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V. Constraints on the ERC

Impunity

Morocco has obligations under international law regarding past abuses.  These include ensuring that those responsible for serious violations are identified and brought to justice.  Authoritative U.N. and regional human rights bodies, as well as international criminal tribunals, have established that there should be no amnesties from prosecution or similar measures for serious human rights abuses.  The U.N.’s Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity states, in Principle 24:

Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: (a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligations to which Principle 19 refers or the perpetrators have been prosecuted before a court with jurisdiction – whether international, internationalized or national – outside the State in question.

These Updated Principles define the phrase “serious crimes under international law” to include, among others, genocide, crimes against humanity, and “other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.”²⁹

Human Rights Watch recognizes the potential of truth commissions to ensure the emergence of the truth about past abuses. However, suspected perpetrators of gross violations must also be brought to justice and their responsibilities determined in a court of law.  Even if the ERC succeeds in producing an exhaustive and definitive account of the repression that was practiced during the period from 1956 and 1999, and even if it provides compensation and rehabilitation to the victims, it cannot, by itself, end the impunity that the perpetrators of past human rights abuse in Morocco continue to enjoy.  The ERC’s mandate states, “The commission is not a judicial body and cannot assign responsibility to individuals for violations” (Article 6). This point was already contained in the ACHR’s Recommendations, which the king accepted:

The ERC’s activities constitute a part of the ongoing extrajudicial resolution of the question of past human rights violations. The ERC cannot, in any instance, after having conducted the necessary investigations, refer to responsible parties by name, whatever their deeds may have been.  The commission will ensure not to take any steps likely to provoke divisions or rancor or to sew divisions.

ERC President Benzekri told Human Rights Watch that the ban on naming perpetrators applied only to the realm of the ERC’s public disclosures.  He said that in the course of its research, the ERC routinely noted the names of alleged perpetrations.  The section of the final report containing the names of perpetrators constituted the only part of that report that would be delivered to the king rather than made public, Benzekri said.³⁰  It would then be up to the king what to do with this information.³¹

Benzekri said that some measures of accountability were already being implemented. “We are already seeing certain parties being relieved of their posts,” he said.  “Though in some cases this has not happened because of concerns about maintaining stability within the institutions.”³²  Benzekri did not name public officials who had been dismissed in connection with grave human rights abuses.

ERC commissioners have said on numerous occasions that while the commission itself lacks authority to publicly name perpetrators or to try or punish them, nothing prevents Moroccans from turning to the courts to seek justice for past abuses. According to Benzekri,

Nothing prevents a victim from going to court.  I, as a human rights activist, believe that the best way to change a situation is to participate in that change.  Let us say that I have a case: I file it in court, and then I fight to win my case. This kind of strategy can bring about real change.  The role of lawyers and of human rights organizations is to prepare cases that are strong and well-supported, cases that will put pressure on the judiciary, and oblige the state to respond in a serious fashion.

This assertion, if true in a general sense, minimizes the problem of judicial independence in Morocco today.  Although Morocco’s constitution guarantees judicial independence from the legislative and executive branches (Article 82), it is doubtful the courts can equitably judge politically charged cases of past abuse, especially when they involve officials who continue to hold office.  The justice system has consistently deprived defendants in political cases of a fair trial. Today, when the defendant is a provocative journalist or a suspected Islamist militant, he has little chance of receiving an independent judgment based on the facts in the case. The same impression emerges from the courts’ handling of cases that have been filed concerning past abuses, although the number of such cases that have been filed remains small.

One such case involves the abduction of exiled socialist opposition leader Mehdi Ben Barka. On October 29, 1965, French police agents acting at the behest of Moroccan security services intercepted Ben Barka on a Paris street.  He was escorted into their car and has not been seen since.  Moroccan authorities have never identified or held accountable the high officials implicated in the abduction, or disclosed Ben Barka’s fate. (A French court, however, convicted in absentia the alleged mastermind of the operation, Morocco’s then-Minister of Interior Mohamed Oufkir.) On July 5, 2001, the Socialist Union of People’s Forces party (Union Socialiste des Forces Populaires, USFP) filed a complaint regarding the “disappearance” of Ben Barka.  The USFP filed the complaint in response to just-published revelations by Ahmed Boukhari, a retired agent of the secret police who was on duty in Rabat at the time of the Ben Barka abduction in Paris.  Boukhari stated that his agency, known as “Cab 1,” engineered the kidnapping and that Ben Barka was tortured to death in custody.  Moroccan agents then arranged the secret transfer of Ben Barka’s body back to Morocco, where they dissolved it in a vat of acid.³³

