Abstract
In 2010 the international community codified the crime of aggression. But the jurisdiction of courts and definition of acts encompassed by the crime would remain incomplete. Western Sahara now appears to be the only situation where it is possible to prosecute aggression. The development of the crime is reviewed and the circumstances of aggression in Western Sahara are addressed starting with the territory’s invasion in 1975. The analysis moves to Spain’s 2014 adoption of the crime, its national criminal law jurisdiction and the limits to retroactivity in the case of Western Sahara. Occupation and annexation, as presumptive second and third acts of aggression in Western Sahara, are reviewed. A fourth act of aggression not explicitly defined in 2010 is examined, the intentional denial of a non-self-governing people’s right to self-determination. Defences to aggression in Western Sahara are evaluated. Lessons for future development and application of the crime are discussed.
1 Introduction
Over the past century humanity has grappled with defining and establishing the crime of aggression. The conferring of jurisdiction in 2018 on the International Criminal Court for acts of aggression committed by individuals and the century that has passed since the 1919 Treaty of Versailles provide an opportunity to examine the law for its prevention and assurance of accountability for the ‘supreme international crime’. 1 The work of the organised international community to make criminal the unlawful use of force against other states and territories has followed an uncertain path. The crime of aggression, intended to maintain the foundation of a rules-based international order under the UN Charter, has yet to be applied in the modern era. 2 However, one case offers the prospect of pursuing aggression even as jurisdiction for the crime in the International Criminal Court (the icc) and by its complementary adoption into domestic legal systems of states remains incomplete. That case is Western Sahara, providing an opportunity to assess the crime’s prospects including the sufficiency of its codification.
Aggression, although with a now settled definition, will predictably remain a unique crime only rarely prosecuted. That is because of its narrow application, directed to the behaviour of individuals – national leaders – who unlawfully direct and command the use of force on the international stage and because the crime does not neatly align with others of international criminal law, i.e. genocide, crimes against humanity and war crimes. Aggression may now be part of international humanitarian law (ihl), even as it arguably acquired a customary form in earlier decades, but few contemporary cases are even theoretically actionable. For reasons to be explained, Western Sahara is the only present situation where jurisdiction over the crime can be exercised. Such reach of the law is only through the courts of Spain, and not the International Criminal Court. No other case is caught by the icc or the complementary jurisdiction of states which have adopted the crime under the Rome Statute. Western Sahara, a long-running situation of post-colonial annexation by a neighbour state, is a situation with lessons for how the crime applies in practice. 3 Moreover, Western Sahara provides the opportunity to evaluate problems of jurisdiction and sufficiency of aggression’s definition. Western Sahara as an initial case to review illustrates necessary developments for codification, jurisdiction and the prospects of possible defences.
This article has three principal objectives and two secondary goals. It sets out first to examine jurisdiction over aggression in present-day Western Sahara. The contention is that aggression as defined in the 2010 Kampala Amendments to the Rome Statute and received into Spanish law applies prima facie to Morocco’s present occupation – unlawful and secured by armed force – of Western Sahara. The question of how Spain’s jurisdiction was established by adopting the crime in 2014 and its territorial connection with Western Sahara is addressed. The absence of icc jurisdiction over present-day aggression in Western Sahara is considered. A second objective of this article is to evaluate the sufficiency of the definition of aggression’s acts of occupation and annexation, which are crimes that sometimes follow an unlawful use of force. Western Sahara, where such acts continue, is again the object of analysis, including the extent to which aggression persists by occupation decades after invasion and active conflict. An aspect of the analysis is how individual liability is established as a matter of the direction or command of a senior national official to occupy and annex territory. This means contemplating whether there can be retrospective liability for the crime where force is now employed only passively to secure occupation or annex territory. A third objective of this article is to examine if aggression includes the intentional denial of the right of self-determination to a non-self-governing people distinct from the use of force, occupation and annexation. It is argued that such denial, or obstruction, amounts to aggression and is sufficiently codified in the Rome Statute. Contending aggression extends in this way is novel and reveals the gravity of the stalled self-determination of the Saharawi people of Western Sahara. The analysis is meant to contribute guidance for future cases where the self-determination of a people under occupation has been denied. 4
This article has a secondary goal to contribute to the analysis of ihl in Western Sahara. Determining if ihl applies to a conflict sometimes must begin with understanding when aggression has occurred. Aggression is often the originating act or basis for ihl crimes that follow, e.g. abuses of a victim population, territorial partition and pillage of a territory’s resources. Western Sahara has received limited scholarly and judicial analysis of how ihl applies, the result of a received understanding of Western Sahara as singularly a question of self-determination. Examining aggression’s origins and continuing manifestation in the territory is intended to add to the analysis, allowing others to assess how ihl applies to particular contemporary acts. A further secondary goal is to examine the crime in what seems to be its only currently actionable case. In the aftermath of the Kampala Conference and conferring of jurisdiction on the icc, there are no other cases to examine the challenges of jurisdiction and individual liability. How states perceive and choose to adopt the crime into domestic legislation will depend on their understanding of early cases.
To avoid complexity and prolixity, this article will not address the prospective liability of individuals responsible for aggression in Western Sahara. Such persons are few in number because aggression by definition can only be committed by the most senior national officials responsible to direct the use of force. 5 The responsible individuals include those with authority for Western Sahara’s occupation and annexation after the crime of aggression entered force: Morocco’s head of state, its head of government, and perhaps senior military and civil officials who oversee the present occupation. The article more substantially considers the evidence necessary to establish acts of aggression, from ‘manifest’ use of unlawful force, through occupation and annexation, to a fourth act of aggression, intentional denial of self-determination. However, no attribution of the evidence in the case of Western Sahara is made to particular individuals. The question of personal responsibility awaits further analysis, including in cases to be pursued in courts of competent jurisdiction. 6
This article leaves for later assessment questions about the nexus of state, icc and UN Security Council jurisdiction over aggression, both generally and in Western Sahara. The matter of conflicting roles between the icc and the Security Council has been ably addressed by others and can be sidestepped because the icc does not presently have jurisdiction over aggression in Western Sahara. In addition, the Security Council is unlikely to act given its singular treatment of Western Sahara as a case of decolonisation. However, whether state, i.e. national legal system, jurisdiction should be invoked against individuals responsible for aggression where the icc and Security Council are unable to act is discussed on the basis that states may complementary to the icc when the crime occurs in their territorial jurisdictions. Pursuit of aggression in Western Sahara through the legal systems of third states is no more than theoretical, because many states have no material connection to Western Sahara and aggression is defined to exclude secondary and contributory liability. As is explained, aggression in Western Sahara is perpetrated by Moroccan officials, and consists of acts in the territory itself and without an international dimension that engages the criminal law of third states. 7
In Part 2, next, the negotiations to codify aggression which culminated at the Kampala Conference of icc states (and others) in 2010 are recalled. The threshold application of the crime to the case of Western Sahara is discussed in the context of ihl. In Part 3 the analysis moves to questions of jurisdiction, establishing why the icc and an occupying Morocco cannot act, before examining Spain’s jurisdiction over the crime as now manifested in Western Sahara. Issues of geographic jurisdiction confirmed by recent criminal appeals cases and the rule against retroactivity are assessed here. In Part 4, criminal liability for the continuing occupation and annexation of Western Sahara into Morocco as specific acts of aggression is considered. Part 5 contends with whether aggression includes the act of intentionally denying a non-self-governing people their right to self-determination as a fourth and singular manifestation of the crime. In Part 6 the article examines defences to the crime in the context of Western Sahara, including the possibility that liability is reduced or eliminated by the United Nations administered process for self-determination of the Saharawi people.
2 The Sum of All Evils: Aggression as Crime
If the idea of criminal accountability for senior officials of a state which has acted with aggression against other states, territories and peoples was slow to gain acceptance after Versailles and the work of the International Military Tribunal following the Second World War, it was the UN General Assembly’s defining of aggression that would result in codification of the crime at Kampala. For some years the General Assembly had contemplated identifying norms to secure international peace. It began its work in 1950 when it received the proposal of a state to define aggression, referring the matter to the International Law Commission but without result. 8 In 1967 the General Assembly acted more purposefully to create guidance for the Security Council about what acts of state constituted aggression. 9 By 1973, proposals from groups of states in the General Assembly’s aggression committee had taken form, setting the stage for an agreed definition the following year. 10 Aggression, first conceived as the unlawful use or threat of force against the territory of another state, was defined to include ‘military occupation, however temporary’ after an attack and ‘any annexation by the use of force’. 11 The 1974 definition confirmed aggression was for the Security Council to declare. The General Assembly committee did not attempt to create a crime of aggression and stayed away from considering the possible grounds of individual responsibility. However, it is arguable that in combination with definitions suggested at the International Military Tribunal after 1945, a crime of aggression was starting to acquire tangible form by operation of customary international law. Despite this, the following decades would see no cases against individuals and limited use of aggression as a label to describe international conflicts. The General Assembly definition appears never to have been applied by the Security Council, including decolonisation cases after 1974 that involved forcible occupation of territory, e.g. East Timor (now Timor-Leste). The agreed codification at Kampala in 2010 has arguably superseded any customary form of the crime. 12
Deterring aggression by codification as a crime is consequential because an accepted definition is available with less ambiguity in cases of direction by a head of state or government to unlawfully use force, or pursue occupation and annexation. Making the direction of aggression a criminal act would be arguably incomplete if only unlawful use, or threatened use, of force had been provided for. A routine goal of aggression in 20th century conflicts included acquisition of territory and the expelling of undesired peoples from conquered lands. ihl with its Rome Statute, and Hague-Geneva Conventions prohibitions against the behaviour of an invading state is intended to safeguard the physical and material security of a civil population during conflict. 13 Armed attack and subsequent occupation – as originating wrongful acts that engage ihl for the protection of a civil population – are part of ihl’s canon after aggression’s codification at Kampala and adoption by some states into domestic legislation under their complementarity obligations to the icc. 14
2.1 International Humanitarian Law’s Actuating Problem
ihl’s actuating problem, the question of which organisation is competent to declare ihl applies to a conflict, is partly resolved by the codification of the crime of aggression. The uncertainty of whether ihl applies to a conflict and its aftermath can result from the absence of authoritative declaration, i.e. pronouncement of the UN Security Council or the International Committee of the Red Cross that a conflict of sufficient gravity and international dimensions exists. Western Sahara demonstrates this declaratory threshold problem because it is understood by the UN and states as a situation of decolonisation for which until recently there was little recognition ihl should apply. 15 As East Timor was from 1975 until 1999, Western Sahara is subject to the law of decolonisation, i.e. the self-determination of a non-self-governing people and to ihl.
However, applying Rome Statute and Hague-Geneva Conventions rules to the more routine crimes of armed conflict committed by individuals in the territory is difficult. The organised international community is reluctant to extend ihl to Western Sahara. Codifying aggression in the Rome Statute gives icc judges and those of subscribing national courts an independent declaratory competence. The suggestion is contentious, of course. However, courts are at least as well-placed as the Security Council to examine the evidence of individual liability for aggression. Arguably, the purview of the Security Council is to maintain international peace by assessing the conduct of states, and not individuals. Western Sahara reveals the problem of which international bodies can acceptably define the behaviour of senior state officials as criminal while an international conflict is in progress. In codifying aggression and giving jurisdiction to courts, the Security Council’s singular role to define acts as contrary to international peace and security has been encroached upon. What defines aggression as the originating offence against international peace is now open to judicial identification and declaration. The result is that states conducting their international relations through the Security Council have reduced control over when ihl will apply to a conflict. 16
However, whatever its definition, the crime of aggression is a long way from universal application: The two-fold comprise of negotiation and later implementation agreed at Kampala conferred a jurisdiction on the icc that is limited to consenting states, i.e. their territories and citizens. 17 Individuals from member states yet to accept the Kampala Amendments and from non-member states will remain outside the Court’s aggression jurisdiction. Further, states which agree to the Kampala Amendments appear to have a future option of withdrawing from icc jurisdiction over the crime. 18 Moreover, the crime as it is defined at Article 8bis of the Rome Statute will not become binding on all icc states until seven-eighths of them accede to Article 8bis. Because Morocco does not belong to the Rome Statute, the pursuit of its officials for aggression in Western Sahara is therefore limited to Spanish jurisdiction. It is these things, the result of compromises in the negotiations after 1998 which culminated at Kampala, that explain why Western Sahara is the only case where the crime can now be pursued.
2.2 The Singular Case of Western Sahara
The journey to codifying aggression was long and sometimes uncertain. When the crime was defined in 2010, and began to be ratified and received by icc member states through complementary domestic legislation, it was decided that the Court would not be given jurisdiction until at least 2017. That year the icc Assembly of States Party decided the Court – over individuals from consenting states – would be given jurisdiction on 17 July 2018, the anniversary from when the Rome Statute opened for signature in 1998. The result is that the Court has limited geographic and ad personam jurisdiction over the crime unless it receives a Security Council reference to investigate aggression. Rome Statute member states that adopted the Kampala Article 8bis definition into domestic legislation, including Spain in 2014, have jurisdiction over their territories and nationals but otherwise not on a universal basis. 19 Since jurisdiction was conferred on the icc in 2018, no situation has engaged the Court. That is because no current aggressor state, including occupations after armed attack, has acceded to the Kampala Amendments. 20 Today’s cases of aggression are ones where the states responsible are unlikely to join the icc or, if icc member states, accede to the Kampala Amendments thereby putting responsible national officials within the Court’s jurisdiction.
Contemporary situations of aggression initiated by or later involving unlawful use of force arguably include the following: (i) Armenia and Azerbaijan in Nagorno-Karabakh; (ii) China in Tibet; (iii) territorial acquisition and expansion in the South China Sea; 21 (iv) Cyprus; (v) India and Pakistan in Kashmir; (vi) Israel in the Golan; 22 (vii) Russia in the Crimea; 23 (viii) Russia in South Ossetia; (ix) Saudi Arabia (and others) in Yemen; 24 (x) the use of force and presence of various states without authorisation in Syria; 25 and (xi) the United Kingdom in the Chagos Islands. 26 Palestine is a seeming exception to this list because its government has acceded to the crime of aggression as a member of the Rome Statute. 27 However, Palestinian jurisdiction over the nationals of other states for aggression in its territory is, for the moment, little more than academic. That is because there is some uncertainty about the geographic extent of the Palestinian state, including places on the West Bank, where jurisdiction might be practically exercised. A second impediment is the Oslo Accords which could be taken as prohibiting investigation of Israeli officials alleged responsible for aggression in Palestine. 28 The greatest limit to Palestinian jurisdiction over aggression in its territory is practical, namely, the inability to detain Israeli senior government officials and bring them to trial. The result is that Western Sahara, through Spain’s domestic criminal jurisdiction, is the only situation where aggression can be pursued.
2.3 Alleging Aggression
After its jurisdictional aspects, a second matter to consider is aggression’s material difference from the other crimes of ihl, being premised on violations of the UN Charter. Alleging aggression means showing unlawful use of force to have transgressed the international order for peace and security. This contrasts with ihl’s established goal of protecting people during conflicts by deterrence of individual acts and ensuring accountability for crimes committed both before and after active hostilities. From this basis to define aggression, two categories of the crime can be posited: (a) a ‘classical requirement’ under Article 2(4) of the UN Charter to prohibit violations of a state’s sovereignty, territorial integrity or political independence, and (b) prohibition against use of force ‘in any other manner’ contrary to the Charter. 29 The adoption at Kampala of the catalogue of acts in UN General Assembly Resolution 3314 – brought into the Rome Statute as Article 8bis(2)(a)–(g) – invasion or attack, bombardment, blockade – limits the second of these Charter violations to infrequent situations. 30 How else, the question goes, is aggression inflicted except by large scale, unlawful, armed infringements of a state’s sovereignty, territorial integrity or political independence? One answer, considered below, is the UN Charter Article 73 provision to assure non-self-governing people their right to self-determination. 31 The agreement of states at Kampala to codify violations of the UN Charter wasn’t new: Resolution 3314’s preamble notes a ‘duty of States to not use armed force to deprive peoples of their right to self-determination, freedom and independence …’. 32 The prohibition in Article 2(4) of the Charter to protect the political independence of states from aggression is consistent with this. If it is a crime to attack an independent state by unlawful use of force, a fortiori the crime will be committed when there is a violation of the Article 73 trust to ensure the self-determination of a non-self-governing people.
