attack, the different state security forces of Morocco, counting up the Army, have been involved.Asaresultofthisoperation,afairnum ber of Saharawi civilian have been killed, these are yet to be determined on account of Moroc cos Government lack of transparence, and the isolation of the Saharawi territory from the me dias and the international observers. Few days earlier,onOctober24th,policehaveattackedthe peopleonavehiclethatwasenteringthecamp andkilledaboywhowasjust14yearsold. 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 Saharawipeoplesincedecades. Morocco does not withdraw from the Sahara, amongst other reasons, due to the domination and military superiority over a territory which doesnotbelongtoher.

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SUPPORTOFTHECOMPLAINTANDPOSTJUDICIALAPPEAL _______________________________________________________________________________________ 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 denceincludes,forinstances,reportsofInterna tional Associations for the Defence of Human RightssuchasHumanRightsWatchandInterna tional Amnesty, as well as the European Parlia ment'sreport. The fact that Spanish administration intends not togivereasonsforthiscourseofaction,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 theAct53/2007.
(1) Junta Interministerial Reguladora del Comercio ExteriordeMaterialdeDefensaydedobleUso.

defense equipment, other material or products anddualusetechnologiescanbeusedinactions thatdisturbthepeace,stabilityandsecurityina global or regional level, may exacerbate latent tensions or conflicts, can be used in a manner contrarytorespectduetothedignityinherentto the human beings, for purposes of internal re pression or in situations of violation of human rights,aredestinedforcountrieswithevidenceof diversions of materials transferred or may in fringe the international obligations assumed by Spain. In order to determine the existence of these rational suspicions, the reports on the transfers of military of defense and the final destine of theseoperationsthatareissuedbyinternational organizations in which Spain participate, reports fromhumanrightsbodiesandotherUNagencies, theinformationprovidedbyCentersofinvestiga tion of recognized prestige in the area of the development, disarmament and human rights, andtheupdatedbetterpracticesdescribedinthe User's Guide Code of Conduct of the European Union Exports of arms, will be taken into ac count". EUROPEANREGULATIONS

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, butnottheonlyonewhichthisinitiativeisbased on. SPANISHDOMESTICLEGISLATION

TheapplicationofLaw53/2007onForeignTrade ofmilitaryanddualuse,Actthatestablishesthe requirementsthatmustbemetforarmsexports tothirdcountries,shouldprohibitsuchexports. Fromnationallawpointofview,amerereading of the criteria laid down in Article 8 of Law 53/2007 must serve the purpose of plainly de terminingthatarmstransfersshouldberejected: "when there is reasonable suspicion that the

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 thecontrolofexportsofmilitarytechnologyand 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

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dates and replaces the Code of Conduct on Ex portofWeaponadoptedbytheCouncilon8June 1998." In Article 2 of Common Position 2008/944/CFSP settlingthecriteriathatmustberespectedinthe control of exports of military technology and equipment: 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 nonproliferation and other subjects, as well as otherinternationalobligations. Criterion2:Respectforhumanrightsobservance in the country of final destination as well as re spectbythatcountryofinternationalhumanita rianlaw. Criterion3:Internalsituationofthefinaldestina tion country, so long internal strife or armed conflictmayexist. Criterion4:Regionalpeace,securityandstability keeping. Criterion 5: National security of the Member Statesandofterritorieswhoseexternalrelations areofresponsibilityofaMemberState,aswellas thatoffriendlyandalliedcountries. Criterion 6: Behaviour of the purchaser country withregardtointernationalcommunity,specially concerning its attitude towards terrorism, the nature of its alliances and respect for interna tionallaw. Criterion7:Existenceofariskthatmilitarytech nologyorequipmentmaybedeviatedwithinthe buyer country or reexported under undesirable conditions.

