Equipo Nizkor Urgent Solidarity Derechos

Two Saharawis have been handed over to Morocco by Spanish authorities after having been detained in the Canary Islands.

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February 22, 1999

The undersigned organizations have learnt from a press release dated February 13, 1999 and issued by the Association of Solidarity with the Saharawi People, of the Canary Islands (Asociacion Canaria de Solidaridad con el Pueblo Saharaui), that the Saharawi citizens MOHAMED CHIGALI and ABDALLAH RUH have been handed over by the Spanish authorities to the Moroccan authorities. According to the above mentioned association, the event occurred on February 4, 1999, although other sources place it between February 7 and 8, 1999. Both of them are sons of Saharawis who held the Spanish nationality by the time Spain abandoned the territory.

Description of facts:

Mohamed Chigali was born in Argub (Western Sahara) in 1967. His father served as sergeant (RE) in the Spanish army. Mohamed had been living in the Saharawi refugee camps between 1976, a little after the Moroccan invasion, and 1996, when he moved to Mauritania. He arrived in the Canary Islands on May 21, 1998, holding a Mauritanian passport and a Saharawi DNI (Identification Card).

Abdalluh Ruh had lived in Dajla (Occupied Territories) until 1989. The repression policy implemented by Morocco as occupant country forced him to escape to the refugee camps, where he lived until 1996. Afterwards, he moved to Mauritania. He would have arrived in the Canary Islands in 1998 holding a Mauritanian passport and a Saharawi DNI.

Both Saharawi citizens, who had been residing in the Gomera Island for a while, were detained in Santa Cruz de Tenerife by the beginning of February. They were handed over to the Moroccan authorities on February 4, 1999, according to the Association of Solidarity with the Saharawi People, of the Canary Islands. We have also had access to versions that place the handing over in the border between Melilla (Spain) and Morocco between February 7 and 8, 1999.

We are not dealing with an isolated incident, because this type of acts have occurred in the past. When Spain abandoned the territory of Western Sahara, the Spanish authorities handed over to Morocco the police records in their custody. In 1984, the Spanish government handed over the Saharawi citizen Masaud Mohamed Fadel Laarusi to the Moroccan authorities; Masaud Mohamed was at that time in Spain receiving a pilot training. He was imprisoned for several months by the Morroccan authorities in the Kenitra prison, where he was subjected to all types of torture and ill treatment. In 1995, another Saharawi, Hamad Ali Hamad, right after having taken refuge in the Spanish embassy in Rabat, was handed over to the Moroccan authorities under certain supposed guarantees that were never respected, because, inmediately after, he was imprisoned and tortured. Equally, in 1998, the Saharawi citizen Yamal Dah Mohamed was taken from Las Palmas de Gran Canarias to Melilla and handed over to the Moroccan police in the border, despite the fact that he was in possession of the documentation that proved his Saharawi condition.

Legal Foundations:

Given the existing, and also accepted, situation of belligerency between the Kingdom of Morocco and the Saharawi Arab Democratic Republic, represented by the Polisario Front, we are dealing with a flagrant violation of international humanitarian law, in particular of the Geneva Coventions' provisions that prohibit the taking of civil population as hostages (Article 3.1.b) of Convention IV), and therefore, the handing over of any person to the other opposing party within the conflict, which is the Occupant Power in this case. The handing over of these Saharawi citizens, sons of Spanish nationals, on the part of the Spanish authorities to the Moroccan authorities, would be equal to the handing over of a British citizen, in times of World War II, on the part of a non belligerent third country to the German authorities.

At the same time, this act constitutes a clear violation of the United Nations Convention Relating to the Status of Refugees of 1951, that came into force in Spain on November 12, 1978. According to Article 1.A.2) of this Convention, the term 'refugee' shall apply to-- in relation with Article I.2 of the 'Protocol Relating to the Status of Refugees', which was approved by the UN General Assembly on December 16, 1966 (that came into force in Spain through BOE No. 252, October 21, 1978)-- any person "who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

Article 33.1 of the Convention states: "No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Considering this all, and taking into account that there are objective and conclusive elements which enable us to affirm that any Saharawi citizen aprehended by the Moroccan authorities is in a real danger, it is clear that such citizens could never be returned or handed over to Morocco. And this is so as a result of the application of the international law principle known as 'non refoulement' (prohibition of expulsion or return).

On the other hand, it is useful to remember that the Kingdom of Morocco has recently decided to formalize the status of the UN High Commissioner for Refugees (UNHCR) in the territory.

Also, Spanish legislation, in particular Article 107.3 of the Real Decreto ('Royal Decree') 155/96 dated February 2, 1996 (through which the implementing regulation of the 'Ley Organica de Extranjeria' -basic law and statute affecting individual rights and duties, approved by Parliament, giving legal effect to the Constitution; in this case in relation to the alien status- was passed), provides: "If the possibility to proceed to the execution of the expulsion becomes not feasible because of the fact that the foreigner can not be returned either to his country of origin or to any other (in this case, such a country, in accordance with Article 33 of the said Convention, could never be Morocco), his stay or residence in Spanish territory could be authorized, as provided in Articles 46 and 50 of the present regulation".

Requested actions:

Please, contact the Spanish governmental authorities urging them to:

1. Carry out an exhaustive investigation into the events and proceed to the depuration of the responsabilities -whether of criminal nature or of any other kind- of all those who issued the necessary orders that resulted in these Saharawi citizens's handing over to Morocco, knowing that both of them came from a belligerent country which has been recognized as such by Morocco and the United Nations and that both of them were holding a Mauritanian passport. And this is so in accordance with the Geneva Conventions and other International Humanitarian Law provisions.

2. Activate the necessary diplomatic channels in order to ensure the respect of these Saharawi citizens' individual guarantees, looking after, at all times, their physical and psychological integrity and laying great stress on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, whose violation constitutes a systematic practice on the part of the Moroccan security bodies and forces.

3. Instruct the Spanish consular authorities urging them to proceed, through the necessary diplomatic channels, to the verification of MOHAMED CHIGALI and ABDALLAH RUH's state of health, providing them with all they need (legal, medical and economic assistance).

4. Proceed to the recognition of the damage caused by the Spanish government, adopting all necessary legal and diplomatic measures in order to repair this wrong doing and coordinating with the UNHCR and the Polisario Front authorities MOHAMED CHIGALI and ABDALLAH RUH's way out of Morocco.

5. Adopt all necessary measures to garantee that similar situations will never occur again.

Contact also the Moroccan Authorities urging them to:

1. Guarantee at all times the physical and psychological integrity of MOHAMED CHIGALI and ABDALLAH RUH, abiding in all circumstances by the provisions of the Convention against Torture, which has been ratified by the Kingdom of Morocco, and respecting, in any case, the minimum standard that must be applied to civil population in the hands of any belligerent, as established in Article 3 common to all four Geneva Conventions.

2. Proceed to MOHAMED CHIGALI and ABDALLAH RUH's immediate return, safe and sound, coordinating through the UNHCR and the Polisario Front authorities their way out of Morocco, which must be done within the framework of equal conditions that the Geneva Conventions confer to all belligerent parties.

3. To recall that in accordance with the Convention against Torture, all those public officials found responsible for the commission of such practices must be brought before justice.

Send faxes and letters to:

A) List of Spanish Authorities:

B) List of Moroccan authorities:

Electronic edition by Nizkor International Human Rights Team. Madrid, March 7, 1999

Human Rights in Morocco

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