Aggression as defined in the Kampala Amendments has three constituent sources: (i) Rome Statute Articles 8bis, 15bis and 15ter; (ii) the Elements of Crimes which give substance to Article 8bis; and (iii) the 2010 Conference’s declaratory Final Understandings (themselves referred to as the ‘Kampala Understandings’). 33 Article 8bis is the substantive provision, requiring the following to be established when alleging individual responsibility for aggression:
- 1) For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position to effectively exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
-
2)
For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (xxix) of 14 December 1974, qualify as an act of aggression:
- (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof … 34
Next are the Elements of Crimes, which largely repeat the Article 8bis definitions. They are less indicia of a perpetrator’s mens rea than other Elements for particular war crimes. 35 However, although not written as conjunctive but necessarily read thus because of Article 8bis’s requirements, the Elements offer nuance when identifying wrongful conduct:
Elements [of aggression] [It must be established that:]
- 1. The perpetrator planned, prepared, initiated or executed an act of aggression.
- 2. The perpetrator was a person in a position to effectively exercise control over or to direct the political or military action of the State which committed the act of aggression.
- 3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.
- 4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.
- 5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
- 6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. 36
Some Kampala Understandings are particularly applicable to Western Sahara. To begin with, Understandings 1 and 2 are not, as they address the icc’s jurisdiction over cases referred to the Court from the Security Council. Similarly, Understanding 3 – jurisdiction ratione temporis – confirms the start of the Court’s jurisdiction over the crime, 18 July 2018. 37 Understandings 4 and 5 reflected the concern of several states that the 2010 amendments apply only within the Rome Statute framework and are not to create a cause of action in the domestic courts of states ‘with respect to an act of aggression committed by another state’, i.e. against other states. 38 It is Understandings 6 and 7 that apply to Western Sahara because they amplify Article 8bis to require the establishing of individual criminal responsibility by the threshold of grave and manifestly unlawful use of force:
Other understandings
- 6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.
- 7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself. 39
Understanding 6 demands a high degree of culpability at a level of specific intent mens rea because of the disapproval of the organised international community for ‘serious and dangerous ... illegal use of force’. Understanding 6 can be taken as imbuing the ‘post-aggression’ acts of occupation and annexation to be shown to have included the use of force in their realisation and perpetuation. That requirement is relevant to Western Sahara where the original act of aggression – the territory’s 1975 invasion – is without doubt barred by the rule against retrospectivity of the crime under the Rome Statute and Spain’s criminal law. The question that results is whether the territory’s occupation or annexation (or both) is now being accomplished by the illegal use of force.
Aggression’s definition in Article 8bis, the Elements and the Understandings necessitates four things be made out when alleging individual wrongdoing: (i) the personal – the individual must be shown to have ‘exercised control’ over the use of armed force at the highest levels of state; (ii) the mode of wrongful conduct – the use of armed force must be under the perpetrator’s control; (iii) the nature of the violation – it must be shown that force was used ‘against the sovereignty, territory or political independence of another State’ or otherwise ‘inconsistent with’ the UN Charter; and (iv) the degree of violation – the character, gravity and scale of force must be shown to be a manifest violation of the Charter. Where the requirements as a whole for the crime, distilled to these four components, are established no defence would seem to be possible. Self-defence under Article 51 of the UN Charter circumvents the crime by making lawful the use of force. The Kampala Understandings eliminate de minimis use of force as a qualifying wrongful behaviour. Understanding 7 is clear: Where force is used, the violation must be overt in each of its characteristics of character, gravity and scale. 40
Some examples of de minimis use of force that would not result in the liability of senior officials can be suggested in the context of humanitarian intervention. First, it seems possible there can be use of force which breaches the territorial integrity of a state under the doctrine of the responsibility to protect where such an act has not been authorised by the Security Council. Second, the use of force to ensure delivery of humanitarian relief into a state unable or unwilling to give its approval could be acceptable if falling below the threshold of gravity prescribed by Article 8bis–Understanding 7. Third, a limited use of force without loss of life and that avoids damage to civil infrastructure may be de minimis if to deter the violent act of a targeted state where there is no obvious self-defence interest of an attacking state. Missile strikes carried out by the United States against alleged chemical weapons sites in Syria are an example. 41
2.4 Western Sahara in Contemporary ihl : The Relevance of Aggression
As with other late 20th century decolonisation cases, among them Namibia and East Timor, ihl has featured minimally and inconsistently in what the UN calls the ‘question’ of Western Sahara. The approach of the UN has been to ensure the right to self-determination for the Saharawi people. No reference is made in UN policy and Security Council direction about whether ihl should apply even in general terms such as by describing Western Sahara as occupied. There has been no call to invoke the Geneva-Hague Conventions framework to protect the Saharawi people or even a civil population as a whole which includes Moroccan settlers. Scholarly discussion of the role and application of ihl to Western Sahara has been correspondingly minimal. 42 It is clear why Western Sahara continues to be described as a situation of self-determination. The territory’s invasion was never described as a breach of the UN Charter nor for some time afterward as an occupation. A second reason is that the parties – Morocco, the Polisario Front as the Saharawi national liberation movement and the UN – agreed to decolonisation without apparently contemplating such a process would also end an occupation. Moreover, claiming ihl applies in Western Sahara creates a problem for diplomacy by compelling states to decide for themselves if occupation (and perhaps annexation) is taking place. This would confound the UN’s resolutely even-handed treatment of what it styles as a ‘mutual’ process of self-determination. Observing ihl to apply calls attention to Morocco’s conduct in the territory, something counter-productive to an agreed, if stalled, process of decolonisation. The accepted application of ihl or specific crimes would impose obligations on the organised international community. An example is the coastal fishery and export of phosphate rock from Western Sahara: Claiming such activities are pillage as defined by the Fourth Geneva Convention and the Rome Statute causes problems (including prospective secondary criminal liability) for states and corporations trading with Morocco for the resources. 43
In situations such as Western Sahara, there are two ways to establish the application of ihl. A first is to determine the factual circumstances that invoke or provide a foundation for ihl. A second is the declaratory, through the stated conclusion of a competent organisation such as the UN Security Council, that ihl obligations exist and must be complied with. For both, the case of Western Sahara is compelling because of its notorious facts. East Timor offers a comparison, occupied by Indonesia in 1975 by overt and unlawful aggression. What makes Western Sahara an even more compelling case is that Morocco’s claim to the territory was rejected by the International Court of Justice before its invasion. 44 In its Western Sahara Advisory Opinion the Court found that neither Mauritania nor Morocco had a claim to the then Spanish Sahara: 45
[T]he Court’s conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (xv) in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory ... 46
The Court noted the Saharawi people had a right to self-determination as a non-self-governing people under Article 73 of the UN Charter and General Assembly Resolution 1514 (xv). 47 After such conclusions, no more seems needed to establish the illegality of Western Sahara’s invasion and continuing occupation. However, various courts have more recently addressed Morocco’s presence in Western Sahara. One was South Africa’s trial-level court. In a 2017 civil case brought by the Saharawi government (the Saharawi Arab Democratic Republic acting as a state recognised by South Africa) to seize and recover 55,000 tonnes of phosphate rock exported from Western Sahara in a ship that had entered Port Elizabeth to refuel, the court found the icj’s 1975 conclusion ‘was clear: Morocco has no claim to sovereignty over Western Sahara. Its claim to sovereignty as a result of its occupation of the territory is incompatible with the status of Western Sahara as a non-self-governing territory. Furthermore, it acquired control of the territory by force. This, as a means of acquiring sovereignty, is contrary to customary international law’. 48 Such a settled status can only mean that an occupation continues. An occupation without right or justification secured by force fulfils the definition of aggression.
3 Spanish Jurisdiction over Aggression in Western Sahara
On first impression, it appears improbable that Spanish jurisdiction in any criminal law matter can extend to Western Sahara. After all, Spain gave up and left the colony in February 1976. It has since made no effort to ensure the self-determination of the Saharawi people except as an occasional contact state in the UN-administered process after 1991. A colonial state’s criminal law could not be expected to apply in the circumstances. Until 2014, the settled view was that Spain no longer had responsibility in criminal law for Western Sahara or the Saharawi people. 49 Meanwhile, the International Criminal Court does not yet have jurisdiction over aggression in Western Sahara. Under Article 15bis(5) of the Rome Statute, the Court’s aggression jurisdiction cannot extend to: (a) nationals of non-member states and (b) acts committed in the territories of non-member states. Morocco, as noted, is not a member of the Rome Statute. 50 Only when states expressly consent to Kampala aggression jurisdiction or otherwise provide for aggression in their domestic legal systems can the crime apply. Non-subscribing aggressor states, such as in the situations canvassed in Part 2 above, rest comfortably in the assurance that their responsible nationals are beyond accountability. This is the opposite of what was intended for ihl under the Rome Statute and Geneva-Hague Conventions: Aggression as a foundational crime would ideally be the subject of the same ambit of icc and state jurisdiction.
On jurisdiction for aggression we can also reliably conclude that the UN Security Council will not likely refer Western Sahara to the icc to investigate aggression under Article 15ter of the Rome Statute. 51 The pursuit of Moroccan officials would complicate resolving the ‘question’ of Western Sahara which in the Security Council is a matter of decolonisation. Even the contemplation in UN circles of Western Sahara as a case of aggression would necessitate an unprecedented shift of consensus. The cases of East Timor and Namibia were never considered in such terms. Of course, the icc is able to exercise jurisdiction in Western Sahara for allegations of genocide, crimes against humanity and war crimes because of Spain’s membership of the Rome Statute and, as discussed below, recent decisions which confirm its criminal law extends to Western Sahara.
When it ratified the Kampala Amendments in September 2014, Spain acquired jurisdiction over acts of aggression from that date. There is no bar in the Rome Statute under the Kampala Amendments or by other operation of international law to such domestic jurisdiction. Such a scheme was intended at Kampala: The accepted entry into force of the crime under icc jurisdiction – one year after the thirtieth ratification of the Amendments – combined with the principle of complementarity in the Rome Statute would always mean that states themselves would acquire jurisdiction over the crime. 52 Kampala Understandings 5 and 6 also contemplated state adoption of the crime by declaring jurisdiction to be ad personam, and cautioning against proceedings that could erode the sovereign immunity of an impugned state by a domestic criminal prosecution of aggressor state senior officials. In such a scheme of complementarity, therefore, two conditions must ground Spain’s criminal law jurisdiction over aggression directed by Moroccan state and government officials in Western Sahara: (a) reception of the crime into the national legal order and (b) a geographic reach of the law into the territory. The second is novel: Can a colonial administering state’s criminal laws apply to a non-self-governing territory, including where the presence of that state has been interrupted or application of its legal order has been supplanted by others? Article 73 of the UN Charter provides that the ‘sacred trust’ of decolonisation is a non-derogable duty of a colonial state. It follows that a colonial state’s criminal law would be presumed to continue in application. 53 However, there seems to be no precedent as a guide from the era after 1945. Colonial criminal law, so-called, of European states in Africa and elsewhere was almost invariably the geographic extension of such law from the metropolitan state. Spanish Sahara from 1885 until 1975 is an example: Spain’s criminal law extended without restriction or modification in the territory. In contrast, East Timor from 1975 until 1999 was never suggested as having any legal system or criminal law present than that of an occupying Indonesia. 54 Namibia’s post-1970 apartheid occupation was a middle ground between Western Sahara and East Timor, formal authority for the territory being exercised at a distance by the UN Council for Namibia if with few legislative projects and without tangible result.
We must therefore ask what is the possible basis for a colonial state to continue its criminal jurisdiction in a territory occupied by another state. The Fourth Geneva Convention supplies part of the answer. Continuity of criminal law during occupation must be maintained: ‘The penal laws of the occupied territory shall remain in force …’. 55 The requirement means that Morocco in Western Sahara is required to apply the crime of aggression as the crime has been received into Spanish law, although within the territory:
The occupying power does not assume the rights of a sovereign state upon occupation of a foreign territory … Sovereign power rests with the lawful authorities of the state; even if they are temporarily unable to exercise control over the territory. The authority to enact laws is unquestionably an attribute of sovereignty … Although Article 64 mentions only criminal law which remains in force, the entire legal system of the occupied territories is actually meant by this rule. 56
Spanish criminal law jurisdiction in Western Sahara has been settled by the country’s criminal appeals court as having resulted from Article 73. Two decisions of the Audiencia Nacional have confirmed criminal law jurisdiction to have continued uninterrupted in Western Sahara since 1975. The first decision, in 2014, found that jurisdiction extended to acts alleged to have been committed by Moroccan police officers during the violent dismantling of a Saharawi protest camp at Gdeim Izek in November 2010. 57 A full panel of the court, with 16 judges participating, considered legislation enacted earlier in 2014 to limit Spain’s universal criminal jurisdiction. 58 The Audiencia Nacional concluded after referring to Spain’s obligation to decolonise Western Sahara under Article 73 that jurisdiction extended to a complaint by the Spanish League for Human Rights to investigate the death of a Saharawi with Spanish citizenship at Gdeim Izek. The League had alleged crimes against humanity, murder, and torture contrary to Articles 139, 174–177 and 607 of Spain’s Penal Code. The Audiencia Nacional wrote that Western Sahara’s status had been the subject of an opinion in 2002 by Hans Corell, then UN Legal Counsel, and a 2014 decision of the European Court of Human Rights about the non-refoulement of Saharawi asylum seekers who fled to the Canary Islands after the Gdeim Izek incident. 59
The year 2015 brought a second appellate decision that was extensively reasoned by the Audiencia Nacional. The case was one of particular historic allegations of war crimes and crimes against humanity perpetrated by 11 Moroccan civil and military officials in Western Sahara from 1975 until 1991. 60 The judgment characterised some allegations as possibly amounting to genocide. (None of the allegations, it must be noted, suggested the crime of aggression.) The Audiencia Nacional returned to Spain’s colonial acquisition of Western Sahara and decolonisation under Article 73. Once again, the possible application of Spain’s recent legislation to restrict universal jurisdiction, discussed below, did not need to be addressed. The court noted in its recital of background facts that Western Sahara was occupied: ‘The occupation of the territory of Western Sahara by Morocco was carried out by violence against the Saharawi people and resulted in the displacement of a majority of the population crossing into the Algerian desert (Tinduf)’. 61 The 2014 and 2015 decisions confirm Spanish jurisdiction for ihl extends to Western Sahara. 62 This allows us to turn to how the Kampala definition of aggression came to be received into Spain’s domestic legal order.