Criterion 8: Compatibility of the exports of the military technology or equipment with the tech nical and economic capacity of the recipient country,takingintoaccounttheconveniencethat states should meet their legitimate security and defenceneedswiththeleastdiversionofhuman andeconomicresourcesforarmaments. AndallthisEuropeanregulationresultsfromthe exigency of human rights respect, enshrined in theLisbonTreatyof2007(TreatyoftheEuropean Union).Thus,inthearticles2and3oftheLisbon Treatyitissaid: 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, nondiscrimination, tolerance, justice, solidarity andequalitybetweenwomenandmenprevail.. Article3:Initsrelationswiththewiderworld,the Union shall uphold and promote its values and interests and contribute to the protection of its citizens.Itshallcontributetopeace,security,the sustainable development of the Earth, solidarity andmutualrespectamongpeoples,freeandfair trade, eradication of poverty and the protection of human rights, in particular the rights of the child,aswellastothestrictobservanceandthe development of international law, including respect for the principles of the United Nations Charter. INTERNATIONALLAW

Ontheotherhand,fromthepointofviewofthe International Law, the resolutions of United Nations and International treaties demand that StatesasSpainreacttoviolationsofinternation

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al law and of human rights committed by the KingdomofMoroccoinWesternSahara. The Declaration on Friendly Relations of the General Assembly (A / RES 2625 (XXV),October 24,1970),concerningtherightofpeoplestoself determination claims in his fourth principle (para. 2) that "every State has the duty to pro mote,throughjointorseparateaction,theappli cation of the principle of sovereign equality of rights and selfdetermination of peoples [...] and toassistUNinfulfillingobligationsentrustedtoit by the Charter regarding the implementation of thisprinciple[...]." The four Geneva Conventions of 1949 provides that "the High Contracting Parties undertake to respectandenforcethem." From these legal bodies it is to be drawn the conclusion that any State part thereof, taking or notpartofacertainconflict,hastheobligationto enforce the requirements imposed by the in strumentsinquestion. Ultimately,Spainaspartofsuchagreementsnot only undertakes to respect but also to "ensure therespect"oftheConvention,whatmeansthat ithasthedutytoreact,accordingtointernational law, to prevent imperative norms be infringed and to counter and mitigate consequences that mayarise. ConverselydidnottheSpanishgovernmenteven issue statements condemning the violations of

international law. It is not only a passive specta toroftheatrocities,butshedoesencourageand contribute to them when authorizing arms ex portsfromSpaintoMorocco. TheResolution2625oftheUNGeneralAssembly, October 24th, 1970, proclaiming the Declaration on Principles of International Law concerning FriendlyRelationsandCooperationamongStates in accordance with the Charter of the United Nations,alsoknownasFriendlyRelationResolu tion, estates that "all States should also refrain from organizing, assisting, fomenting, financing, instigating or tolerating any armed activities, subversiveorterroristactivitiesaimedtochange bytheviolencetheregimeofanotherState,and interfereinacivilwarofanotherState." The Commission of International Law, organism dependentonUnitedNationsandcreatedforthe codification of the International Law, has elabo ratedaProjectofarticlesontheresponsibilityof Statethat,thoughitisnotabindingnorm,turns outtobeinterestingtobementioned. 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 normofinternationallaw. According above emntioned project, the State providing aid or assistance is internationally responsibleifitisawarethatitisviolatinginter national law and that the assistance is intended toenablesuchviolations.

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GOVERNMENTRESPONSES _______________________________________________________________________________________ oon have the Trade Secretary of State, SilviaIranzo,refusedtogiveduecourseto thecomplaintthrougharesolution,dated April29th,2010,closingthedoorsoftheadmin istrative procedure to consider, as stated therin, that "The Spanish authorities have reviewed the termsofuse,soastoensurethatthedestination user and end use of exported material no other than those authorized by the Spanish govern ment and prevent reexportation or unwanted use." 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 thatthecountryhasopenedwiththeSahara. We do not share the confidence and optimism exhibited in the Spanish Government's state ments about the improper use of this material. Thesestatementsarenotminimallyjustifiedand are contradicted by numerous reports from in ternational human rights organizations (Human Rights Watch, Amnesty International, ...) and international(European Parliament report in 2008,....)thatdemonstrateexactlytheopposite. The testimonies that we still receive every day from the occupied territories of Western Sahara confirmthattheviolationofhumanrightsbythe Moroccanauthoritiesisisconstant. TheSecretaryofTrade,justifyherselfbyhaving "demanded strict control documents, concretely

