The month of January has a particular significance in the Middle East and North Africa. It was the month when the Arab uprisings were sparked five years ago. It was also the month when the transitional justice process was inaugurated in Morocco, 12 years ago. To this day, the Moroccan experience resonates across the region into which it introduced the concept of transitional justice. Amid the political upheaval of 2011, Morocco loomed as an example of the ability of transitional justice measures to help soothe democratic transition. At the same time, valid questions remain about its outcomes, shortcomings, and what can be learned from Morocco’s experience.
King Hassan II ruled Morocco from 1961 to 1999, during which time many serious human rights violations – especially enforced disappearances – took place. In 1991, international pressure stemming from a victim-led national movement caused Hassan II to close Morocco's notorious secret prison, Tazmamart, and release its prisoners. Three hundred and forty-one prisoners were released, and Tazmamart was demolished. The king also approved a reparations program for the families of the disappeared.
King Mohammed VI – Hassan II’s son – ascended to the throne in 1999, determined to break with the heavy legacy of his father’s so-called “￼￼￼years of lead." After negotiations between civil society and the palace, King Mohammed VI established the Equity and Reconciliation Commission (IER) ￼in November 2003. The commission was charged with achieving national reconciliation and addressing past human rights violations from 1959 to 1999.
The commission formally began its work in January 2004 and spent 23 months investigating enforced disappearances, arbitrary arrests, torture, and sexual violence. The IER resolved 742 cases of enforced disappearance and provided economic compensation to 9,779 victims. During its mandate, the IER held seven live, televised, public hearings in six regions to establish the historical truth.
The commission submitted its final report to the king in November 2005, recommending community reparations in 11 regions. The report also included policy recommendations and emphasized the need to strengthen constitutional protection of human rights, as well as other legal and judicial protections.
The National Council on Human Rights (CNDH) was entrusted with following up on the IER’s recommendations. CNDH is expected to issue a final report on the implementation of recommendations and unresolved cases in 2016.
A Transformative Route
One important aspect of the Morocco experience is the involvement of civil society and its efforts in initiating the process.
“The commission had great results and transitional justice impacted the country, but we should remember that parties, syndicates, and women's groups worked together to create a common ground for people to work on transitional justice,” said Abdul Ilah Ben Abdessalam, vice president of the Moroccan Association of Human Rights (AMDH), a Moroccan human rights organization founded in 1979.
The role of Moroccan human rights organizations and victims’ groups was decisive. They seized the political opening and put pressure on the government to embrace a comprehensive transitional justice framework, instead of only a reparations program. Their goal was to break the silence about Morocco’s past.
“Most people did not know about these violations. Only the affected families,” says Naima Ben Wakrim, a member of the CNDH.
In 2001, prominent human rights organizations held a national debate and issued a set of recommendations to the king that crystallized their vision of the process. The launching of the IER and confronting the denial of the past was an unprecedented victory for the victims and their families.
This negotiations process impacted and inspired public debates and forums about the best ways to achieve justice for past human rights violations in Morocco, including social, economic, and gender justice. Women’s experiences provide a good example of how the process of transitional justice enabled reflections on structural inequalities in Moroccan society.
“The commission gave the [women’s] movement a tremendous political support,” says Ben Wakrim. “The movement now not only uses international treaties to remind the state of its duty but also uses the IER recommendations.”
While the IER did not take a specifically gendered approach in its work, it sought to contribute to efforts to alter discriminatory practices and laws through its recommendations, and the women’s movement in Morocco harnessed the IER’s decisions and recommendations in their struggle. For instance, the IER broke with previous compensation schemes based on traditional inheritance laws that prevented the wives of the disappeared or killed from obtaining compensation. Instead, the IER applied nondiscriminatory principles and awarded the wives reparations based upon their role as the victims' spouses. This decision has subsequently been used to bolster women’s campaigns to alter the discriminatory family laws.
The IER did not examine the experiences of female relatives of surviving male victims, as women’s groups wanted it to. But its recognition of gender in its reparations scheme has positively influenced the way truth commissions elsewhere have addressed the issue. For example, it guided Tunisia, and its Truth and Dignity Commission, to acknowledge female relatives of political prisoners as direct victims who faced discrimination and human rights abuses.
“Much has been learned from the Moroccan experience. Through its reparations policy, the IER acknowledged the way human rights abuses impact women differently because of the lack of gender equality in society,” said Kelli Muddell, director of ICTJ's Gender Justice program. “This was the first time reparations were designed to do so. The IER has been an important example to other truth commissions.”
However, despite civil society’s early involvement in the transitional justice process, discontent with its outcomes persists.
Truth without Accountability
Morocco’s transitional justice process must be viewed within the particular political and historical context in which it took place. The process was endorsed by and carried out under the same government responsible for the very violations under examination. As a result, there was no accountability for those crimes, even though combatting impunity was one of the main recommendations of the IER.
The decision not to consider criminal accountability was the result of an implicit agreement between the regime and civil society in order to move forward with other measures of redress, such as truth-seeking and reparations.
However, the lack of accountability went beyond the absence of criminal trials to the failure to identify those responsible for violations. Victims were prohibited from naming perpetrators in their testimony. As a result, in addition to being safe from prosecution, those who committed torture, who ordered killings and mass detention, kept their positions in the public sphere.
“The absence of naming and shaming contributes to continued policies of political oppression and mass arrests,” explains Ruben Carranza, director of ICTJ’s Reparative Justice program. “While those policies were once used to preserve the monarchy, they are now deployed in the name of fighting terrorism.”