3.1 Spain’s Complementarity to the Rome Statute
Spain was a Global North supporter of the International Criminal Court, readily joining negotiations for the Rome Statute. When the treaty opened for signature in 1998 Spain joined it and moved to ratification on 19 October 2000. 63 Spain’s position about the crime of aggression has been consistent: ‘Spain would very much like to see the crime of aggression included in the Statute subject to finding a satisfactory definition and resolving the question of the role to be played by the Security Council’. 64 Spain became one of the first states to accept the Kampala definition, notifying the UN Secretariat (as depositary of the Rome Statute) in September 2014 of its accession. It declared it would become bound by Article 8bis on 25 September 2015. 65 However, legislation for the accession was immediately brought into effect as Ley Orgánica 5/2014, de 17 septiembre, por la que se autoriza la ratificatión de las Enmiendas al Estatuto de Roma de la Corte Penal Internacional, relativas a los crímenes de Guerra y al crimen de agresión, hechas en Kampala el 10 y 11 junio de 2010. 66 The statute declared Spain’s acceptance of the Kampala Amendments but did not codify Article 8bis into a statute, i.e. as a provision of the Código Penal. Accession was intended to ‘strengthen the commitment [of Spain] to the defence of human rights and the work of the International Criminal Court as an independent organisation that embodies the paradigm of universal criminal justice and that champions the fight against impunity in the face of the most serious crimes committed against humanity’. 67 Spain’s legislation to ratify and implicitly adopt Article 8bis (and Articles 15bis and 15ter) was earlier than required by the Rome Statute provision for predicate crimes at Articles 5, 6, 7 and 8 to ‘enter force for those States Parties which have accepted [an] amendment one year after the deposit of their instruments of ratification or acceptance’. 68 The result is that Spanish jurisdiction over aggression came into effect on 18 September 2014. No provision was made for retrospective application of the crime, therefore the Código Penal’s prohibition against punishing past acts not then defined as offences must be accepted to apply to aggression. 69
The reception of aggression into the Spanish legal order resulted by operation of Article 96 of the constitution, the Constitución Española. 70 Articles 81–96 provide for the competence of domestic law-making by parliament (the Cortes Generales) and government, and reception of international law. Article 96(1) defines two requirements for an international treaty to enter Spain’s domestic legal order, namely: (a) establishment of the treaty and (b) official publication: ‘Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system’. 71 Two things can be noted about Spain’s reception of the Kampala Amendments. One is that the September 2014 statute that marked accession to Articles 8bis, 15bis and 15ter was organic legislation – ley orgánica – which under Article 81 of Spain’s constitution has added importance in the national legal order, required to be approved by an overall majority of the members of Congress, the directly elected house of parliament. 72 Second, the act of accession was published in the Official Bulletin of State, the boe. 73 That the Kampala Amendments were intended to enter Spain’s legal order is clear from the preamble of the September 2014 statute noting the Rome Statute had ‘entered into force for our country on 1 July 2002’. 74
3.2 Aggression’s Universality in Spanish Law
After being received into Spain’s legal order, the crime of aggression successfully avoided being captured by legislation designed to restrict the country’s jurisdiction for international humanitarian and human rights crimes. The crime had been ratified and received only after such legislative restrictions were completed in 2014. It is possible that the government in Madrid did not contemplate including aggression within the scope of the restricting legislation. As in other countries, universal jurisdiction prosecutions after Pinochet caused diplomatic problems. Some cases after 2000 were ‘regarded as a source of diplomatic friction with other nations following the persecution of their leaders on grounds of systematic human rights violations’. 75 The cases were wide-ranging, including historic crimes by Nazi German officials, China’s conduct in Tibet, and the United States in Iraq and at Guantanamo Bay. In 2009, Madrid made a first attempt to restrict universal jurisdiction by legislating a requirement for international crimes to have a connection to Spain’s national interest. 76 Despite this, some cases continued including ones engaging Spain’s responsibility to uphold international humanitarian law. The China-Tibet case, with allegations of genocide and aggression, 77 was argued as touching on Spain’s national interests because of its membership in the Fourth Geneva Convention. 78 The Audiencia Nacional upheld the connection requirement in a 2013 decision:
At the hearing and notwithstanding the public prosecution’s insistence on closing the case given the lack of national connection, the judges of the appeals chamber flatly rejected this line of reasoning. The judicial order upheld a national connection, pointing to the Spanish nationality of one of the Tibetan victims and co-plaintiffs … In addition, the appeals judges of the [Audiencia Nacional] rejected [the] prosecution’s request for closure of the case on the basis that Chinese courts held jurisdiction, saying that were no records of “Chinese authorities having begun any type of investigation into the facts giving rise to the lawsuit.” 79
A diplomatic rebuke from China followed. In 2014, Madrid moved to pursue a second round of reforms by amending the lopj (the Judicial Power Statute) to limit jurisdiction to situations where a perpetrator is Spanish or a foreigner ordinarily resident on Spanish territory. 80 The amendments also prohibited jurisdiction over international crimes where there is an existing international proceeding or one in a national court of the place of the crime or where the accused is a citizen. 81 Such ‘labyrinthine rules within the same legal provision create confusion between universal jurisdiction and the principles of territoriality, active/passive personality and protection’. 82 Spain’s Supreme Court drew an approving line under the restrictions in a 2014 appeal of the Tibet case, above. 83 ‘The effects of the Supreme Court ruling were immediate. Fearing reprisals and lawsuits for perversion of the course of justice, the judges of the [Audiencia Nacional], who initially resisted applying the reform, capitulated’. 84 The 2009–14 restrictions could theoretically limit Spanish jurisdiction in Western Sahara for the crimes of genocide, crimes against humanity and war crimes because of a ‘foreign person within Spanish territory’ requirement. 85 It is possible that individuals directly responsible or alleged to have secondary liability for these crimes, if involved outside the territory, would not come within Spanish jurisdiction by operation of the post-2014 lopj. However, the crime of aggression does not fall within the scope of the restrictions. Article 24 of the 2014-amended lopj is clear: There is no mention of aggression in an otherwise comprehensive list of crimes required to have a connection to Spain. Article 24(4)(a) limits jurisdiction over Rome Statute and Geneva Convention crimes but not aggression:
[Article 24(4)] Equally, Spanish jurisdiction extends to receive acts committed by Spaniards or by foreigners outside of national territory which are capable of being classified, according to Spanish law as one of the following offences when they comply with the [following] expressed conditions…
[24(4)(a)] Genocide, [crimes] against humanity or against persons and property protected in the event of armed conflict, provided that the proceeding is directed against a Spaniard or against a foreign citizen who habitually resides in Spain, or against a foreigner [in] Spain and whose extradition was denied by the Spanish authorities. 86
In contrast to the Article 24(4) chapeau in the first paragraph above, a subsequent provision allows expansive jurisdiction, i.e. a reduced material connection/national interest requirement for some crimes. The provision is Article 24(4)(d). It confers jurisdiction without distinction of a perpetrator’s nationality or location or place of the crime for piracy, terrorism, drug trafficking, and human trafficking ‘against the rights of foreign citizens … in suspected cases provided for in treaties ratified by Spain …’. 87 Jurisdiction over acts of terrorism is provided for in Article 24(4)(e) where the crime is defined to include: (i) Spanish perpetrators; (ii) foreigners habitually residing in Spain; (iii) acts of alleged terrorism on behalf of a legal entity domiciled in Spain; and (iv) instances where a victim was a Spanish national at the time of the commission of the alleged offence. 88 A residual provision at Article 24(4)(p) is helpful to resolve the requirement for aggression to have a connection to Spain. It is consistent with the Article 24(4) chapeau, as follows:
[Article 24(4)] Equally, Spanish jurisdiction extends to receive acts committed by Spaniards or by foreigners outside of national territory which are capable of being classified, according to Spanish law as one of the following offences when they comply with the [following] expressed conditions…
[24(4)(p)] [including] any other crime which must be pursued as a mandatory obligation under a current treaty binding on Spain, or by other normative acts of an international organization of which Spain is a member, in the cases and conditions determined in them. 89
There is no inconsistency between universal jurisdiction over the crime of aggression and a restrained investigative-judicial reach to ihl and other serious international crimes. After all, aggression is the supreme crime. Spain’s stated commitments in support of deterring and punishing the crime have been unambiguous. As a result, Spanish jurisdiction over aggression in Western Sahara after September 2014 applies without distinction to the nationality of a perpetrator regardless of their location while committing of the act and afterward. What we can next address is whether the nature of Morocco’s continuing presence in the territory meets the Kampala definition of aggression.
4 A Contemporary Crime: Aggression in Western Sahara
Aggression is not limited to situations where a senior official directs the unlawful use force against another state. That aggression includes occupation and annexation is confirmed by the importance the organised international community places on territorial integrity and political independence as guaranteed by the UN Charter. When it comes to Western Sahara, Morocco’s first act of aggression lies in the past, beyond jurisdiction of Spain or any future proceeding in the icc. Only occupation and annexation remain available as continuing crimes after 2014 which feature aggression. Two things must therefore be established when pursuing aggression in Western Sahara. The first is the existence of a continuing occupation or annexation, or both. (The crime of intentionally denying self-determination to a non-self-governing people is considered in the next part.) Here, we must consider if occupation and annexation as acts that result in individual liability can possibly continue long after invasion and the first application of force. Have such continuing acts been overtaken by time and events to make acceptable and obviate criminal responsibility for Morocco’s presence in Western Sahara? A second matter is whether acts to sustain an occupation and pursue annexation meet the test of manifest or ‘aggregate seriousness’ under Article 8bis and Kampala Understandings 6 and 7.
Article 8bis is clear that occupation and annexation are separate from and do not depend on the continuing existence or first establishing individual responsibility for an unlawful attack and invasion. Article 8bis(2)(a) defines aggression as ‘invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof’. 90 The only common requirement is unlawful use of force to perpetuate each such act. This is consistent with the protection of the UN Charter by Article 8bis(1): Territorial integrity and the political independence of peoples. 91
Western Sahara is occupied by extensive deployment of police and army units. Since the 1980s when it finished the construction of a 2,400 kilometre long sand wall (the ‘berm’) to divide the territory from northeast to southwest now garrisoned by an estimated 60,000 soldiers, 92 Morocco’s presence in the territory has been total. 93 Morocco’s activities are routinely remarked upon by the Security Council and General Assembly, including annual reports of the Secretary-General to the Security Council, although all avoid the label of occupation. 94 Whatever its understanding of the status of the territory and commitments under the 1991 UN-sponsored ceasefire and referendum Settlement Plan, Morocco rejects its presence as being an occupation. Such a denial has no rejoinder, in other words, is not something that can be publicly rejected by the UN as interlocutor in Western Sahara. To declare Morocco’s hold on Western Sahara as an occupation would jeopardise the UN’s established role to oversee self-determination.
To recognize the applicability of the law of belligerent occupation to a given situation implies, politically speaking, two things: (1) the recognition that the territory is foreign land, and (2) the determination to respect the commitments of relevant international law. Such a decision may not be easy, but it has to be taken, for the sake mainly of the territory’s population. 95
The icj’s conclusions in the Western Sahara Advisory Opinion have therefore been omitted from reports and statements since the UN assumed responsibility to administer self-determination in the territory. What was judicial guidance to the General Assembly in its decolonisation mandate remains absent from annual resolutions on Western Sahara. 96 The Advisory Opinion also went unmentioned in the 1990–91 UN Security Council resolutions to define the Settlement Plan for a ceasefire and referendum. 97 An arguably missed opportunity to remark on the application of ihl to Western Sahara was Hans Corell’s 2002 opinion to the Security Council about mineral exploration in Western Sahara. 98 Corell had been asked to consider the legality of petroleum exploration permits issued by Morocco for Western Sahara’s seabed. His analysis was in the context of Western Sahara as a non-self-governing territory, and he concluded that ‘if further exploration and exploitation activities were to proceed in disregard of the wishes and interests 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’. 99 Corell made no reference to international humanitarian law, and offered no explanation why the territory should not be considered occupied. In contrast to the UN, however, African Union bodies have lately been outspoken about the application of international humanitarian law to Western Sahara. 100
Recent years have seen a return to Western Sahara being described as occupied. Such assertions have arguably resulted from Saharawi claims to territorial rights together with protests and legal proceedings against the export of resources from the territory. The sadr claimed sovereign rights to maritime zones on the Saharan coast including a territorial sea and exclusive economic zone defined in 2009 by national legislation. 101 In 2012 the Saharawi government, acting in the name of the Polisario Front, brought two cases in the European Court of Justice (now the Court of Justice of the European Union, cjeu) to annul an agreement between the European Union and Morocco for European fishing in Saharan waters and a second which had extended EU-Morocco free trade to Western Sahara. 102 Together with a third case in the United Kingdom in 2014 by a solidarity activist group later referred to the cjeu, the Court concluded Western Sahara is not part of Morocco, relying on the icj’s Western Sahara Advisory Opinion. 103 The reasoning of the UK High Court at first instance on the status of Western Sahara is notable, being more exhaustive than that of the cjeu later in the case (and those of the Polisario Front). It is usefully recalled in extenso:
Morocco may claim Western Sahara to be part of its sovereign territory but the international community generally and the European Union, in particular, does not recognise that claim. Indeed, the Western Sahara is one of the few pieces of disputed territory where a claim by a neighboring state to sovereignty has been examined by the International Court of Justice. In my judgment, Morocco’s claim to the territory must be based on:
- i) the pre-existing links before 1975 that it relied on [in] its submissions to the International Court; or
- ii) its November 1975 agreement with the former colonial power; or
- iii) its military occupation in December 1975; or
- iv) a free act of self-determination by the people of Western Sahara.
However, the first basis of claim was considered and rejected by the Court in its Advisory Opinion … The second and third bases would unambiguously conflict with the principles of the UN Charter. A colonial power cannot gift an unoccupied territory to a neighboring state for some reason of diplomatic advantage, particularly where it has been directed by the UN to supervise the process whereby the 72,000 odd people of Western Sahara should express their right to self-determination. Equally, unauthorised military occupation cannot found the basis for legitimate territorial claims. The fourth potential basis of sovereignty has not come to pass; despite long engagement by the UN no free expression of the will of the Saharawi people has yet been undertaken. 104
In its December 2016 appeal decision of the first of the Polisario Front cases, the cjeu observed the EU-Morocco Association Agreement could extend lawfully to Western Sahara if EU authorities if the Saharawi people consented to and benefitted from the treaty. 105 The cjeu has yet to apply ihl in the cases. 106
4.1 Western Sahara’s Occupation and Annexation: Character, Gravity and Scale
Morocco’s goal in occupying Western Sahara is clear and has for more than a decade been to incorporate the territory into Morocco. That objective can be seen in various acts and pronouncements. One is the berm: Its construction and operation has partitioned a territory in order to secure a tenuous presence toward pursuing a project of annexation. A second is the transfer into Western Sahara of people from Morocco. Pillage of the territory’s natural resources is a third. These and other features illuminate the gravity, scale and character of Western Sahara’s occupation and annexation. In this context, Kampala Understanding 6 can be recalled: ‘a determination of whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences …’. 107
When contemplating the acts of Western Sahara’s occupation and annexation is it helpful to identify alternative descriptions of gravity, scale and character. These characterisations can be respectively labelled as follows: (i) the colour of conduct in alleged violation of the UN Charter; (ii) the seriousness of Charter contraventions; and (iii) the extent of breaches, all realised by the use of force. Although the crime of aggression is concerned with the highest values of international peace and territorial integrity, the human consequences of aggression will reveal its gravity. Such things include deaths and injuries in conflict, especially among civil populations; the displacement of peoples as refugees and their non-return; the imposition of an aggressor state’s legal system on a population; and the denial and restriction of rights as found in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 108 Germany’s proposal during negotiations among Rome Statute member states underscores the consequences of aggression in Western Sahara and is helpfully set out at length:
Germany shares the view expressed by many delegations that an aggressive, large-scale armed attack on the territorial integrity of another state, clearly without justification under international law, represents the very essence of this crime.
It is submitted that, in light of the indisputable, undisputed and obvious historical precedents, one must above all consider those cases in which one State literally attempts to “take over” or to destroy another State or at least parts thereof with the assembled and well-prepared power of its entire military apparatus.
In light of such precedents, it appears that these cases of aggressive, large-scale armed attacks on the territorial integrity of another State, clearly without any justification under international law, share the following consequences:
- − Such attacks are of a particular magnitude and dimension and of a frightening gravity and intensity.
- − Such attacks regularly lead to the most serious consequences, such as extensive loss of life, extensive destruction, subjugation and exploitation of a population for a prolonged period of time.
- − Such attacks regularly pursue objectives unacceptable to the international community as a whole, such as annexation, mass destruction, annihilation, deportation or forcible transfer of the population of the attacked State or parts thereof, or plundering of the attacked State, including its natural resources. 109
In the context of such criteria of scale we can recall the International Court of Justice determined Morocco to have no territorial claim to Spanish Sahara. 110 Unlawful from the start, Western Sahara’s invasion had the hallmarks of what concerned Germany when it negotiated the crime of aggression. Invasion, however, is one thing, and in the case of Western Sahara the underlying act of aggression – a command or direction to unlawfully use force – is now beyond jurisdictional reach. We are left with aggression’s second and third acts, ones that continue today: Occupation and annexation. The question, after accepting that each is being achieved by unlawful use of force, is whether they fulfill the requirement of character, gravity and scale.
The evidence is clear that Western Sahara’s invasion and initial occupation vhas been transformed to a pursuit of objectives which are inimical to the organised international community: (a) incorporation of the territory and (b) a consequent denial of Saharawi self-determination. Such objectives turn on a sustained illegal occupation:
[A]n illegal occupation … rests on the violation of a peremptory norm that operates erga omnes and is innate to the existence of the occupation. Together these criteria create the “ius ad occupationem.” The principal situations that fulfill these criteria are the violation of the jus ad bellum and the violation of the right to self-determination, both as a corollary of the former and an independent ground related to the maintenance of the occupation. 111
Western Sahara as a case of occupation has been obscured by the ‘question’ of self-determination. The settled view of the organised international community is that colonial powers should not be described as being in occupation. Several things explain this. First, the norms that would define occupation and its obligations would only emerge some time after European colonisation in Africa (and elsewhere). Second, the characterising of colonial powers which continued in possession of non-self-governing territories to be an occupation create resistance among them to decolonisation in the context of Article 73 of the UN Charter and General Assembly Resolution 1514. Third, the concept of self-determination after 1960 would include the sovereignty of non-self-governing peoples by describing colonial powers as merely being in administration. Of course, the grand project of decolonisation was nearly complete when Western Sahara was invaded. However, it has remained necessary for the UN and the organised international community to approach Western Sahara as a case of transferred responsibility for self-determination. East Timor was the same. Both were expected to fade into history after their annexations became permanent.
