Diversion of food and medicine in the Tindouf Camps

By African Bulletin on November 1, 2015

By Shoji Matsumoto

Recently, it is revealed by some official reports that even food and medicine destined to the Tindouf Camps have been diverted by some Polisario members and Algerians officials. So, what are its legal effects? An answer is found in the ICC Statute. It defines ‘extermination’ as ‘crime against humanity.’ ‘Extermination’ includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.
Now the deprivation of access to food and medicine in the Tindouf Camps is established. If any effective measures are not taken to prevent it, such failure with knowledge of its circumstances may be deemed as ‘calculated to bring about the destruction’. Then, those individuals who are responsible for the distribution of food and medicine may be punished under ICC’s universal jurisdiction, so long as any national justice system does not exercise its jurisdiction over the diversion.
In accordance with the Statute, a person may be responsible for punishment if that person commits a crime against humanity, if that person orders, solicits or induces the commission of such a crime which in fact occurs or is attempted, or if that person aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission for the purpose of facilitating the commission of such a crime.
Another answer is found in the Draft Articles on the Responsibility of States. First, a State assumes responsibility for any internationally wrongful action or omission committed within its territory, even if committed by private persons. Second, within or without its territory, a State assumes responsibility for any such act committed by its State organs. A State which aids or assists another State in its commission of a wrongful act is also responsible for doing so if done with knowledge of the circumstances.
Then, even a third State would be entitled to invoke the responsibility of another State to take measures to ensure cessation of the breach in the interests of such beneficiaries as the population in the Tindouf Camps.
Since Polisario is not an entity as judged from international law, and since the recognition of the so-called SADR is legally a wrongful and unlawful act, politically against the constructive role of the Security Council in encouraging negotiation between parties to find a political solution to the regional dispute over the Sahara, the international community have the duty to call Algeria to assume its responsibility as the host and sponsoring State of Polisario.
Overpaid surplus may form a hotbed for diversion. Besides, the implementation of census is a precondition to “humanitarian assistance,” which “must be provided in accordance with the principles of humanity, neutrality and impartiality,” according to a General Assembly Resolution in 1991.” Such assistance alone may be in favor of “a just, lasting and mutually acceptable solution” of the Western Sahara conflict.

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