Preventing victims from naming their perpetrators also cripples the aim of establishing the historical truth.
“We need the entire truth. There are calls now for a new truth commission because we a large part of truth remains unraveled,” says Ben Abdessalam.
Unresolved Cases of Enforced Disappearance
Although the IER solved many enforced disappearance cases, 66 remain unsolved. Some are politically sensitive, involving those who opposed the monarchy.
Perhaps the most famous of such cases is that of Mahdi Ben Barka, a Moroccan politician and head of the left-wing National Union of Popular Forces who disappeared in Paris in 1965. French police are believed to have been involved in the disappearance, though a French court ruled that Morccan authorities bear primary responsibility.
Ben Wakrim attributes the failure to solve Ben Barka’s disappearance to a combination of technical issues and the possibility of insufficient political will. Ben Barka’s son, Bachir, however, believes that the government is disinterested in solving the case, and cites its unwillingness to cooperate with the French investigation.
On the 50th anniversary of Ben Barka’s disappearance in October 2015, the king praised him as “a man of peace,” but did not comment on efforts to uncover the truth about what happened to him. Bachir Ben Barka finds such statements to be unsatisfying and not an adequate substitute for the truth about his father's disappearance.
The families of other victims of disappearance - those who were not at the forefront of political action - have also expressed their discontent.
Ben Abdessalam, who works with these families, explains that while many now know the truth about what happened to their loved ones, the state has not returned their remains, limiting families’ ability to mourn.
“They need graves to visit," he says. "Truth is not enough."
What is the Worth of Reparations?
On the recommendation of the IER, both individual and collective reparations programs were implemented. Individual victims of enforced disappearance, arbitrary detention or arrest, rape, and other crimes were provided with monetary compensation and health care. Regions that were particularly affected by political violence (like those that suffered collective crackdowns by government forces or that were the sites of secret detention centers) received collective reparations in the form of social and economic projects.
This collective program was singular among other transitional justice experiences around the world in that it took on the issue of marginalization in society. In a climate of political oppression those who are marginalized socially or economically often are the most vulnerable targeted victims.
“They took the effort to examine how the repression of a community, on one hand, and the economic and social marginalization of a community, the other hand, instead of solely focusing on the physical integrity violations,” said Carranza.
Evidence of the reparations programs’ success, however is either hard to find or incomplete.
Ben Wakrim says that she is proud of what collective reparations have accomplished based on existing quantitative data, and believes that they have been a success compared to the individual program. With individual reparations, she says, “some people wasted the money and fell in need, and many compared what they got to others, and this made them plunge more into victimhood, instead of being liberated.”
The reparations programs’ effectiveness was in part undermined by the categorization of marginalized and affected groups used in the process, which neglected some groups of victims.
Ben Abdessalam also questions how greatly reparations have helped those who received them and whether they addressed people’s most dire needs. “They did not pave roads or supply electricity,” he says.
Carranza, however, warns against conflating reparations programs with development policies. He argues that supplying electricity or paving roads is not the responsibility of a reparation program, but rather a separate obligation of the state towards its citizens.
Ongoing Offenses Leave Reconciliation Stillborn
In addition to the lack of accountability in the form of criminal trials or naming perpetrators, Morocco’s transitional justice process has been criticized by victims and their families, as well as by NGOs, for failing to achieve its main purpose: national reconciliation.
This is due in part to the fact that the IER was launched while the state continued to use the same policies of repression it was created to investigate, particularly against Islamists and Sahrawi citizens. Even though the practice of enforced disappearance decreased to a very limited scale, mass arrests and systematic torture lingered on the scene, according to Ben Abdessalam. The persistence of such violations, he argues, presents a major obstacle for national reconciliation.
“The struggle started because of the lack of democracy,” says Ben Abdessalam. “Reconciliation is not about shaking hands. Torture is a serious human rights crime according to the international laws. As long as the people who commit torture lead the public peace it’s difficult for us to experience reconciliation.”
Reforming the judicial sector and state institutions, another important component of the IER’s recommendations, remains incomplete in Morocco. A series of constitutional amendments adopted in 2011 advanced civil rights and criminalized torture and other serious human rights violations, but progress on the constitutional level has yet to trickle down into institutional and legal reforms.
While Ben Wakrim praises the constitutional reforms, she admits that not much has been done to strengthen legal institutions.
“We can say that all recommendations on political reform were included in the constitution, but it can’t be said on the legal reforms,” she says.
A Model for Others?
While many countries in the region continue to see the Moroccan experience in terms of the process’ possible contribution to political stability in the country, it’s important to acknowledge that the IER’s impact has been incomplete: Mahdi Ben Barka and other disappeared remain missing, reparations have not reached all those affected by abuses, perpetrators have been neither prosecuted nor publically named, and institutional reforms are incomplete.
Nevertheless, despite these limitations, the positive impact of transitional justice process on Moroccan history and society is undeniable. The way in which victims and their families harnessed justice measures to meet some of their demands and forge a common ground with the state is a crucial example for others in the region as they debate what shape their own processes will take. The lengthy negotiations between active social forces and policy makers provide a worthwhile example, while Morocco’s shortcomings reveal what potential pitfalls others should strive to avoid.
“Some people exaggerate Moroccan transitional justice, some dismiss it totally and I can understand their reasons,” says Ben Abdessalam. “I’m very critical about it, but I’m optimistic. It’s a long process and it will not end with the CNDH final report.”
PHOTO: Victims of state repression attend a public hearing of the IER in Rabat, Morocco in December 2004. (AP Photo/Abdlhak Senna, Pool)