The question when assessing aggression is therefore what makes for a continuing occupation. Is this ‘second’ crime of aggression, after attack and invasion, persisting today? Inexorably, because it is established that Morocco has no tenable claim to Western Sahara and is obligated to ensure the Saharawi people alone make a political disposition of the status of their territory, it follows that the territory remains under occupation. A status of being the object of decolonisation cannot displace that. Or, to express it in the reverse, no operation of law requires the Saharawi people to be exclusively treated as non-self-governing. Just as the UN Charter defines the international community’s highest values of territorial integrity and political independence, so the law confers responsibilities on that community that a condition of occupation persists while determination is to be realised. Occupation and self-determination are reconciled in the common point of sovereignty:
- (a) Sovereignty and title in an occupied territory are not vested in the occupying power. The roots of this principle emanate from the principle of the inalienability of sovereignty through actual or threatened use of force. Under contemporary international law, and in view of the principle of self-determination, sovereignty is vested in the population under occupation.
- (b) The occupying power is entrusted with the management of public order and civil life in the territory under control. In view of the principle of self-determination, the people under obligation are the beneficiaries of this trust. The dispossession and subjugation of these people violate this trust.
- (c) Occupation is temporary. It may be neither permanent nor indefinite. 112
Therefore, in Western Sahara’s occupation – accepting it presently continues – in alleging aggression we must examine the character, gravity and scale of Morocco’s presence under the threshold required by Article 8bis. Three indicia of these features must be necessarily established. The first is the extent of occupation. This is less a matter of territorial scope and more the degree of control, dispossession and subjugation of a local population. Such a factor is directed to the severity of how self-governance and societal institutions are impaired by occupation, together with material effects such as degradation of the economic and cultural life of an affected population. We can recall Germany’s criteria, above, at this point. The second feature to be made out is the degree of the occupying state’s unlawful conduct to maintain an occupation, including by violations of human rights and ihl. 113 A third factor is the duration of occupation. An originating act of aggression may be geographically limited to an incursion without much control of territory. In such a case the nature of an aggressor state’s presence may not rise to the level of a manifest breach because the consequences of temporary use of force are insubstantial. It is not the duration of occupation that makes aggression more serious but the degree to which a population is subjugated and impaired in a return to self-determination, i.e. political independence. ‘Duration alone is not a sufficient basis for adjudicating the lawfulness of the prolongation of an occupation …’. 114 These features of the scope of occupation are obvious in Western Sahara. A pronounced military and security presence continues to impede self-governance for the territory’s original Saharawi population. Violations of ihl and international human rights obligations, notwithstanding the absence of active hostilities and Morocco’s 1991 commitment to ensure self-determination, are well documented and undisputed. 115 Morocco’s presence and economic development in the territory has persisted for decades. More than manifest, the seriousness of Western Sahara’s occupation is an example par excellence of what is encompassed by such an act of aggression.
4.2 Aggression Today: Acts of Annexation
The annexation of Western Sahara into Morocco, incorporation as it may be called, as a third act of aggression is less tangible. The facts of a would-be or purported attempt to integrate the territory into Morocco are less evident, mutable in that they can be explained away as securing suitable conditions for a civil population or providing for economic development. Annexation would be rarely expected to be announced in bold terms. East Timor is again an example. The territory was held out as joining Indonesia by an act of consent of local representatives. 116
There is the additional problem of what amounts to annexation, i.e. of when discernible accrual of acts to incorporate an unlawfully held territory can be perceived. Must annexation be completed to an extent that acquired territory is subsumed in the aggressor state, to irreversibility? The acts of aggression which precede annexation – use of force for attack and invasion, and then occupation – can have temporal lines drawn about them, illuminating them as discrete events and therefore more readily identifying individual responsibility. But annexation is not like this, being a drawn-out political, legal and governance project of the occupying state. Its indicia are less overt, avoiding connection to the use of force necessary for liability to result under Article 8bis. Annexation will expectedly have difficulty meeting aggression’s test of character, gravity and scale. But it is annexation’s consequences that reveal its seriousness as an act of aggression: Annexation is intended to make permanent an unlawful occupation and eliminate the political independence of a subordinated people.
Annexation need not be complete, i.e. result in entire control, governance and integration (or displacement) of a population to result in violation of the UN Charter and Article 8bis. Iraq’s 1990 invasion of Kuwait is an example of an incomplete attempt at incorporation. Namibia’s occupation by apartheid South Africa is a second example. 117 The two cases demonstrate that responsibility for annexation begins when a territory’s integrity is eroded toward a loss of its existence and the identity of its people. The icj considered the prospect in the Palestine Wall Advisory Opinion:
Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature, it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation. 118
Annexation can therefore be described as a condition of perpetuated control achieved through force toward the result of denying sovereignty to a victim state or people and the goal of permanently acquiring territory. Annexation has a double-sided nature: For an aggressor state it is a project to subsume or integrate a territory into its metropolis. Evidence of this can be found on a continuum ranging from formal-legal to the practical-factual. The reverse aspect of annexation is that, for an occupied people, their dispossession and subjugation results in irreversible loss of territory and therefore political independence. For Western Sahara, when the 1991 Settlement Plan was agreed such a result was beyond the parties’ contemplation. Although occupation of the territory was then illegal, the Settlement Plan was obviously to avoid unilateral incorporation of the territory into Morocco. The parties’ stated commitments made this clear, including: (a) the assurance of Saharawi self-determination under Article 73 and UN General Assembly Resolution 1514; (b) maintenance of the territory’s status quo until a self-determination referendum was held; and (c) preservation of civil order and societal function leading up to a referendum. 119
The incidents of annexation in Western Sahara are no longer obscure. Its origins can be traced to Morocco’s construction of the berm during the 1980s. Physical partition of the territory was meant to secure it for Morocco. No other act has better defined the project of invasion and early occupation. The berm was not, in other words, a defensive structure but one to secure possession. Other equally significant acts of annexation followed, especially the resettlement of Moroccan nationals into the territory, the proven means for an occupier to achieve incorporation. 120 Article 49(6) of the Fourth Geneva Convention ought to apply: ‘The occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. 121 That such in-migration is passive, encouraged by an offering of employment, social and financial incentives, makes no difference to the application of ihl, as the icj observed in its Palestine Wall Advisory Opinion: ‘[Article 49(6)] prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organise or encourage transfers of parts of its own population into the occupied territory’. 122
At the formal end of a continuum of acts to incorporate Western Sahara into Morocco have been projets de loi, international treaties and official statements that implicitly repudiate the Settlement Plan. Among the first was Morocco’s 1997 legislation to define the Kingdom’s geographic regions. 123 A decree established 16 such areas, three of them in Western Sahara: (i) Oeud Ed-Dahab in the south; (ii) Laâyoune in the north extending into Morocco proper; and (iii) Guelmim – Es-Smara in the northern interior which also extended into southern Morocco. In 2015, the number of regions was reduced to 12, the latter two combined into the region of Laâyoune-Guelmim. Legislation to reinforce Western Sahara’s incorporation also includes a decree to establish a territorial sea and exclusive economic zone on the territory’s coast. 124 Morocco’s foreign minister remarked the decree would ‘cement the legal supervision of Morocco over those waters and bar the route to all allegations challenging Morocco’s sovereignty over that area’. 125 By contrast, in the international setting an identification of Morocco’s territorial claim has thus far featured only in a single treaty, a 2012 agreement with the European Union to extend operation of the 2000 EU-Morocco free trade Association Agreement to the territory. 126 Despite the cjeu’s decisions about Western Sahara, discussed above, the EU-Morocco arrangement continues with Western Sahara having the same tariff treatment as Morocco for imports to Europe. 127 Other treaties between Morocco and the EU that would expectedly provide for a territorial application, i.e. for particular economic and resource activities in Western Sahara, do not refer to the territory as such or its geographic area. Morocco’s fisheries agreements are an example of such an obscured description: The 2006 EU-Morocco Fisheries Partnership Treaty, which continues despite the cjeu’s judgments, avoided specifics by authorising EU vessels to fish ‘south of 29° N’. 128 (Western Sahara’s land frontier with Morocco extends west to the Atlantic coast on latitude 27° 40’ N having been defined by a French-Spanish colonial treaty. 129 ) Morocco has not asserted territorial rights to Western Sahara when joining multilateral treaties such as for environmental protection. 130
Recent statements of Morocco’s government have declared Western Sahara must remain part of the kingdom, in consequence of the ‘Southern Provinces’ being ‘recovered’ in 1975. The international relations stance of the foreign ministry is illustrated in a briefing note on the subject of the kingdom’s engagement with Russia:
Morocco has to … implicate Russia in activities in the Sahara, as is already the case in the field of fisheries. Oil exploration, phosphates, energy and touristic development are, among others, the sectors that could be involved in this respect … In return, Russia could guarantee a freeze on the Sahara file within the UN, the time [sic] for the Kingdom to take strong action with irreversible facts with regard to the marocanité of the Sahara. 131
Recent pronouncements of Morocco’s head of state, King Mohamed vi, eliminate any doubt about what is intended for Western Sahara. Routinely made on November 6 to mark the anniversary of Morocco’s so-called Green March of a column of civilians into Western Sahara in 1975, the King’s statement for 2014 is typical: ‘Morocco’s sovereignty extends over the entire area and will remain inalienable until the end of time’. 132 Morocco’s foreign minister, Nasser Bourita, expressed similar remarks after the Security Council approved an extension of the UN referendum mission in Western Sahara, minurso: ‘Some things are not negotiable for Morocco, namely that any solution would call into question the territorial integrity of the kingdom or that would provide for a referendum option’. 133 The United Nations understands this position, expressed in the Secretary-General’s annual report for 2018 to the Security Council:
On 6 November [2017], King Mohamed vi delivered an address to mark the forty-second anniversary of the Green March. He stated that Morocco remains committed to engaging in the political process in the current dynamic that I called for and to cooperating with my Personal Envoy. He indicated that the engagement of Morocco rested on [the] rejection of any solution other than the full sovereignty of Morocco over Western Sahara … Morocco would not sit by and wait for the desired solution to be found, but rather press ahead with its endeavors to promote development in ‘[its] southern region’. 134
Each act of annexation becomes more consequential when reinforced by another. The berm is an example, which ensures a continuing partition, and thereby ensuring an extraction of resources that supports an economy for an immigrant population. 135 Such acts are contrary to the Settlement Plan, which had been to assure a status quo toward a credible self-determination process. 136
5 A Fourth Evil? Denial of Self-determination
The crime of aggression was conceived in response to violation of the norms of international peace and Westphalian territorial integrity. Preventing and ensuring the accountability of senior officials of aggressor states for the violation of such norms in the UN Charter has been the goal of defining aggression in General Assembly Resolution 3314 and Article 8bis of the Rome Statute. It follows that the loss to a victim people of their political independence that results from illegal use of force should be a secondary concern. This is because the international order is a matter of restraining violence on victim peoples and apparently less the safeguarding and restoration of their political autonomy. What reconciles these disparate grounds for the crime of aggression is the essential quality of sovereignty. It is this Article 2 of the UN Charter is meant to secure by obligating states and individuals to respect the political independence of others. It follows that intentionally denying a non-self-governing, i.e. a colonised people, of their right to self-determination should expectedly be within aggression’s scope. Article 8bis’s threshold requirements are the starting point to examine whether this is so. However, the codification of the crime agreed at Kampala does not explicitly provide for denial of self-determination as a qualifying act. Certainly, the chapeau to Article 8bis casts a wide net over impugned conduct. The chapeau prohibits unlawful use of force ‘against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’. 137 However, Article 8bis(2)(a)–(g) arguably comprises a closed list of specific wrongful acts. Article 8bis(2) is silent about any aspect of the right to self-determination, whether in a colonial context or otherwise.
It is the reference in Article 8bis(2) to General Assembly Resolution 3314 that offers a first answer. Resolution 3314 has two provisions for a sufficiently codified rule, making it a crime for a senior official of state to direct the intentional denial of self-determination. The first provision is the Resolution’s preamble which affirms ‘the duty of states to not use force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity’. 138 Article 4 of Resolution 3314 contains the second provision. It declares that the Article 3 list of prohibited acts – adopted without change at Kampala as Article 8bis(2) of the Rome Statute – is ‘not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter’. 139 We can recall that the Resolution was not created to define aggression for criminal law purposes. It was, instead, intended as guidance for the Security Council. However, an open-ended defining of the crime was accepted at Kampala by the phrasing of Article 8bis(2) which signals the specific acts of 8bis(2)(a)–(g) are not a closed category. The crime of aggression can be manifested by acts ‘in any other manner inconsistent with the Charter of the United Nations’.
It must be noted that would-be aggression to intentionally deny a non-self-governing people a right to self-determination will rarely occur. Few Article 73 decolonisation cases remain. In practical terms, where there has been use of force, aggression can be simply identified by the fact of an unlawful invasion. It will not often be necessary to inquire into other acts along a continuum toward annexation. Article 8bis(2) has established a sufficient range of wrongful conduct with no more apparently needed in most future cases. A second limit to characterising the denial of self-determination as aggression is the problem of reading-in to the Article 8bis(2) canon. The principle of nullem crimen sine lege requires aggression be codified or at minimum understandable as a singularly wrongful act. 140 Article 73 of the UN Charter gives the necessary specificity: It confers a right and a corresponding obligation on states and individuals to ensure the self-determination of non-self-governing peoples. 141 Ranking next after Article 2 of the UN Charter which demands states conduct themselves peacefully, Article 73 imposes the obligation of ‘sacred trust’:
Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories and, to this end:
- (a) to ensure, with due respect for culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and protection against abuses;
- (b) to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement[.] 142
The basis in law for the organised international community to ensure Saharawi self-determination that results from Article 73 and Resolution 1514 is found in three sources. 143 The first was the expression of the icj in the Western Sahara Advisory Opinion. No one has suggested the Court’s conclusion of Saharawi self-determination to include a choice of independence was incorrect. A second legal source requiring assurance of Saharawi self-determination resulted from Morocco’s commitment to the November 1975 Madrid Accords to administer Western Sahara toward self-determination of the Saharawi people. 144 A third source of the duty for self-determination is the Security Council resolutions defining the 1991 Settlement Plan. It might be argued that Morocco’s 2007 autonomy plan has become a substitute, i.e. fulfils the requirements for self-determination. But self-determination in colonial settings must always include an option of independence. International law is sufficiently settled, that the right to exercise such option is understood universally as ‘inalienable’. 145
Even as the law is clear when it comes to self-determination in Western Sahara, we must avoid concluding what is an obligation on states to directly give rise to possible individual criminal liability. Although defined in customary international law and judicial decisions, breaching the right to self-determination is not sufficiently precise to meet the standard of nullem crimen sine lege. This is a problem if we are to conclude that denial of self-determination is by implication within the scope of Article 8bis. But no implication is needed. Article 8bis(2) is sufficiently codified because it prohibits acts of aggression that violate ‘political independence’. Denial of self-determination is the same thing: Violation of political independence. The agreement of what is aggression at Kampala was concerned with securing a peaceful international order and its adjunct, territorial integrity. Ensuring the sovereignty of peoples was therefore intrinsic to creating aggression as a crime.