To date the USFP case has gone nowhere.  The original investigating judge to whom it was assigned passed away, and a new one has yet to be named.  The prosecutor is seeking dismissal of the complaint on the grounds that the USFP, the party that grew out of the one co-founded by Ben Barka, lacks standing to bring the case and that the statute of limitation applies, since the crime occurred more than twenty years ago. For his role in divulging details of the case, Ahmed Boukhari has faced a series of politically motivated prosecutions and restrictions, further discrediting Moroccan courts as a venue for obtaining justice for past abuses.  Moroccan police arrested Boukhari in August 2001, six weeks after publication of his revelations, and he was tried and sentenced to one year in prison on charges of passing bad checks several years earlier.  Boukhari was released after serving three months in prison, but the authorities have refused to give him a passport, despite a decision in his favor by a Casablanca administrative court.  This refusal has prevented him from traveling to France, where an investigating judge in charge of the Ben Barka abduction investigation has sought to interview him as a witness.³⁴ (France assigned a judge to the case because the crime occurred on French soil, and because Ben Barka’s family filed a complaint for murder, after the conclusion of the first trial on kidnapping charges.)

The AMDH has also attempted to get the courts and parliament to investigate past abuses.  On October 23, 2000, the association sent an open letter to then-Minister of Justice Omar Azzimane, urging him to initiate proceedings against fourteen current and former government officials whom the AMDH accused of complicity in torture and other grave human rights violations.  On December 4, 2000, the AMDH addressed an open letter to parliament, asking it to form a commission of inquiry, in accordance with Article 42 of the Constitution, to investigate sixteen men named in the letter as responsible for “disappearances” and torture.  The letter added two names to the fourteen cited in the October letter addressed to the Justice Minister.  The AMDH declared that there were victims willing to testify against the accused before a parliamentary commission.  Neither the government nor parliament responded officially to the AMDH letters.³⁵

Moroccan courts need not wait for victims and other citizens to submit complaints about past abuses.  The law authorizes the office of the prosecutor general to initiate criminal investigations even in the absence of a complaint.  Despite the public testimonies by ex-policeman Boukhari and by victims of grave abuses in the past, who in many instances named their suspected abductors and torturers, no Moroccan prosecutor or investigating judge has, to Human Rights Watch’s knowledge, used this prerogative of auto-saisine (to initiate a procedure on one’s own) to open a criminal investigation.

If Morocco’s courts have contributed nothing to ensuring individual accountability for past abuses, the ERC cannot by itself fill that gap.  It cannot publicly name individual perpetrators, although it can identify them in its confidential report to the king.  It also has a responsibility to assign institutional responsibility for abuses, under Article 9 of its statutes.  The limitation on divulging names provides, according to ERC President Benzekri, a kind of trade-off:

It’s a mistake to assume that the justice system is the best way to handle past abuses….In court, the victim is there as a party.  But for us, the victim is the hero of the story.”³⁶

Benzekri maintains that the ban on publicly naming suspected perpetrators was in keeping with the ERC’s objectives:

If we were to arrogate to ourselves the right to judge persons, we would be in complete contradiction with the ideals we defend.  We are busy with a process of memory that is taking place ten, twenty, thirty years after the fact.  We can’t toss out names, outside of the established judicial procedures.  Human rights is not like a supermarket where we can ignore, at the moment that we feel like it, the presumption of innocence.³⁷

“Were the ERC to name perpetrators,” he said at another point, our work would get bogged down in defamation, and in political charges and counter-charges.  We do not have the means to manage all of that information. Moreover, not all of the victims know their torturers. Too much time has passed.  It’s not practical.  It is not individual responsibility that we are after.  We don’t have enough proof to be able to pinpoint the individual commanders who gave the orders. We work on the basis of victim’s testimony, and the victims do not have information on those who issued the orders.  What they have more useful information on are the low-level officers − the inspectors, the local bosses, those who carried out the orders.  It is about these perpetrators that the victims have the most to say. When we have information of this nature, we will categorize it and make recommendations, for example, in certain cases, that persons be dismissed from their posts. At the same time, even if we cannot identify those who gave the orders, we can still reconstruct the structure from which the orders came.   We will establish responsibility of the state, and the institutions of the state.³⁸

