PUSL.- The Scientific services of the German Bundestag confirmed in the report “International law aspects of the Western Sahara conflict” dated March 2019 that Morocco occupies Western Sahara and violates the 4thGeneva Convention, namely articles 85 and 49 and article 8 of the Rome Statute referring to the transfer of Moroccan settlers into the occupied territories of Western Sahara, which constitutes a War Crime. The crime committed is described but its not applicable since Morocco didn’t rectify the Rome Statute.
“It can thus be stated that the Moroccan government’s settlement policy of its own nationals in the Western Sahara region violates Article 85 (4)in conjunction with Art. 49 parag. 6 of the IV Geneva convention and, at the same time, a violation of the prohibition on the transfer of part of one’s own population to occupied territories, which is standardized in Art. 49 parag.6 of the 4th Geneva Convention and also established under customary law.”
The report confirms that article 8 of the Rome Statue is also violated:
“A violation of Article 8 (1) lit. b) viii) Alt. 1 of the Rome Statute. This international criminal law penalizes the “direct or indirect transfer by the occupying power of part of its own civilian population to the territory it occupies” as a war crime.”
An individual criminal liability of Moroccan decision-makers according to this standard can only be considered if the Rome Statute is also applicable to Morocco. Morocco however signed the Rome Statute in the year 2000 but never ratified it, since the Kingdom is aware of its violations and the legal consequences.
The scientific services of the German Bundestag support the members of the German Bundestag in their mandate-related work, this report was published and is online.
MP’s are vastly aware of the legal status of Western Sahara, the illegal occupation by Morocco and the decisions of the Court of Justice of the European Union (CJEU).
The rullings of the CJEU are clear in the fact that exploitation of natural resources of Western Sahara and their commercialization without the consent of the Saharawi Population are illegal.
Nevertheless, several German enterprises pursue commercial activities in the occupied territories and benefit from the exploitation of natural resources at the expense of the Sahrawi population. One of these enterprises is Siemens (Siemens Gamesa) that is participating in Moroccan wind power projects that take place in this region.
A study published in Berlin by the NGO Facing Finance documents 27 companies that operated in occupied and annexed territories (Western Sahara, Crimea and the Occupied Palestinian Territory) and thereby risk supporting acts that violate international law.
The report identifies 15 German financial service providers and associated asset managers that provide €11.8 billion in loans, issued bonds in the order of €12.4 billion, holding shares worth €19 billion and bonds worth €1 billion in these companies. The supply of finance accounts for around 55% of the identified financial relationships, which demonstrates that German financial service providers do not only profit from business activities in occupied and annexed territories that contravene international law, but also foster them.
It seems that the report of Scientific services of the German Bundestag is not enough for the German enterprises to put an end to their commercial association and financial support of the occupation of Western Sahara by Morocco.
None of this is new, in the Country Reports on Human Rights Practices for 2018 – Western Sahara, the Bureau of Democracy, Human Rights and Labor of the US Department of State also confirmed that Morocco is committing and ongoing of the Practice Relating to Rule 130 of International Humanitarian Law: Transfer of Own Civilian Population into Occupied Territory, which constitutes a War Crime.
The report states:
“As an inducement to relocate to the territory, workers in the formal sector earned up to 85 percent more than their counterparts in internationally recognized Morocco. The government also provided fuel subsidies and exempted workers from income and value-added taxes.”
The number of Moroccan settlers is expected to rise further given the advancement of new construction in the occupied territories but also due to the economic incentives offered by the Moroccan government, as confirmed in both in the Bundestag report and in the report of the US State Department.
A central feature of the Moroccan settlement policy in Western Sahara has been the gradual takeover and designation of land undertaken through various measures, including the declaration of “state land”, impunity of takeover of Saharawi housing and land by the settlers, and encouragement of economic activities in the occupied territories.
The social, economic and political apartheid the Saharawi population suffers has been vastly documented by PUSL over the years, as well the continues protests of young Saharawi demanding employment.
Practice Relating to Rule 130. Transfer of Own Civilian Population into Occupied Territory
Geneva Convention IV
Article 49, sixth paragraph, of the 1949 Geneva Convention IV provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Additional Protocol I
Article 85(4)(a) of the 1977 Additional Protocol I provides that “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a grave breach of the Protocol.
Under Article 8(2)(b)(viii) of the 1998 ICC Statute, “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts.
- Other Instruments
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 22(2)(b) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind considers “the establishment of settlers in an occupied territory and changes to the demographic composition of an occupied territory” as an “exceptionally serious war crime”.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Under Article 20(c)(i) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “[t]he transfer by the Occupying Power of parts of its own civilian population into the territory it occupies” is a war crime.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(viii), “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts.
 Rome Statute of the International Criminal Court, Art. 8(2)(b)(viii).