However, an Article 8bis codification of denying self-determination as aggression results in at least one problem for decolonisation cases that arguably feature some use of unlawful force. The problem is demonstrated in the potential liability of senior officials of colonial states with Article 73 obligations where self-determination remains incomplete. Situations where colonial powers have delayed self-determination to allow consultative processes and plebiscites involving a territory’s population illustrate the problem, e.g. New Caledonia (France) and Tokelau (New Zealand). 146 The distinction between these cases and Western Sahara is the threshold for the crime of aggression: Unlawful use of force. Heads of state and government of decolonising states can lawfully direct the presence of armed forces units in a colonised, i.e. non-self-governing territory. However, where force is employed to deny self-determination, aggression will arguably begin. 147
The denial of self-determination, by itself, suggests a high degree of mens rea must be established through evidence attributable to the responsible senior official of state. Obstruction of self-determination may offer proof, and perhaps a deliberate creating of conditions where self-determination cannot be realised. East Timor and Namibia are examples because they were taken as irreversible until there was a wholesale change of political regimes in their aggressor states. The two cases suggest that denial of the right to self-determination does not have to be carried out to permanency, to a fait accompli. Various acts of purposive denial will suffice to establish violation of the Article 8bis(2) duty to respect political independence. In addition, statements of the ‘person effectively exercising control over or [directing] the political or military action’ to deny a people their self-determination would seem to qualify. 148 Acts and declaratory statements to obstruct self-determination are manifold in the case of Western Sahara. The proclamations of senior Moroccan officials, above, reveal the intention to block Saharawi political independence. Among the incidents of obstruction has been the refusal to accept a referendum or other UN-administered process that includes the choice of independence. The question is whether such acts have been in manifest breach of Article 73, i.e. if the character, gravity and scale of denial engage Article 8bis. 149 An unrealised Saharawi self-determination is a problem of exceptional magnitude. Western Sahara is a place where the right to self-determination is at its highest, confirmed judicially on several occasions and by explicit agreement of the parties. The Saharawi have been identified for more than 50 years by the UN as entitled to self-determination and assured realisation of the right under the Settlement Plan. 150 The passage of time since magnifies the wrongfulness of the denial. 151
6 Defences to Aggression in Western Sahara
It appears theoretically possible that the acts of senior Moroccan officials for aggression in Western Sahara are defensible. From the start, a claim of acting in Morocco’s self-defence, hardly tenable even in 1975, can be dismissed. Neither Mauritania nor Morocco ever articulated any threat from Western Sahara, while the Polisario Front is on record as accepting peaceful co-existence with Morocco. The Western Sahara Advisory Opinion disposes of any ambiguity of any assertion of self-defence: There could be no such interest by Mauritania or Morocco in a territory not theirs, and even less that could justify a long occupation. Mauritania would admit it had no claim to Western Sahara in its August 1979 peace settlement with the Polisario Front. 152 The 1991 Settlement Agreement obviates any suggestion by Morocco that it is required to remain in the territory. Of course, Morocco does claim ‘territorial integrity’ for refusing to accept a commonly understood act of Saharawi self-determination. But this is hardly self-defence of a recognised kind or which engages the UN Charter. This takes us to a first possible basis to exculpate senior Moroccan officials, namely, the passage of time to have arguably eliminated liability for the contemporary acts of aggression earlier described. As noted, liability for acts cannot extend any earlier than Spain’s 2014 receipt of the crime of aggression. Moroccan officials ostensibly responsible for aggression in the territory before that date must consequently escape responsibility.
A second possible defence is to be apparently found in the agreements that followed the Western Sahara’s invasion. They arguably include the following: (i) a permitted, continuing occupation by operation of the 1975 Madrid Accords; (ii) a tolerated presence or acceptance Morocco could remain under the 1991 Settlement Plan; and (iii) Saharawi acquiescence. None would – again, at a level of exculpating responsible individuals – have much prospect because of Western Sahara’s settled legal status and the established right of the Saharawi people to self-determination. However, the organised international community and UN tolerate Morocco’s presence in the territory in ways that incidentally support such would-be defences. Each may therefore be considered briefly.
The availability of the Madrid Accords as a defence for aggression in Western Sahara can be dismissed. The treaty was invalid from the outset as a matter of international law. Spain could not purport to transfer aspects of sovereignty over its colony to other states and continues – although formally – under international law to be responsible to ensure Saharawi self-determination. 153 Moreover, the Madrid Accords (perhaps with offending provisions severed) stipulated that Morocco had accepted the right of the Saharawi people to self-determination. It is also impossible for a state to contract with a colonial state to unlawfully use force to invade a non-self-governing territory for which the colonial state is responsible under Article 73 of the UN Charter. 154 Even if the Madrid Accords could justify an occupation-like presence, the treaty has been superseded by directions of the UN Security Council.
This brings us to the Settlement Plan as a possible defence to aggression, which arguably permits post-facto correction (or absolution) of Western Sahara’s invasion and occupation. The Plan operates on the basis that Morocco may remain present with armed force, and thereby implicitly in occupation, until the Saharawi people exercise self-determination. 155 The period until a self-determination referendum was originally agreed to be nine months after minurso was established in the territory. 156 The question is whether the Settlement Plan could transform, for purposes of aggression, what was unlawful into a tolerated act. Of course, the Settlement Plan could never be taken as excusing annexation. It has the objective of self-determination for the Saharawi people and, thereby, assuring the status of their territory. The Settlement Plan contains no provision to exculpate individuals from liability who, since 1991 (or after September 2014), have directed Morocco’s acts in Western Sahara. Because in recent years Moroccan officials have declared that they repudiate the Settlement Plan, it seems unavailable as a defence to them. In addition, the Plan itself has been violated by the denial of Saharawi self-determination. However, apart from Western Sahara, cases can be envisioned where an agreement transforms the status of the aggressor state to being responsible for ending occupation or delivering self-determination, or both. This brings us to the possibility of an official who has directed an unlawful occupation being absolved of criminal responsibility because he or she later became instrumental in ending it. This did not occur in East Timor and Namibia because officials of the aggressor states were succeeded by others who themselves decided the occupations of the territories were to end. It is unlikely that the decision of an aggressor state to end an unlawful occupation can obviate individual liability for aggression.
A defence of consent to the occupation of Western Sahara is also untenable. The defence seems possible because an agreed Settlement Plan provides that Morocco will remain in the territory as governing authority until the UN completes self-determination. However, the record of Saharawi assertions to sovereignty and rejection of Morocco’s claim to the territory is extensive. 157 Any consent to occupation would have to be on the basis of the Settlement Plan, with the Saharawi people (presumably through the Polisario Front) stating they accept Morocco’s presence including through force until a self-determination referendum. Two things dispose of any such acquiescence. The first is that Saharawi agreement has been for temporary arrangements toward an agreed outcome, i.e. a referendum. In other words, the Saharawi people accepted Morocco’s presence pending an elective choice of their political status. Second, if the Saharawi people cannot in law be taken as competent to consent to violations of ihl, a fortiori they cannot be concluded to have agreed to occupation. This deemed lack of capacity has two sources, the first being that the Settlement Plan could never operate in contravention of a peremptory norm of international law, i.e. the ongoing occupation of a non-self-governing territory. Consent in the context of the Settlement Plan cannot be taken to extend to unlawful acts. 158 The second source of law which ousts any possible Saharawi consent is Article 8 of the Fourth Geneva Convention:
Non-Renunciation of Rights
Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention … 159
In conclusion, there appear to be no defences to the continuing violation of Article 8bis in Western Sahara as the crime of aggression now applies under Spanish criminal law. The occupation and annexation of the territory violate Article 8bis and, by extension, obligations found in the UN Charter, along with the judicially determined status of the territory and obligations which Morocco has previously accepted.
7 An Acquis: The Lessons of Western Sahara
Aggression is properly called the supreme international crime. Its manifestation in Africa’s last colony is sufficiently notorious that the organised international community must, for diplomatic reasons, avoid it and engage Western Sahara as a case of decolonisation. All the same, aggression in Western Sahara offers lessons for the future cases. A first is that acts of perceived aggression pursued through the icc or the domestic legal systems of member states will encroach on the authority of the UN Security Council. This means impairing the role of the Security Council to respond to the use of force and resolve its aftermath. Western Sahara demonstrates the concern to be valid. What supports pursuing aggression through criminal law in parallel with a political process in the Security Council is the utility of the crime of aggression as a deterrent when the UN Charter order is threatened. A tension between crime of aggression-accepting states to act or the icc pursuing the crime, and the role of the Security Council to maintain international peace is not necessarily a bad thing. A second consideration for the future that is revealed by aggression in Western Sahara is that international humanitarian law is made more complete by codifying and enforcing the crime. There is now an established, actionable framework to prevent and punish unlawful use of force and subsequent singular acts such as occupation. The crime of aggression’s contribution to the development of ihl is to be found in deterring heads of state and government who would direct the use of force in violation of UN Charter norms. In addition, codifying aggression and therefore assigning the analysis of it to judges creates an additional means for ihl to be declared as applying to a conflict. Aggression by the decision of a senior state official to initially direct an unlawful use of force that violates territorial sovereignty occurs early in conflicts. Dealing with the crime at this stage by investigation and prosecution offers greater certainty and a more durable basis to invoke ihl. Western Sahara shows that in coming years only states will be in a position to exercise jurisdiction over aggression. Acceptance of the crime by states receiving it, i.e. through complementary adoption, only recently passed the 30% mark of icc members which is an annual average of four new subscribing states since Kampala. The question of cooperation among Rome Statute members in future cases could pose a problem for states that are debating whether to accept Article 8bis. Western Sahara illustrates the problem, by which Article 8bis joining states acquire jurisdiction over individuals from all states alleged to be responsible for aggression in their territories. States may not want such expansive ad personam jurisdiction.
Western Sahara is also useful for the assessment of prospective defences to aggression. As with the concept of command responsibility developed in the tribunals for the former Yugoslavia (the icty) and Rwanda (ictr), there will predictably be a defence of ‘insufficient exercise of control’ by an individual as a transitory or minor participant in directing ‘the political or military action of a State’. 160 Article 8bis(1) only narrowly captures responsible individuals at the highest levels of state who instigate and direct aggression. The resulting unlawful application of force must be shown as having been overseen at the level of a state. Together, the two amount to a jus ad bellum ‘whole of war’ threshold. This contrasts with the wide-ranging net cast over individuals responsible for more ordinary ihl violations. The ‘supreme international crime’ will be reserved for officials at the apex of national government and military direction.
A second defence brought into focus by Western Sahara is the gap between Article 8bis of the Rome Statute and the right to self-defence under Article 51 of the UN Charter. On the one hand, where self-defence is justified by Article 51 the crime of aggression will be excusable even if it results in an occupation of some duration. On the other, Article 8bis defines the circumstances when criminal liability begins to apply. A gap exists between the two, defined by the point where the use of force becomes unlawful. Recent examples of the use of force contrary to Article 8bis that have arguably not met the standard of manifest breach can be recalled, including the overreach of nato air interventions in Libya in 2011, and cruise missile strikes on alleged Syrian chemical weapons sites by the United States in 2017 and 2018. 161 The Article 8bis–Article 51 gap will be reconciled in the future cases by applying the Elements of Crimes and Kampala Understandings 6 and 7. The relevant test is manifest violation, to be established by the severity of an aggregate of character, gravity and scale of an impugned act. We can predict there will continue to be a range of unlawful use of armed force which falls short of individual criminal responsibility.
A further defence to the crime of aggression brought into focus by Western Sahara is the involvement of UN Security Council in situations that involve use of force. Security Council decisions can arguably relieve individuals of responsibility, by implicitly tolerating an occupation pending a negotiated or directed outcome. Such decisions are almost always directed to the conduct of states, and not often to individuals. The distinction reduces the effectiveness of the defence and therefore an originating act of aggression may remain a matter of prospective liability unless addressed or retrospectively eliminated by a decision of the Security Council. 162 This is the point where the Security Council’s regulation of state behaviour meets application of the crime of aggression to individual conduct. For the time being, given current cases listed in Part 2, it will be states alone who can pursue aggression. The icc will not soon acquire jurisdiction over such cases or perhaps emergent ones. As a result, states will continue to be uncertain about whether they should pursue aggression because of a concern that the Security Council should first determine if such conduct by a perpetrator state has occurred. This prospect shows how Security Council involvement in a situation of state-on-state aggression could diminish or delay pursuing aggression against the individuals responsible. The reverse is true, and it is where the Security Council pronounces that aggression has occurred such a determination may offer persuasive value for national courts with jurisdiction to pursue the crime. That will not be so for the icc because Article 15bis(9) ensures that a declaration of aggression by a body outside the Court ‘shall be without prejudice to the Court’s own findings’. 163
Aggression as the supreme international crime is fraught with questions of the political. This was demonstrated by the negotiations culminating at Kampala that contended with the degree of deference to be accorded to the Security Council and whether pursuit of the crime allows for expanded opportunity to invoke ihl in conflicts. Beyond the political, however, the crime of aggression as now defined applies without question in Western Sahara where the thresholds to pursuing it are amply revealed, including the fundamental international order provided for by the UN Charter. The law sometimes takes us to difficult destinations. For Western Sahara, that place has often been the political realm. For the crime of aggression, however, there is no more certain place in law than Western Sahara.
‘To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole’. International Military Tribunal (Nuremburg) Judgment of 1 October 1946, p. 25, <https://crimeofaggression.info/documents/6/1946_Nuremburg_Judgment.pdf>, accessed 4 January 2020. The Versailles Treaty, the Treaty of Peace with Germany ((28 June 1919) 2 Bevans 235 (in force 20 January 1920), provided at Article 227: ‘The Allied and Associated Powers publicly arraign William ii of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties’. For analysis of Versailles and its aftermath, see Kirsten Sellars, ‘Delegitimizing Aggression: First Steps and False Starts after the First World War’, 10 Journal of International Criminal Justice (2012) 7–40; and see William A. Schabas, The Trial of the Kaiser (Oxford University Press, Oxford, 2018).
Rome Statute of the International Criminal Court (17 July 1998) 2187 unts 90 (in force 1 July 2002) (Rome Statute). Charter of the United Nations (26 June 1945) 1 unts xvi (in force 24 October 1945) (UN Charter).
Application of ihl in Western Sahara has only rarely been considered by the United Nations and states. Resolutions of the UN General Assembly after the territory’s 1975 invasion and a 2017 South African court decision described the territory as occupied. A 2002 legal opinion for the UN Security Council about the exploitation of Western Sahara’s resources, discussed in Parts 3 and 4, did not refer to ihl.
The case of East Timor (Timor-Leste) is the most recently resolved instance of unlawful neighbor-state invasion, occupation and annexation of a non-self-governing people. There was never a suggestion, other than in political terms, that Indonesia’s 1975 invasion was an act of aggression. What the UN called the ‘question’ of East Timor was concerned with self-determination. This explains why the application of ihl in the territory from 1975 until 1999 was not apparently considered.
The matter of ‘originating responsibility’ for aggression in the invasion of Western Sahara is academic: No official directing the 1975 invasion who is possibly caught by application of Article 8bis of the Rome Statute remains alive.
Article 25 of the Rome Statute – Individual criminal responsibility – was amended at Kampala by the addition of Article 25bis(3) contained in Article 15ter(5): ‘In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position to effectively exercise control over or to direct the political or military action of a state’. Rome Statute, supra note 2. The governing phrase is ‘of a state’. Persons in command and leadership roles at sub-state levels, i.e. on the battlefield with command of activities amounting to aggression are immune from secondary liability, including by joint criminal enterprise, command responsibility, and aiding and abetting. The Article 25bis(3) restriction emerged from a 2006 working group meeting of states at Princeton. At first, the restriction was directed to the forms of secondary liability at Article 25(3)(a)–(d) and not the crime of genocide at subparagraph (e). However, by 2008, the restriction was total in proposed drafts for Article 25bis(3), contained in Article 15ter drafts. See Stefan Barriga and Claus Kreß, Crime of Aggression Library: The Travaux Préparatoires of the Crime of Aggression (Cambridge University Press, Cambridge, 2012) p. 496 (2006 Princeton Report). The Report observes: ‘There was widespread agreement that the use of the word ‘participates’ should be avoided in the definition of the conduct element … in order to avoid overlap with the forms of participation under article 25, paragraph 3, of the Rome Statute. Moreover, there was consensus among participants that aggression should be understood as a leadership crime. In this respect the view was expressed that the leadership clause [eventually in Article 8bis(2)] should refer to the ability to influence policy’. Ibid., p. 511, paras. 87–88. See also the 2006 ‘Proposed Chapeau Rewordings’ in respect of Article 8bis(2), ibid., p. 515. Jennifer Trahan observes that aggression is solely a leadership crime: see J. Trahan, ‘The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference’, 11 International Criminal Law Review (2011) 49–104.
This is not the case for secondary liability of third party actors for other ihl crimes in Western Sahara, e.g. aiding and abetting the war crime of pillage by assisting Morocco to develop and export natural resources. icc member states and Court itself have sufficient jurisdiction to pursue responsible individuals.
The development of the crime of aggression by the organised international community was continuous after the Second World War, as canvassed by Barriga and Kreß, supra note 6. In 1951 and 1954 the International Law Commission proposed codified definitions of aggression.
See UN General Assembly Resolution 2330 (xxii) 18 December 1967, ‘Need to expedite the drafting of a definition of aggression in light of the present international situation’. The impetus to define aggression does not appear to have emerged at this time from any single conflict or instance requiring Security Council intervention. However, there was a consensus that weapons of mass destruction demanded a wholesale response to prevent their use. The 1967 resolution created a committee of 35 states that met annually and presented a final report in 1974 with a definition of aggression adopted the same year.