If it accomplishes this, the ERC will contribute significantly to illuminating how repression was practiced in the past.  And while the ERC cannot publicly name perpetrators, it should nevertheless argue, citing international human rights norms, against any amnesty measure for grave abuses that pre-empts the courts from fulfilling their role in judging suspected perpetrators.³⁹ It should also argue against the validity of a statute of limitations for the commission of grave abuses, for any period during which victims had no effective recourse in the justice system.⁴⁰

Arbitrary Limits

The statutes of the ERC stipulate that its mandate is limited to two types of grave violations, “enforced disappearances” and “arbitrary detention,” without clarifying its responsibilities toward other types of abuses and their victims.  A “victim” is defined as “any person who was subject to an enforced disappearance or an arbitrary detention.”  The “reparation of harm” is defined as “all those measures that are taken to assist the victim … following the forced disappearance or the arbitrary detention.”  In inviting requests for compensation, the ERC specifies that applicants should be persons who “suffered material and moral harm from forced disappearance and arbitrary detention.”⁴¹  This invitation is intended for both direct victims and their families or beneficiaries.

Despite the clear wording of its statutes, the ERC has insisted that it will give a far wider interpretation of the abuses falling within its mandate.  On April 15, 2004, following the publication of the statutes, the ERC distributed a document, “Presentation of the statutes of the ERC,” which states: 

The ERC’s mandate encompasses grave violations of human rights that were systematic and massive in nature, bearing in mind that the ERC’s prerogatives to investigate and determine the truth allow it to establish the categories, gravity, and the massive or systematic character of past abuses of human rights.⁴²

“We started from the idea that these two violations were the main instruments of repression,” ERC President Benzekri told Human Rights Watch. “But [our mandate to] search for the truth means that we can go much further.”  Benzekri added that the ERC intended to extend eligibility for reparations to victims of other types of violations, since “torture, assassinations, and killings caused by the use of disproportionate force by the security forces during disturbances, can be considered as massive and systematic violations.”  Benzekri also said that “the violations that touch on the right to life fall within our mandate.”  As for the ERC’s notion of “arbitrary detention,” Benzekri said, it would include not only persons detained without trial but also those who had been imprisoned after an unfair trial. In those cases, “Our intention is to say how the trial was unfair.”⁴³

Benzekri told Human Rights Watch that for every case it received, the ERC would “present it in its entirety and classify it in legal terms,” suggesting that every case submitted to the ERC will receive a substantive response, whether the request for compensation is accepted or denied. 

At the seminar it organized in Rabat on September 30–October 2, 2005, the ERC distributed a document listing “violations likened to forced disappearances according to the ERC philosophy.” This document confirmed an expansive notion of the violations included in its mandate:

• cases of “disappearance” as recognized by the definition found in the ERC statutes and in the international human rights instruments, notably in the declaration [on the Protection of All Persons from Forced Disappearances]  of 1992 and the draft Convention on [the Protection of all Persons from] Forced Disappearance;
• persons who died during detention;
• cases of “disappearance” where the State recognizes that the person has died and has paid compensation to the family and beneficiaries, but where the body has not been identified or turned over to the families;
• persons who died during the disturbances of a social or regional character (such as those of 1958, 1965, 1981, 1984 and 1990), following interventions to restore order and the use of excessive or disproportionate force by law enforcement forces;
• persons who died from ill-treatment, torture, or conditions of detention in prisons, places of pre-arraignment detention or in prolonged arbitrary detention;
• persons who “disappeared” in circumstances that remain unclear and/or in circumstances that have not been established but are not attributable directly or indirectly to the state; and
• persons who died in situations of armed conflict, in the Western Sahara, notably during military battles with armed militias or Polisario units supported by the Algerian military.⁴⁴

At the same time, the ERC seemed to rule out compensation for certain other grave human rights violations if it determines that they were not practiced in a systematic fashion. “There were summary executions,” Benzekri explained, giving an example.  “But when we worked on this issue we did not find enough elements to say these cases amounted to a systematic kind of violation.”

The former Indemnity Commission also had a mandate that was limited to forced disappearances and arbitrary detentions.  It went beyond this mandate in a limited number of cases. For example, it provided compensation to some Moroccans who had been forced into political exile.  Benzekri told Human Rights Watch that the IC had also issued compensation to some persons whose detention occurred after a trial, but whose conviction and sentence the IC considered to have been unjust.  It did so, said Benzekri, because the restrictive notion of arbitrary detention in the IC’s statutes “posed a problem.”⁴⁵ In the majority of cases, however, the IC rejected applications for compensation when the victim’s claim related to a type of violation that did not fall explicitly within the mandate of arbitrary detentions and forced disappearances.