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 reexportation or un wanteduseareprevented." While no one does know the content of these "strict" documents, because of the secrecy veil surroundingthesetransactions,wemustremem ber the evaluation of the distinguished British jurist,GeoffreyRobertson,whohasworkedasan appellatejudgeintheUNSierraLeone,hewrote inhisbook"CrimesAgainstHumanity,Thestrug gleforaglobaljustice: That, this certification is not even worth the paper in wich is written (or in witch is sent by fax):Isnotlegallybindingintheimportingcoun tryandonlysoughttoprotectfromthecriticism the Exporting State when their weapons appear inthewronghandsorinthewrongplaces." LACK OF TRANSPARENCY, OPACITY AND CONFIDENTIALITY. The Secretary of State of Trade declined to dis playtheinformationrequested,butaffirmedthat thegovernmentanalyzedcasebycasetheopera tions that were conducted in the Kingdom of Morocco.Byhidingbehindthesecrecyofcertain documents it is hindered for the Spanish society to know which the mechanisms of control used by the Spanish authorities to prevent the un wanteduseare. Iranzo also said, based on Law 30/1992 of No vember 26th on the Legal Regime of Public Ad

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ministrationsandCommonAdministrativeProce dure(LRJPAC),that"itisnotallowedtofacilitate (...)access " to the associations for the adminis trativefilesrelatingtoauthorizationofsalesand transfersofarmstoMoroccofortheyears2007,

2008 and 2009 because " The minutes of the Joint Board of Foreign Trade Regulatory Defense and DualUse have been declared secret under theAct9/1968,April5th.Onofficialsecrets,as she explained in its response.secretaria

AssemblycelebratedintheDignityCampGdeimIzik,ElAainWesternSahara

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GOVERNMENTCOOPERATIONWITHTHEEXPANSIONOFMILITARYINDUSTRY _______________________________________________________________________________________ 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 "...." Its true, "he admits,"we have beenslowtobecomeawareoftheimportanceof havinganexportpolicy. This process must be supported by the Spain brand,whichisveryrelyable:weareasafecoun try,servingcustomerswell.Butwemustaccom pany the firms when dealing wiht other governments,something thatother countriesdo naturally, so we have created a consulting to

support the export, CIDIS, within Isdefe public company." Notevenwithinamonthfromtheaboveremarks when in the same newspaper, a day before the hearingoftheSecretaryofStateforTradebefore the Congress to report statistics on exports of defenseequipment,itwasannouncedthatSpain hasrisenby33%itsarmssalesfrom2008,which "means that, for the first time, one of every 10 euros of Spanish products sold abroad is for weaponsandmilitaryequipment. 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.

Militaryvehiclesofthemoroccanarmyduringthesiegetothecamp

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NOAGREEMENTANDCLAIMINCOURT _______________________________________________________________________________________

helackofcompliancewiththeadministra tive decision has resulted in the lodging of an administrativereview before Na tional Courts. The claim has been accepted for consideration,inturnfor4thSectionofAdminis trative Tribunal, ordinary procedure N 285/2010.

Thejudicialprocedureisundergoinginitialphase, havingsendtthelitigant Administrationthecase file, though incomplete, reason for the Court to accept the request for complementary claims submittedbytheclaimants.

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THEPOLITICALCONTRADICTIONS _______________________________________________________________________________________ rom a political point of view, it is not un derstandablehowitcanbemadecompat 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 Aain and have supported United Nations negotiations between Rabat and thePolisarioFrontoverWesternSaharainorder to find a just, durable and mutually acceptable solutiontoensuretheselfdeterminationforthe

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 AgdaymIziktheSaharawicamp,bythesecurity forcesofMoroccoandhavespreadtothecityof El Aain, and then calls for the continuation of informal talks between Morocco and the Frente Polisario.

StateofthecampaftertheviolentevictionrealizedbyMorocco

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ANNEXEOFPRESS _______________________________________________________________________________________

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JUPADEHU