See ‘Report of the Special Committee on the Question of Defining Aggression (25 April – 30 May 1973)’, UN doc. A/9019. By this point, aggression was being proposed to include the use of force ‘against the sovereignty, territorial integrity or political independence of another State’. Ibid., Appendix A. Self-determination had also been provided through permissible use of force in order to resist ‘alien domination’.
UN General Assembly Resolution 3314 (14 December 1974), Annex, ‘Definition of Aggression’ (Resolution 3314). See Article 3: ‘Any of the following acts, regardless of a declaration of war, shall ... qualify as an act of aggression: … invasion or attack … or any military occupation, or any annexation by the use of force …’. The 1970 Friendly Relations Declaration provides that the territory of a state must not be unlawfully occupied by use of force by another and that states must refrain from recognising the legality of territories acquired by ‘the threat or use of force’. ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’, UN General Assembly Resolution 2625 (24 October 1970). A first principle of the declaration is ‘that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations’. This principle holds that ‘[e]very State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence’.
On whether the 2010 codification departs from a customary international law definition of the crime of aggression, see Marko Milanovic, ‘Aggression and legality: Custom in Kampala’, 10 Journal of International Criminal Justice (2012) 165–187. ‘One indication that Article 8bis might be identical or narrower than custom is its requirement that the underlying act of aggression by its ‘character, gravity and scale’ constitute a ‘manifest’ violation of the UN Charter. The ‘manifest’ criterion in particular may serve the purpose of excluding from the definition any gray areas of the jus ad bellum’. Ibid., p. 183. For a post-Rome Statute discussion of whether a codification of aggression should follow the crime’s customary law development see Richard L. Griffiths, ‘International Law, the Crime of Aggression and Ius Ad Bellum’, 2 International Criminal Law Review (2002) 301–373; and Vimalen J. Reddi, ‘The icc and the Crime of Aggression: A Need to Reconcile the Prerogatives of the SC, the icc and the icj’, 8 International Criminal Law Review (2008) 655–686.
The Hague Convention (iv) Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (18 October 1907) 187 cts 227 (in force 26 January 1910) (Hague Convention). Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 unts 287 (21 October 1950) (Fourth Geneva Convention). See also Protocols i and ii Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977) at 1125 unts 3 and 1125 unts 609, respectively.
The so-called Kampala Amendments to the Rome Statute, discussed below, are: (a) Article 8bis, Crime of aggression; (b) Article 15bis, Exercise of jurisdiction over the crime of aggression (State referral, proprio motu); and (c) Article 15ter, Exercise of jurisdiction over the crime of aggression (Security Council referral). The amendments, agreed in 2010 at Kampala (as a review conference of Rome Statute member and non-member observer states), include Elements of the crime and ‘Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression’. Application of the amendments to the case of Western Sahara is discussed below. See infra note 33.
The similarity with East Timor is instructive: While both Western Sahara and East Timor would be declared by the UN General Assembly to be occupied, there was no assertion by UN agencies or interested parties that ihl (as Geneva-Hague Convention obligations, as they then were) should apply. ihl as a basis to identify and pursue individual criminal acts was not identified as applying, the two cases obscured by the perception of decolonisation.
See Frédéric Mégret, ‘Peering behind the ‘Institutional Veil’ to Assess State Behaviour in the Security Council: Does/Should icc Membership Make a Difference?’, 19 International Criminal Law Review (2019) 938–978.
As of 4 January 2020, 39 icc member states had accepted the Kampala aggression amendment, being one-third of icc member states and one-fifth of all states, representing about one-tenth of humanity.
This is the so-called ‘Article 15bis–Article 121 problem’. Article 121(4) provides that member states are bound by an amendment to the Rome Statute one year after ratification by a total of seven-eighths of member states. This should eventually result in the substantive crime of aggression at Article 8bis applying to all member states. However, Article 15bis(4) permits member states to declare they do not accept icc jurisdiction over the crime. But such states remain bound to adopt the crime in their domestic legal systems. For discussions of the problem, see Darin Clearwater, ‘When (and How) Will the Crime of Aggression Amendments Enter into Force?’, 16 Journal of International Criminal Law (2018) 31–63; and Andreas Zimmerman, ‘A Victory for International Rule of Law? Or: All’s Well that Ends Well?’, 16 Journal of International Criminal Justice (2018) 19–29.
Spain’s universal criminal jurisdiction and the restriction of such jurisdiction under 2009 and 2014 legislation is discussed in Part 3. No Rome Statute member states yet to accede to the Kampala Amendments are known to have enacted national legislation to adopt the crime of aggression. States acceding to Articles 8bis, 15bis and 15ter would expectedly prepare legislation in the year allowed after ratification for required implementation.
Article 15bis(5) Rome Statute, supra note 2: ‘In respect of a state that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory’.
In the region, only Cambodia and Thailand are member states of the Rome Statute. Neither has acceded to the Kampala Amendments: Articles 8bis, 15bis and 15ter. The Philippines withdrew from the Statute effective 17 March 2019.
Neither Israel nor Syria are member states of the Rome Statute. Israel’s presence in the Golan may not be an unlawful act of aggression, i.e. an occupation. It is claimed as defensive following the 1973 Arab-Israel war. In annual resolutions numerous states in the UN General Assembly characterise the Golan as occupied. See e.g. UN General Assembly Resolution 74/90, ‘The occupied Syrian Golan’ (13 December 2019), with 157 states in favour, two opposed and 20 abstaining.
Neither Ukraine or Russia are member states of the Rome Statute. However, because of the Crimea and eastern Ukraine conflicts, Ukraine put itself within the jurisdiction of the icc under Article 12(3) of the Rome Statute in respect of Statute crimes in its territory from 21 November 2013. No claim of aggression has been made to the Court. See International Criminal Court – Office of the Prosecutor, Report on Preliminary Examination Activities 2019 (5 December 2019) at pp. 66, <https://www.icc-cpi.int/itemsDocuments/191205-rep-otp-PE.pdf>, accessed 2 January 2020.
See Tom Ruys and Luca Ferro, ‘Weathering the Storm: Legality and Legal Implications of the Saudi-led Military Intervention in Yemen’, 65 International & Comparative Law Quarterly (2016) 61–98.
Successive UN Security Council Resolutions emphasised the ‘sovereignty, independence, unity and territorial integrity of Syria’. See e.g. Resolutions 2042 (2012) (14 April 2012) and 2401 (2018) (24 February 2018).
There appears never to have been a claim that the United Kingdom occupies the Chagos Islands in the formal sense of the word. See the arguments of Mauritius to the International Court of Justice in Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (Request for Advisory Opinion), ‘Written Statement of Mauritius’ (1 March 2018) pp. 251 et seq., <https://www.icj-cij.org/files/case-related/169/169-20180301-WRI-05-00-EN.pdf>, accessed 4 January 2020. Mauritius claims the islands have been subject to ‘unlawful colonial administration’.
The State of Palestine joined the Rome Statute on 2 January 2015 and acceded to the crime of aggression on 26 June 2016. As of January 2020 it was unclear if the government of Palestine had enacted legislation for jurisdiction over aggression.
The Oslo i (1993) and ii (1995) Accords permit Israeli military forces to be present in the West Bank and Gaza Strip. Arguably, the greater hurdle to pursuing the crime of aggression in Palestine is the arrangement for extensive cooperation between the two parties in the Accords. On the negotiation and legality of the Accords, see Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford University Press, Oxford, 2000). On the matter of Palestine’s accession to the Rome Statute and ihl jurisdiction, including by the icc in Palestine, see Yaël Ronen, ‘Israel, Palestine and the icc – Territory Uncharted but Not Unknown’, 12 Journal of International Criminal Justice (2014) 7–25. ‘In conclusion, so far as unga Resolution 67/19 recognized a state of Palestine, this state has territory, notwithstanding the lack of agreement on its borders … whether Israel is an occupant or some other type of de facto regime, it clearly does not claim to be sovereign in the territory at present’. Ibid., p. 16 and note 32. The icc Prosecutor has had the ‘situation’ in Palestine under examination since January 2015, an investigation that includes allegations of ‘settlement activities’ in the West Bank and East Jerusalem. See ‘Palestine’ in Office of the Prosecutor, supra note 23, pp. 53 et seq.
Article 2(4) of the UN Charter provides that: ‘The [UN] Organization and its Members, in pursuit of the Purposes [of the UN] stated in Article 1, shall act in accordance with the following principles … All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. UN Charter, supra note 2. During negotiations for the Rome Statute, Germany observed: ‘We share the view by many delegations that the armed attack on the territorial integrity of another State without any justification represents indeed the very essence of the crime of aggression. While criminal norms concerning genocide, war crimes and crimes against humanity aim at protecting human life or physical integrity, a provision on the crime of aggression protects basically the territorial integrity of states from flagrant and willful violations by means of war even if genocide, war crimes or crimes against humanity should not occur’. ‘1997 Proposal by Germany (December)’ in Barriga and Kreß, supra note 6, p. 234.
Article 8bis(2) Rome Statute, supra note 2, provides as follows: ‘2. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (xxix) of 14 December 1974, qualify as an act of aggression: a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c) The blockade of the ports or coasts of a State by the armed forces of another State; d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein’.
Article 73 UN Charter, supra note 2. The crime of denying self-determination of a non-self-governing people is discussed in Part 5.
‘The General Assembly [reaffirms] the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity’. UN General Assembly Resolution 3314, supra note 11, Preamble. Article 7 of the Resolution is relevant to Western Sahara because it has been referentially incorporated into the chapeau of Article 8bis(2): ‘Nothing in this Definition [of the crime of aggression], and in particular article 3 [i.e. the Resolution’s listed acts of aggression adopted as Article 8bis(2)], could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the [Friendly Relations Declaration 1970], particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration’.
The substantive codification of the crime of aggression is at Article 8bis and the corresponding Elements of the Rome Statute, supra note 2. Articles 15bis and 15ter are important to the operation of Article 8bis and therefore are part of aggression’s canon. The Kampala Amendments – Annexes i, ii and iii to the Kampala conference resolution on the crime of aggression – are collectively the three Articles, the Elements and Final Understandings known as the Kampala Understandings.
Rome Statute, supra note 2.
Consider the Elements of Crimes for the crime of pillage at Article 8(2)(e)(v) of the Rome Statute. A perpetrator must be shown to have: (a) appropriated certain property; (b) to deprive the owner of the property and appropriate it for private or personal use; (c) without consent of the owner; (d) ‘in the context of and associated with an armed conflict’; and (e) with awareness of the fact of an armed conflict.
Elements, Rome Statute, supra note 2. Element 1 of the crime of aggression also provides in a footnote that more than one person may fulfill the criterion of directing or controlling a state’s use of force.
Understanding 3, Jurisdiction ratione temporis: ‘It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later’. Articles 15bis(3) and 15ter(3) each provide that: ‘The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute’. See International Criminal Court Assembly of States Parties Resolution icc-asp/16/Res.5 (14 December 2017), para. 4: ‘The Assembly … renews its call upon all States Parties which have not yet done so to ratify or accept the amendments to the Rome Statute on the crime of aggression’.
In other words, the sovereign immunity of states is to be preserved when prosecuting aggression in national legal systems.
Kampala Understandings, supra note 33. Alain Pellet observes: ‘Granted, these Understandings, which are included in Annex iii to Resolution RC/Res.6 on the crime of aggression, are not part of the Statute and do not constitute hard treaty law. Yet, since Annex iii was adopted by consensus at the [2010] Review Conference, there is no doubt that the annex, along with the Understandings, is an ‘instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by other parties as an instrument related to the treaty’. As such, it forms part of the ‘context for the purpose of the interpretation’ of the Rome Statute as amended. It is inconceivable that the Court would not take Understandings 6 and 7 fully into consideration when interpreting Article 8 bis’. ‘Notes and Comments – Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills’, 109 American Journal of International Law (2015) 557 at p. 559.
Application of the three-part manifest test in the case of Western Sahara is considered below in Part 4.1.
Missile strikes in Syria are discussed by Monica Hakimi, ‘The Jus Ad Bellum’s Regulatory Form’, 112 American Journal of International Law (2018) 151–190. ‘The U.S. operation did not satisfy any of the accepted standards for justifying cross-border force. Syria had not consented to it, the UN Security Council had not authorized it, and it was not taken in self-defence. Further, it did not look like a typical humanitarian intervention … Most commentators claimed that the U.S. action in Syria was unlawful because it could not plausibly be justified under the general standards [of jus ad bellum.]’ Ibid., p. 153. Such a conclusion is consistent with the bare prescription of Article 8bis(2)(b) which prohibits ‘bombardment … or the use of any weapons by a State against the territory of another State’.
On the application of ihl to Western Sahara see Christine Chinkin, ‘Laws of Occupation’, in N. Botha et al (eds.), Conference on Multilateralism and International Law with Western Sahara as a Case Study, Pretoria, South Africa (4 and 5 December 2008) 196; see also Ben Saul, ‘The status of Western Sahara as occupied territory under international humanitarian law and the exploitation of natural resources’, 27 Global Change, Peace and Security (2015) 301–322; see further Pål Wrange, ‘Self-Determination, Occupation and the Authority to Exploit Natural Resources: Trajectories from Four European Judgments on Western Sahara’ 52 Israel Law Review (2019) 3–29; and see Jeffrey J. Smith, ‘International Law and Western Sahara’s Maritime Area’, 50 Ocean Development & International Law (2019) 117–141.
Several resources are exported from Western Sahara, phosphate mineral rock and fisheries having the greatest value. Others include agricultural products, sand and salt. Petroleum in the territory and its Atlantic Ocean seabed continues to be prospected for. The development and export of resources reveals problems of applying ihl and Article 73 self-determination law to Western Sahara. Article 33 of the Fourth Geneva Convention prohibits pillage. The right of a non-self-governing people to sovereignty over their natural resources, originating in Article 73 and UN General Assembly Resolution 1803, ‘Permanent sovereignty over natural resources’ (14 December 1962) requires consent of and benefit to a non-self-governing people to the extraction of resources in their territory. The UN Human Rights Committee expressed the right as follows in its 2016 periodic country review report about Morocco: ‘[Morocco] should … enhance meaningful consultations with the people of Western Sahara with a view to securing their prior, free and informed consent for development projects and resource extraction operations’. unhrc, ‘Concluding observations on the sixth periodic report of Morocco’ (1 December 2016) UN doc. ccpr/C/mar/CO/6, para. 10.
UN General Assembly Resolution 3292 (xxix) (13 December 1974) requested an advisory opinion from the International Court of Justice about the following questions: ‘I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?’ And, if not: ‘ii. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?’.
See Mauritano-Sahraoui Agreement (10 August 1979), annex to UN doc. A/34/427 (also known as the Algiers Peace Treaty signed 5 August 1979 between the Polisario Front and the Islamic Republic of Mauritania). The UN General Assembly afterward declared Morocco’s presence in Western Sahara to be an occupation, in a resolution that ‘deeply [deplored] the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently occupied by Mauritania’. ‘Question of Western Sahara’, UN General Assembly Resolution 34/37 (21 November 1979).
Western Sahara Advisory Opinion, icj Reports 1975, 12, para. 162.
UN General Assembly Resolution 1514 (xv) (14 December 1960), ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’.
Saharawi Arab Democratic Republic and another v. The owners and charterers of the MV ‘NM Cherry Blossom’ and others, 31 zaecphc 31 (15 June 2017), para. 40 (the NM Cherry Blossom case). In February 2018 the court confirmed the sadr’s title to the cargo, i.e. ownership.
For a discussion of Spain’s treatment of the question of Western Sahara after 1975, see Juan Soroeta Liceras, International Law and the Western Sahara Conflict (Wolf Legal Publishers, Oisterwijk, 2014).
As of 4 January 2020, 137 states had signed the Rome Statute, with 122 ratifications. Morocco signed the Rome Statute on 8 September 2000. It has no publicly stated policy about ratification.
icc jurisdiction over aggression, whether by Security Council referral or ex mero motu, can only under Articles 15bis and 15ter be exercised for acts that occur one year after acceptance or ratification of the Kampala Amendments by 30 states. The triggering date for an ‘aggression event’ was therefore 29 June 2017, following Palestine’s accession as 30th state on 29 June 2016.