It is not clear why eligibility for compensation should depend on whether the abuse a person suffered is classified as systematic or non-systematic. Compensation policies should not discriminate among victims of state-sponsored human rights abuses, except in terms of the gravity of the violation suffered.  If the ERC considers itself limited statutorily in terms of which victims it can compensate, it should nevertheless advocate for the right of all victims of grave human rights abuses, as the term is understood in international law, to enjoy equal consideration from state bodies in terms of reparation and compensation.

Inability to Compel Cooperation

Most of Morocco’s security services (police, army, intelligence agencies) were implicated in the grave human rights violations committed between 1956 and 1999.  Thus the ERC’s search for the truth seems dependent on access to the archives and other documents of these services, and on the testimonies of current and former agents and their superiors.  Because these documents and testimonies could incriminate these agents or their colleagues, the agents seem to have little incentive to comply with ERC requests for cooperation.

In contrast to South Africa’s truth and reconciliation process, Morocco has not offered state agents the possibility of an amnesty in exchange for full disclosure of crimes they committed in furtherance of their official duties.  The ERC’s work does not affect, in theory at least, the criminal liability of perpetrators.

The statutes of the ERC endow it with no power to compel state agents to respond to requests to testify or furnish documents. The statutes merely call on state bodies to help the ERC in the accomplishment of its work: “In order to achieve the goals set out by these statutes and to carry out the high royal decision creating the Equity and Reconciliation Commission, all the authorities and public institutions shall provide to the Commission their help and provide it with all information and facts enabling it to accomplish its missions” (Article 7).  To date, Moroccan authorities have never stated that there would be sanctions of any kind for state agents who did not cooperate with requests for information from the ERC.

This absence of subpoena power contrasts with the law in Morocco governing parliamentary commissions of inquiry, which provides prison terms for persons who refuse to cooperate with these bodies.

ERC President Benzekri told Human Rights Watch on April 6, 2005 that “no official who is currently serving in office was interviewed by the ERC because our philosophy is to place the victim at the center of our work.”  The ERC submitted to state agencies the case files of victims who had approached the ERC, and waited for the state agencies to provide information about these cases. 

Benzekri told Human Rights Watch shortly after the ERC’s creation, “The king told us he would ensure that authorities would cooperate.”⁴⁶  A little more than a year later, on April 6, 2005, he told Human Rights Watch, “Cooperation with various state agencies has been effective, in terms of our getting access to army archives, visiting [former] secret detention facilities, and establishing programs for social assistance and rehabilitation for the communities around these facilities.  Without such cooperation we would never have been able to do what we were able to do.”

Until the ERC discloses the results of the claimed cooperation with state agencies, it is not possible to evaluate the effectiveness of this voluntary approach. As of early November 2005, the ERC had not indicated that the quality of cooperation it had been receiving from state officials was problematic in any way. 

The Coordinating Committee of Families of the Disappeared criticized this silence. The committee voiced frustration that the ERC, more than a year after its creation, had provided them with no information concerning the fate of their missing relatives. In a communiqué dated March 20, 2005, the Committee underscored “the importance of being kept informed of the difficulties that the commission might be confronting during its investigations concerning the fate of the disappeared and the identity of the agencies behind these obstacles.”⁴⁷ Benzekri responded that the investigation was still ongoing and added that it would be irresponsible to give information bit by bit to families, especially if that information was incomplete or unconfirmed.⁴⁸

For Khadija Rouissi, a founding member of the Coordinating Committee of Families of the Disappeared and the sister of one of the best-known of the “disappeared,” Abdelhak Rouissi, the ERC’s lack of powers of compulsion is a real problem because the authorities refuse to collaborate:

The families wonder what the ERC has been able to do to convince officials to speak…. I met a person thought to have been involved in the abduction of Abdelhak.  He advised me in a sarcastic and arrogant way to go to court if I wanted to go after those who were responsible.  Others have said, “If the top officials aren’t going to talk then I am not going to talk either.”⁴⁹ 

(In March 2005, Rouissi joined the staff of the ERC.  However, she made these observations in the name of the Coordinating Committee.)