Paragraph 4 of the Preamble to the Rome Statute provides that ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level …’. Annual resolutions of the icc Assembly of States are emphatic about complementarity. That for 2018 is typical: ‘[The Assembly] recalls the primary responsibility of States to investigate and prosecute the most serious crimes of international concern …[The Assembly] resolves to continue and strengthen, within the appropriate international fora, effective domestic implementation of the Rome Statute …’. Resolution icc-asp/17/Res5 (12 December 2018) paras. 122–123, <https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/Res-5-ENG.pdf>, accessed 2 January 2020.
The current application of Spanish criminal law in Western Sahara in historic and contemporary cases is discussed below.
Portugal continued to assert colonial responsibility for East Timor after 1975, although never the application of its laws to the territory. When the UN transitional administration (untaet) was created in 1999 it decreed that Indonesian law would continue to apply to East Timor subject to overriding norms of international human rights law.
Article 64, Fourth Geneva Convention, supra note 13.
Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 2d edition (Oxford University Press, Oxford, 2008), p. 286. ‘That the occupying power is bound by the existing national system is clearly laid down in Article 43 [of the Hague Regulations]’, ibid.
Audiencia Nacional, Auto N° 40/2014 (Sala lo penal – Pleno) (4 July 2014).
Spain’s 2009 and 2014 amendments to its Judicial Power Statute, Ley Orgánica del Poder Judicial – the ‘lopj’ – are discussed below. See latterly Organic Law 1/2014 of 13 March amending Organic Law 6/1985 of 1 July on Judicial Power, boe 63, 14 March 2014, 63 at 23026 (2014 lopj).
Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, UN doc. S/2002.161 (12 February 2002) (Corell Opinion), and Affaire A.C. et autres v. Espagne, European Court of Human Rights, Arrêt 22 avril 2014 (Requête n° 6258/11). For an account of the Gdeim Izek incident, see Robert F. Kennedy Centre for Justice and Human Rights, Western Sahara: Accounts of human rights abuses persist in wake of November unrest, January 2011, <http://www.rfkcentre.org>, accessed 4 January 2020.
Audiencia Nacional, Sumario 1/2015, Auto (9 April 2015).
Ibid., p. 7. The court observed that from 1975 through 1991 – the period of the allegations in the case – Morocco ‘systemically attacked the Saharawi civil population’. Ibid., translation by the author.
Spain enacted legislation in an effort to formalise its November 1975 decision end responsibility for Western Sahara. See Ley 40/1975, de 19 noviembre, de Descolonización del Sahara, B.O.E. no. 278 de 20 de noviembre de 1975. ‘The only article in the Law of Decolonization shortly pointed out that the Government was authorized to act and adopt the necessary measures to decolonize the Sahara, guarding Spanish interests, and that the Government would inform the Parliament’. Soroeta Liceras, supra note 49, p. 153, note 443.
On Spain’s ratification of the Rome Statute, see Ley Orgánica 6/2000, de 4 de octubre, por la que se autoriza la ratificación por Espanã del Estatuto de la Corte Penal Internacional, boe 239 de 5 de octubre 2000, 34138. Spain legislated its cooperation with the icc in 2003. See Ley Orgánica 18/2003, de 10 de diciembre, de Cooperación con la Corte Penal Internacional (boe-A-2003–22715).
Statement of Spanish representative Garcia Labajo, Rome Conference, 19 June 1998, in Barriga and Kreß, supra note 6, p. 271.
See ‘Note – Spain: Ratification – Amendment to Article 8 of the Rome Statute of the International Criminal Court’, UN doc. C.N.639.2014.treaties-xviii.10.a (Depositary Notification) (25 September 2014). ‘The amendment will enter into force for Spain on 25 September 2015 in accordance with article 121, paragraph 5 of the Rome Statute …’. Of the states which have acceded to the crime of aggression, a majority of them in Europe and Latin America, no permanent member of the Security Council has done so. See supra note 51.
In force 18 September 2014 by publication in the Boletin Oficial del Estado 227 de 18 septiembre de 2014.
Ley Orgánica 5/2014, de 17 septiembre, ibid., Preamble, translation by the author.
Rome Statute, supra note 2, Article 121(5).
See Article 1 of Spain’s Penal Code, Ley Orgánica 10/1995, de 10 de noviembre, del Código Penal, boe-A-1995–25444 (Penal Code): ‘No act or omission will be punished that is not provided for as an offence by law prior to its perpetration’. Translation by the author. Cf. the Kampala Understandings, above, in which the icc would itself acquire aggression jurisdiction one year after a thirtieth state ratification of the 2010 amendments.
Constitución Española (31 October 1978) (in force 27 December 1978), <https://www.lamoncloa.gob.es/espana/leyfundamental>, accessed 2 January 2020.
Article 96, translation by the author. Article 96(1) additionally stipulates: ‘[The provisions of treaties] may only be repealed, suspended or amended in the manner provided for in the treaties themselves or in accordance with the general rules of international law’.
Ley Orgánica 5/2014, supra note 67. Article 81(1): ‘Organic acts are those relating to the implementation of fundamental rights and public freedoms, those approving the Status of Autonomy and the general electoral system and other laws provided for in the Constitution’, translation by the author.
Supra note 66.
Ley Orgánica 5/2014, supra note 67. On the reception of international treaties into the Spanish legal order, see Antonio Marín López, ‘Orden Jurídico Internacional y Constitución Española’ 45 Revista de Derecho Politico (1999) 35 and Juan José González Rivas, La interpretación de la Constitución por el Tribunal Constitucional: Commentario sistemático de la Constitución (Civitas, Madrid, 2011).
José Elías Esteve Moltó, ‘The ‘Great Leap Forward’ to Impunity: Burying Universal Jurisdiction in Spain and Returning to the Paradigm of Human Rights as ‘domaine réservé’ of States’, 13 Journal of International Criminal Justice (2015) 1121, p. 1123.
This was an amendment to the lopj, supra note 58 and not Spain’s Penal Code. See Organic Law 1/2009 of November, complementary to the Reform of Procedural Codes Act implementing the new judicial office, which amends Organic Law 6/1985 of 1 July on the Judiciary, boe 266 of 4 November 2009, 92.
Esteve Moltó, supra note 75, p. 1126.
Ibid., p. 1128, and see Auto, Audiencia Nacional, 30 March 2010, Juzgado Centrale de Instrucción no. 2, 63/2008.
Organic Law 1/2014 of 13 March, which amends Organic Law 6/1985 of 1 July on Judicial Power (i.e. the lopj), boe 63, 14 March 2014, 63 at 23026.
Ibid., Article 25(5).
Esteve Moltó, supra note 75, p. 1132.
Supreme Court, Criminal Court [Division], Ruling 592/2014, 24 July 2014, appeal 1205/2014.
Esteve Moltó, supra note 75, p. 1142.
Spain’s ‘criminal law order shall correspond with Spanish jurisdiction [over] the knowledge of the causes of crimes and offences committed in Spanish territory …’. Article 24(1) lopj, supra note 58, translation by the author. The remainder of Article 24(1) provides such jurisdiction applies ‘without prejudice to international treaties in which Spain is a party’.
lopj, ibid., Article 24(4), translation by the author.
Ibid., Article 24(4)(d), translation by the author.
Article 24(4)(g) also provides for jurisdiction over alleged terrorism against aircraft and ships registered in Spain, and acts committed against the Spanish state, and institutions and organisations of the European Union.
Article 24(4)(p), translation by the author.
Rome Statute, supra note 2.
As acts that ‘constitute a manifest violation of the Charter of the United Nations’: Article 8bis(1).
The berm was constructed in stages between 1981 and 1988 from northeast to southwest. An accurate map is available from the UN High Commission for Refugees, ‘Western Sahara Atlas Map’ (February 2006), <www.unhrc.org/publications/maps/453f1b104/western-sahara-atlas-map-june-6006.html>, accessed 2 January 2020. The berm extends a short distance through Mauritania, not shown on some maps of Western Sahara including ones published by the UN. The estimate of troop numbers is the author’s from field observations and interviews from 2010 through early 2019.
Article 42 of the Hague Regulations, supra note 13, is relevant: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army’. ‘It necessarily follows as a corollary that any actual control by one state over the territory of another state brings with it the obligation to respect the law of belligerent occupation. In other words, if the armed forces of a state actually control foreign territory, that state cannot evade the obligations established by international law towards this territory and its inhabitants’. Fleck, supra note 56, p. 274.
See e.g. UN Security Council, ‘Report of the Secretary-General on the situation concerning Western Sahara’ (29 March 2018), UN doc. S/2018/277.
Fleck, supra note 56, p. 276.
See e.g. UN General Assembly resolutions titled ‘The Question of Western Sahara’: A/res/73/107 (7 December 2018); A/res/72/95 (7 December 2017); A/res/71/106 (6 December 2016); A/res/70/98 (9 December 2015); and A/res/69/101 (5 December 2014).
There is no single instrument which defines the agreement to a self-determination referendum for the Saharawi people or the UN’s responsibility to administer a referendum. The terms of the so-called 1991 Settlement Plan are contained in two reports of the UN Secretary-General adopted by the UN Security Council: (a) UN doc. S/22464 (19 April 1991) and (b) UN doc. S/21360 (18 June 1990). See also UN Security Council Resolutions 621 (20 September 1988), 658 (27 June 1990) and 690 (19 April 1991). ‘[S]ole and exclusive responsibility for the organisation and conduct of the referendum is vested in the United Nations’. UN doc. S/22464 (19 April 1991), para. 9.
Corell Opinion, supra note 59.
Ibid., para. 25.
See Communiqué of the African Union Peace & Security Council (27 March 2015), AU psc doc. psc/PR/comm/1.(cdxcvi). The statement did not address Western Sahara’s status, but noted the right of the Saharawi people to self-determination and called on the UN Security Council ‘to address the issue of the illegal exploitation of the Territory’s natural resources’. Ibid., para. 11. And see African Union Commission, ‘Legal Opinion’ (undated – October 2015), <https://au.int/sites/default/files/newsevents/workingdocuments/13174-wd-legal-opinion-of-the-auc-legal-counsel-on-the-legality-of-the-exploitation-and-exploration-by-foreign-entities-of-the-natural-resources-of-western-sahara.pdf>, accessed 2 January 2020. The Opinion noted ihl and Article 73-Resolution 1803 obligations apply to Western Sahara’s resources. ‘Morocco has no legal right under the UN Charter and international law to occupy or govern the Territory of Western Sahara’. Ibid., para. 57.
sadr Law No. 03/2009 of 21 January 2009 Establishing the Maritime Zones of the Saharawi Arab Democratic Republic. In a letter dated 5 March 2016 to the UN Secretary-General, the Saharawi government published the geographic coordinates of its claimed territorial sea and exclusive economic zone, along with a map. The letter has not been published by the UN. A copy is available from the author.
The Polisario Front brought the cases because it was thought the Court would reject them in the name of the sadr. The first case, in 2012, challenged the EU Council decision to extend operation of the EU-Morocco free trade agreement (the Association Agreement) to Western Sahara. Judgment in the first case was initially given (i.e. first instance) in December 2015 and on appeal to the Grand Chamber of the Court on 21 December 2016. The Grand Chamber concluded that the Polisario Front should not have brought the case because international law is clear that Western Sahara is not part of Morocco and therefore no treaty action by the EU could include the territory. See Frente Polisario c. European Council 2016 cjeu 973 (21 December 2016). The same result was obtained at first instance in the Court in a challenge brought in 2014 to the application of the EU-Morocco Fisheries Partnership Agreement to the coastal waters of Western Sahara. See Frente Polisario c. European Council 2018 cjeu 496 (19 July 2018).
The case by Western Sahara Campaign U.K. was brought in the United Kingdom High Court for judicial review of the UK government allowing the import without tariffs on goods from Western Sahara and without requirement to account for the origin of the goods. In 2015 the High Court concluded that the case was required to be referred to the cjeu. See Western Sahara Campaign United Kingdom v. Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for Environment, Food and Rural Affairs UK (Request for a preliminary ruling under Article 267 tfeu from the High Court of Justice), Judgment of the Grand Chamber in Case C-266/16, 2018 cjeu 118 (27 February 2018) (the Western Sahara Campaign UK case). The result in the cjeu was identical to that in the 2016 and 2018 Polisario Front cases, except that terms of an order to define permissible future UK government action were referred by the cjeu back to the UK High Court.
Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for the Environment, Food and Rural Affairs, 2015 ewhc 2989 (UK High Court) (19 October 2015), para. 40. This analysis of the status of Western Sahara was adopted by the South African High Court in the NM Cherry Blossom case, supra note 48, para. 41.
‘[T]he people of Western Sahara must be regarded as a ‘third party’ within the meaning of the principle of the relative effect of treaties … As such, that third party may be affected by the implementation of the Association Agreement in the event that the territory of Western Sahara comes within the scope of that agreement, without it being necessary to determine whether such implementation is necessary to harm it or, on the contrary, to benefit it. It is sufficient to point out that, in either case, that implementation must receive the consent of a third party. In the present case, however, the judgment under appeal does not show that the people of Western Sahara have expressed any such consent’. Frente Polisario v. European Council 2016 cjeu 973 (21 December 2016), para. 106.
During a 2016 visit to the Saharawi refugee camps in Algeria and the liberated area of Western Sahara then UN Secretary-General Ban-ki Moon described the territory as occupied. ‘UN chief regrets Western Sahara ‘occupation’ comment’, Al Jazeera, 29 March 2016, <https://www.aljazeera.com>, accessed 2 January 2020.
Kampala Understandings, supra note 33.
International Covenant on Civil and Political Rights (16 December 1966) 999 unts 171 (in force 23 March 1976) (iccpr); International Covenant on Economic, Social and Cultural Rights (16 December 1966) 993 unts 3 (in force 3 January 1976) (icescr). Common Article 1 of the treaties is recalled on the subject of Saharawi self-determination: ‘1(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 1(3) The States Parties to the present Covenant, including those having responsibility for the administration of non-self-governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provision of the Charter of the United Nations’.
Barriga and Kreß, ‘2000 Proposal by Germany’, supra note 6, p. 368. Emphasis in original.
Neither Mauritania nor Morocco asserted self-defence under Article 51 of the UN Charter or otherwise as justification to enter Spanish Sahara. Spanish decolonisation or withdrawal from the territory presented no material defence or security risk to either state. See Tony Hodges, Western Sahara: The Roots of a Desert War (Lawrence Hill, Westport, 1983) pp. 174 et seq.
Yaël Ronen, ‘Illegal Occupation and Its Consequences’, 41 Israel Law Review (2008) 201, p. 210. Ronen adds, ‘The list of norms is not exhaustive. There are other potential grounds for the illegality of an occupation, such as the violation of jus in bello in the course establishing the occupation …’. Citation in footnote omitted.
Orna Ben-Naftali, Aeyal M. Gross and Keren Michaeli, ‘Illegal Occupation’, 23 Berkley Journal of International Law (2005) 551, p. 555, citations in footnotes omitted. The approach to sovereignty advocated by the authors is not that of post-colonial self-determination, i.e. obligations to non-self-governing peoples, but more expansively in the context of Article 1(2) of the UN Charter, namely, ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples …’. The idea that occupation imposes a fiduciary obligation on an occupying power to ensure a local population’s well-being is problematic. The authors derive the norm in part from the Separate Opinion of Judge Koroma in Legal consequences of the construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, icj Reports 2004, 136 (Palestine Wall Advisory Opinion). See paragraph 2 of the Separate Opinion. Western Sahara’s 1991 Settlement Plan provides indirectly that the parties must respect human rights obligations in the territory. On the convergence of international human rights law and ihl in occupation, see Aeyal M. Gross, ‘Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?’, 18 European Journal of International Law (2007) 1.
The agreed process for self-determination process of the Saharawi people has arguably been violated, i.e. the Settlement Plan which requires Morocco to maintain conditions for a credible self-determination referendum. Settlement Plan, supra note 97 and notably the UN Secretary-General Report of 18 June 1990, para. 47(g): ‘The United Nations will monitor other aspects of the administration of the Territory, especially the maintenance of law and order, to ensure that the necessary conditions exist for the holding of a free and fair referendum’.
Valentina Azarova, ‘Towards a Counter-Hegemonic Law of Occupation: On the Regulation of Predatory Interstate Acts in Contemporary International Law’, 20 Yearbook of International Humanitarian Law (2017) 113, p. 124. Azarova notes: ‘Critically, the length of time an Occupying Power can lawfully maintain effective control over the occupied territory often hinges on the reasons for its sojourn in the territory, the manner in which it instructs its administration of the territory, and the policy provisions it maintains on the rights and future of its population’. Ibid.
See Robert F. Kennedy for Justice & Human Rights, ‘Western Sahara Visit – Preliminary Observations – Summer 2012’ (4 September 2012); US Department of State, ‘Western Sahara 2017 Human Rights Report’; Robert F. Kennedy Human Rights et al., ‘Report on the Kingdom of Morocco’s Violations of the International Covenant on Economic Social and Cultural Rights in the Western Sahara’ (August 2015), <https://tbinternet.ohchr.org/Treaties/CESCR/SharedDocuments/MAR/INT_CESCR_CSS_MAR_21582_E.pdf>, accessed 2 January 2020.
On the 1976 integration of East Timor into Indonesia see Government of Australia – Department of Foreign Affairs and Trade, Australia and the Incorporation of Portuguese Timor, 1974–1976 (Melbourne University Press, Melbourne, 2000), pp. 723–792.
The icj noted ‘South Africa, being responsible for having created and maintained a situation which the Court has been found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States’. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, 16, para. 118 (1970 Namibia Advisory Opinion).
Palestine Wall Advisory Opinion, supra note 112, para. 121.
These factors are adopted from Michael Lynk, UN Special Rapporteur for Palestine. See ‘Situation of human rights in the Palestinian territories occupied since 1967’ (23 October 2017), UN doc. A/72/43106. Lynk suggests a four-part test of lawful occupation, namely: (i) the belligerent occupier cannot annex any of the territory; (ii) the occupation must be temporary, and neither permanent nor indefinite; (iii) the occupier must act in the best interests of the people under occupation; and (iv) the occupation must be administered in good faith and in compliance with international law.
In addition to the UN Charter and an agreement for self-determination of the territory’s people, there is the erga omnes responsibility of states to support Saharawi self-determination. Pursuing an irreversible incorporation, attempted by Indonesia in East Timor, is the greatest impediment to post-colonial self-determination.
Population transfers to and from an occupied territory are prohibited under Article 49 of the Fourth Geneva Convention, supra note 13 and its analog provision, Article 8(2)(b)(viii), of the Rome Statute, supra note 2. Article 49(6): ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’.
Palestine Wall Advisory Opinion, supra note 112, para. 120.
Décret n° 2-97-246 du 12 rabii ii 1418 (17 août 1997) fixant le nombre des régions, leur nom, leur chef-lieu, leur ressort territorial et le nombre de conseillers à élire dans chaque région ainsi que la répartition des sièges entre les divers colleges electoraux et la répartition entre les préfectures et provinces du nombre des sièges revenant aux collectivités locales.
Projet de décret no. 2.17.349 (July 2017) purports to extend Moroccan waters including a territorial sea and eez to the coast of Western Sahara. A map said to illustrate this area does not accompany the published decree. The decree was accompanied by two statutes to modernise Morocco’s ocean jurisdiction legislation which also remain pending; Projet de loi no. 37–17 and Project de loi 38–17. The legislation is available on the Moroccan government website, <www.sgg.gov.ma/ProjetsTextesDiffusesMembresGouvernement.aspx>, accessed 2 January 2020. For analysis, see Smith, supra note 42. In December 2019, the legislation – enacted in January 2020 – was discussed in a Moroccan parliamentary committee, resulting in concern expressed by political parties in the Canary Islands. See e.g. ‘Le Maroc se confronte à l’Espagne au sujet des eaux entourant les îles Canaries’, Mahgreb Online, 20 December 2019, <https://www.moroccomail.fr/2019/12/20/le-maroc-se-confronte-a-lespagne-au-sujet-des-eaux-entourant-les-iles-canaries/>, accessed 2 January 2020.
‘Domain maritime: Le Conseil de gouvernement adopte deux projets de lois’, Huffington Post Maroc, 7 July 2017, <www.huffpostmaghreb.com/2017/07/07/loi-domaine-maritime-_n_17422798.html>, accessed 2 January 2020. Morocco has, for more than two decades, issued seabed petroleum permits (‘reconnaissance’ licenses) for the Saharan offshore, discussed in the Corell Opinion, supra note 59.
The EU Council’s decision to extend operation to Western Sahara of the 2000 EU-Morocco Association Agreement through a Liberalisation Agreement was the subject of the Polisario Front’s first challenge in the cjeu, supra notes 102 and 105.
For analysis of the perceived neeed for EU institutions to continue with trade arrangements that include Western Sahara, see European Commission, ‘Commission Staff Working Document: Proposal for a Council Decision’, Brussels, 11.6.2018, swd (2018) 346 final (Report on benefits for the people of Western Sahara and public consultation on extending tariff preferences to products from Western Sahara – Joint report by the Commission and the European External Action Service), <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018SC0346&from=EN>, accessed 2 January 2020.
EU-Morocco Fisheries Partnership Agreement (26 July 2006) Official Journal L141 (29/05/2006) 4 (in force 28 February 2007) (the fpa). Operation of the fpa in Western Sahara’s waters should have ended following the cjeu’s judgment of February 2018 in the Western Sahara Campaign UK case, supra note 103. In July 2018 the EU and Morocco ‘initialed’ a ‘Sustainable Fisheries Partnership Agreement’ which will enter force after enabling legislation is enacted.
Convention between France and Spain respecting Morocco, 3 October 1904, 102 British and Foreign State Papers 432. The treaty created the northern boundary of Western Sahara with Morocco and the territory’s southern boundary with Mauritania. The inland (north-south) boundary with Algeria and Mauritania was negotiated in 1912: Treaty between France and Spain regarding Morocco (27 November 1912), (1913) 7 American Journal of International Law (Supplement) 81.
In 2007 Morocco ratified the UN Convention on the Law of the Sea, claiming ‘territorial rights’ over the Spanish possessions of Ceuta, Melilla and small islands on its north coast. See Morocco, ‘Declaration upon ratification’ (31 May 2007), <www.un.org/Depts/los/convention_agreements/convention_declarations.htm>, accessed 2 January 2020.
Morocco, ‘La Fédération de Russie et la Question du Sahara Marocain’ (undated), translation by the author, <www.arso.org/Coleman/Note_Russie_Saharacorrige.pdf>, accessed 2 January 2020. Morocco did not contest the validity of the leaked documents. See ‘Chris Coleman: le government dénonce finalement une campagne <enragée>’, TelQuel, 12 December 2014; ‘L’étrange <Wikileaks> marocain’ Le Monde, 4 January 2015; ‘Un hacker ne peut déstabiliser à lui tout seul la monarchie marocaine’, Le Monde, 6 January 2015.
‘Moroccan King: Western Sahara will remain under our sovereignty’, memo – Middle East Monitor, 7 November 2014, <https://www.middleeastmonitor.com/20141107-moroccan-king-western-sahara-will-remain-under-our-sovereignty/>, accessed 2 January 2020. King Mohamed vi added, ‘Morocco’s sovereignty cannot be held hostage to any ideologies or political ideas, trends and stereotypes from within the international community’.
‘Bourita: “Morocco’s Territorial Integrity is Non-Negotiable”’, Morocco World News, 3 November 2018, <https://www.moroccoworldnews.com/2018/11/256867/morocco-western-sahara-nasser-bourita/>, accessed 2 January 2020.
‘Report of the Secretary-General on the situation concerning Western Sahara’ (29 March 2018), supra note 94, para. 11.
For analysis of population transfer into Western Sahara and the territory’s resulting demographic composition, see Jacob Mundy, ‘Moroccan Settlers in Western Sahara: Colonists or Fifth Column?’, 15 Arab World Geographer (2012) 95–126. There is also the problem of a confused or marginalised identity for the Saharawi that has resulted from settlement in the territory manifested in efforts to assert the Polisario Front is not their representative organisation. See e.g. UN Fourth Committee proceedings of June 2017, UN doc. A/AC.109/2017/SR.4, pp. 5/12 et seq.
Settlement Plan, supra note 97. Arguably, Morocco repudiated the Settlement Plan by adopting its 2007 autonomy plan for Western Sahara. ‘Unlawfully prolonged occupations are no different from outright annexation or other forms of aggression that may amount to so-called ‘crimes against peace’. Since the very presence of such occupying states in the occupied territory presents a threat to the indigenous civilian population of the territory, the principal task of international law is to eliminate such unlawful situations through restitution of the occupied territory to the status quo ante bellum, incumbent on both the occupying power and the international community’. Azarova, supra note 114, p. 136, citations omitted.
Rome Statute, supra note 2.
UN General Assembly Resolution 3314, supra note 11.
Ibid.
Article 22(2), Nullem crimen sine lege, of the Rome Statute, supra note 2, is recalled: ‘The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted’.
For a discussion of the erga omnes nature of self-determination in Western Sahara, see Lauri Hannikainen, ‘The Case of Western Sahara from the Perspective of Jus Cogens’, in Karin Arts and Pedro Pinto Leite (eds.), International Law and the Question of Western Sahara (ipjet, Leiden, 2007) 59.
UN Charter, supra note 2.
UN General Assembly Resolution 1514, supra note 47. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, icj Reports 2010, p. 403, para. 79: ‘During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation’.
Declaration of Principles (Tripartite (Madrid) Accords (Mauritania/Spain/Morocco)) (14 November 1975), 14 ilm 1512; (1976) 80 Revue Générale de Droit International Public 380.
Self-determination of non-self-governing peoples is arguably the most settled subject of peremptory norms, reinforced by its nature as obligatio erga omnes. More than any other principle applicable to the ‘question’ of Western Sahara, it is the right of self-determination which the Saharawi people and the UN are unable to relinquish in the face of Morocco’s insistence on sovereignty over the territory. The argument goes that the Saharawi can be no more competent in law to waive the right than they are under ihl to accept violations of the Fourth Geneva Convention. ‘In subsequent years, the General Assembly maintained its approach to the question of Western Sahara, and reiterated in more pressing terms the need to consult the wishes of the people of the territory as to their political future … All these resolutions from 1966 to 1973 were adopted in the face of reminders by Morocco and Mauritania of their respective claims that Western Sahara constituted an integral part of their territory. At the same time Morocco and Mauritania assented to the holding of a referendum. These States, among others, alleging that the recommendations of the General Assembly were being disregarded by Spain, emphasised the need for the referendum to be held in satisfactory conditions and under the supervision of the United Nations’. Western Sahara Advisory Opinion, supra note 46, paras. 64–65. ‘The adoption of resolution 1514 (xv) of 14 December 1960 represents a defining moment in the consolidation of State practice on decolonization … The Court recalls that, while the exercise of self-determination may achieved through one options laid down by resolution 1541 (xv) [including emergence as a sovereign independent State], it must be the expression of the free and genuine will of the people concerned’. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, supra note 26, paras. 150 and 157.
In 1987 nouveau Caledonians voted against independence from France in a referendum and again in November 2018 under the 1998 Nouméa Accord, for which see France’s Organic law no. 99–209 of 19 March 1999. The Accord provides for a referendum in 2020 and again in 2022. The General Assembly has expressed support for this exercise of self-determination. See UN General Assembly Resolution 74/106, ‘Question of New Caledonia’ (13 December 2019).
It would be useful to identify non-self-governing territories as those listed by the UN General Assembly in the exercise of its decolonisation mandate and perhaps subject to Security Council resolutions that confirm self-determination to apply. However, such a declaratory role could pose problems, for example in cases of decolonisation resisted by UN member states for such listing in order to avoid the later characterisation of aggression. The case of the Chagos Islands in the British Indian Ocean Territory, part of Mauritius before that state’s independence, illustrates the problem: Should the UN General Assembly now list the Territory as a non-self-governing entity subject to Article 73 decolonisation? If so, could it be contended that the military presence in the Islands (at Diego Garcia) is present in order to deny the right of self-determination?
Article 8bis(1) Rome Statute, supra note 2.
‘As to the general consequences resulting from the illegal presence of South Africa in Namibia, all States should bear in mind that the injured entity is a people which must look to the international community for assistance in its progress towards the goals for which the sacred trust was instituted’. 1970 Namibia Advisory Opinion, supra note 117, para. 137.
1991 Settlement Plan, supra note 97. See also UN General Assembly Resolution, ‘Question of Ifni and Spanish Sahara’ 2229 (20 December 1966) inviting Spain ‘as the administering power to determine at the earliest possible date … the procedures for the holding of a referendum under United Nations auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination …’. Ibid., para. 4.
‘The right to self-determination is generally accepted as a peremptory norm; it operates erga omnes and is likely to go to the core of the territorial status. The violation of the right may be implicated in the very creation of an occupation, as a corollary on the probation on the use of force: its breach is an illegal use of force looked at from the perspective of the victimized people, rather than from that of the victimized state or territory … the violation of the law of occupation is ultimately a violation of the law of self-determination’. Ronen, supra note 111, pp. 207–208.
Mauritano-Sahraoui Agreement, supra note 45.
Juan Soroeta Liceras identifies several grounds of invalidity of the ‘Madrid Agreements’ including being ‘radically null … because their purpose was to deprive a people of its right to self-determination’, supra note 49, p. 137. ‘On 14 December 1975, a Declaration of Principles on Western Sahara was concluded in Madrid between Spain, Morocco and Mauritania (the ‘Madrid Agreement’), whereby the powers and responsibilities of Spain, as the administering Power of the Territory, were transferred to a temporary tripartite administration. The Madrid Agreement did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power, a status which Spain alone could not have unilaterally transferred. The transfer of administrative authority over the Territory to Morocco and Mauritania in 1975 did not affect the international status of Western Sahara as a Non-Self-Governing Territory’. Corell Opinion, supra note 59, para. 6.
‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law. For purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. Article 53, Vienna Convention on the Law of Treaties (23 May 1969) 1155 unts 331 (in force 27 January 1980).
‘Morocco has undertaken to reduce its troops in the Territory to a level not exceeding 65,000 all ranks, within a period of 11 weeks from the coming into effect of the ceasefire on D-Day. I have accepted this as an appropriate, substantial and phased reduction in accordance with the settlement proposals’. Report of the Secretary-General, UN doc. S/22464 (19 April 1991), supra note 97, para. 14.
Ibid., para. 52.
See e.g. Letter of Polisario Front Secretary-General Brahim Ghali to UN Secretary-General Antonio Gúterres, 13 November 2017 (protesting seabed exploration in Saharan waters); Letter of Polisario Front Secretary-General Md. Abdelaziz to UN Secretary-General Ban-ki Moon, 5 March 2016 (illustrating claimed Saharawi-sadr maritime areas); and Letter of Polisario Front Minister-Counsellor for Europe Md. Sidati to EU Fisheries Commissioner Maria Damanaki, 16 November 2010 (protesting renewal of the operative Protocol to the EU-Morocco Fisheries Partnership Agreement) (letters on file with the author).
The problem of the 1991 Settlement Plan as a treaty that conflicts with peremptory norms of international law is remedied by Article 75 of the Vienna Convention on the Law of Treaties, supra note 154: ‘The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State’s aggression’. ‘Article 75 contemplates acts that purport to bring into being new obligations for a State having committed an aggression’. Christian Tomuschat, ‘Article 75 – Convention of 1969’, in Olivier Corten and Pierre Klein (eds.), The Vienna Convention on the Law of Treaties: A Commentary, Vol. ii (Oxford University Press, Oxford, 2011) 1686, p. 1690.
Fourth Geneva Convention, supra note 13. See International Committee of the Red Cross, ‘Commentary of 1958’, <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=89C89870954BA3D1C12563CD0042A897>, accessed 2 January 2020.
Neither the Rome Statute (including the Elements of Crimes) nor any complementary national legislation to establish the crime of aggression including Spain’s define ‘extent of control’, ‘direction’ or other concepts of the scope of head of state responsibility. Article 28 of the Rome Statute, on the extent of command responsibility, is not usefully applied in reverse analogy. ‘The first [element to constitute criminality] must be actual knowledge that an aggressive war is intended and that if launched will be an aggressive war. But mere knowledge is not sufficient to make participation even by high-ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy’. United States Military Tribunal (Nuremburg) v. von Leeb and 13 others (Case No. 72, the German High Command Trial), xii Law Reports of the Trials of War Criminals (October 1948), p. 68: <https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-12.pdf>, accessed 2 January 2020.
See Hakim, supra note 41 for a discussion of the use of force in Syria.
Article 15bis(6)–(8) of the Rome Statute provides that in apprehended aggression situations the icc Prosecutor must ascertain if the UN Security Council has concluded aggression to have occurred and allow the Security Council six months to make the determination. Rome Statute, supra note 2.
Ibid.