No Buying Off the Past: Moroccan Indemnities and the Opposition

Susan Slyomovics

(Susan Slyomovics, a contributing editor of Middle East Report, teaches anthropology at MIT.)

Since King Mohammed VI ascended the throne in 1999, Morocco has created various bodies to pay cash awards to Moroccans "disappeared," imprisoned or tortured for their political beliefs under the reign of his king father. But there have been no trials of the jailers and torturers. Former prisoners continue to resist regime efforts to "turn the page" on Morocco�s repressive past without genuine truth and accountability.

International precedents currently observed involving acknowledgment of state crimes and abuses, reparations and the use of multinational courts owe much to the unprecedented legal history of the Nuremberg war crimes trials and German redress programs to victims of Nazi persecution after World War II. The Federal Republic of Germany took responsibility for meeting claims by Jews in a widely publicized speech to the German parliament by Chancellor Konrad Adenauer in 1951:

Policies enacted were based on sincere government apologies and principles of restitution interpreted as restoration of actual individual assets, indemnification in the form of compensatory payments and reparations defined, in this case, as collective payments from one state to another: to the Jewish people and eventually to the state of Israel after its establishment in 1948. German reparations were called wiedergutmachung -- literally, making good again. Ways to gauge reparations were based on the quality of remorse expressed by the perpetrators or, in the case of Germany, a government that admitted to harm committed in the name of Germany and that sought to atone for past injustices. Germany is credited with creating the largest sustained redress program in recorded history, amounting to more than $60 billion in payments, a landmark process that set in motion a global legal transformation in how state abuses may be redressed. The absence of government atonement and apology, in contrast, is assumed in legal discourse to signal that a more common legal category is operating, one in which parties agree to a settlement: one side pays without acknowledging or apologizing for violating any laws and the other side, the aggrieved party, receives a cash award.

Moroccan Indemnities

The post-independence civil and penal codes of Morocco remain largely French-inspired. The complex heritage of the Moroccan legal system embraces an uneasy mix of some, but not all, laws practiced in France at a particular historical moment, along with decrees and military emergency laws enacted by French colonial authorities to preserve French hegemony over Morocco. Examples carried over intact and "Moroccanized" after independence are codes governing what was known as libert�s publiques both in France and under the French Protectorate. In independent Morocco, these became the laws governing the right to organize and to assemble, and the right to a free press. Yet after independence, these French laws were enforced as restrictively as possible and, frequently, more punitively. The decree (dahir) of July 26, 1939, promulgated under the French Protectorate, mandated prison terms for making, distributing or selling tracts to disturb order, tranquility or security. It continues to be invoked by the Moroccan government to repress demonstrations and publications. When laws were enacted declaring the persons of the king and the royal family sacred, a new category of crimes and attendant punishments added more names to the growing list of detainees and prisoners in post-colonial Morocco. [1]

On August 17, 1999, a few weeks after ascending the throne, King Mohammed VI ordered the Advisory Committee on Human Rights (ACHR) to activate an independent Indemnity Commission, with a mandate to expire at midnight December 31, 1999, for the purposes of indemnifying Moroccans "who suffered moral or physical prejudice as a result of enforced disappearance or arbitrary detention." [2] The commission began with indemnities (ta'wid), the typical conclusion of the process for any truth commission. Indemnity as conceived by ACHR acknowledges implicitly, rather than explicitly, an official policy of illegal state practices. If human rights violations are posed in material terms of indemnification, then acknowledging a claim requesting indemnification becomes the only way for a victim to be recognized.

Opposition

The Indemnity Commission has been denounced from a variety of legal, moral and emotional standpoints: indemnities cannot recompense torture, there should be no impunity for the perpetrators, the process is illegal and secret, and the administrators are complicit in the government�s past abuses. Houria Esslami is the sister of Mohamed Esslami, a 27 year-old doctor active in politics until he disappeared on November 29, 1997. She cogently summarizes the point of view held by many families searching for their disappeared kin, only to be informed that no human rights organization has been able to obtain information of their whereabouts. Active in Moroccan organizations on behalf of families of the disappeared, Houria opposes indemnities as conceived by the ACHR:

For complex personal and emotional reasons, a vocal number of former political prisoners oppose filing any indemnity applications, although they endorse familiar international recommendations and remedies. Fatna Elbouih, a woman political prisoner (1977-1982), refuses to request money:

Nor will Abdelaziz Mouride, a Marxist-Leninist political detainee from 1974-1984, file an indemnity application. He makes clear his opposition to the corrupt and historically complicit membership of the ACHR. While incarcerated in Kenitra Central Prison, Mouride smuggled out of prison a cartoon book that exposed the horrific conditions produced by Morocco�s repressive police state. [5] In a subsequently redrawn edition of the events of the notorious 1977 Casablanca trials, Mouride depicts five judges on the bench fast asleep, snoring loudly (swarms of the letter z dance around their heads) as verdicts condemning 178 Marxist-Leninist prisoners of conscience to decades in jail are pronounced. [6] The tribunal president during Mouride�s trial was Mohammed Afazaz, whom Mouride�s cartoon book glosses as "today a member of the Advisory Committee on Human Rights. A minor country judge before the trial, he has known a murky ascent before becoming an authority in matters of human rights." [7]

Opposition to the Indemnity Commission also comes from Moroccan human rights lawyers who point to misuses of the legal concept of ta'wid. Compensation and payment are key terms in contract law, part of the legal vocabulary for economic disputes involving reimbursement and arbitration of damages, all of which are regulated by Morocco�s codes governing obligations and contracts, and which are procedures that closely conform to French contract laws. As do Articles 77-106 in the Moroccan code concerning contracts, the Indemnity Commission draws on the term ta'wid and the phrase, those who have suffered "material and moral damage" (al-darar al-maddi wa al-ma'nawi), to refer to victims. [8] But use of the same words does not a shared vocabulary make between the Indemnity Commission and Moroccan contractual codes; several breaches occur in the application and arbitration of ta'wid by the ACHR. First, during arbitration (tahkim) for indemnities as defined in the Moroccan legal code, the opposing parties designate the arbiter or arbiters. Under ACHR, members of the Indemnity Commission are state-appointed; the state, therefore, occupies simultaneously the position of both judge and interested party. Second, final judgments in indemnity suits under the Moroccan legal code must follow Moroccan civil code procedures as set out in Articles 306-327, by which arbitration cases must be reviewed and controlled by the president of the Tribunal of First Instance to ensure their legality with respect to possibilities of recourse. Under ACHR, there is neither judicial control nor oversight for any Indemnity Commission ruling. Third, the infamous Article 12 of the ACHR indemnity protocols requires that each application include a signed statement that the victim accepts the indemnity amount assigned by the commission and waives recourse to subsequent civil court actions. Those who do file with ACHR automatically forfeit the right to appeal, a right that should be upheld in Morocco following international norms.

Indemnities and Islamist Political Prisoners

The activities of one Islamist group, known as Group 71 -- because 71 were tried during closed tribunals beginning July 31, 1984 -- are instructively considered in relation to victim responses to government indemnification. Group 71 is the first group of Moroccan Islamists arrested and tried for nonviolent crimes of opinion. Members were charged with plotting against the regime, attacking the internal security of the state, hanging banners, holding secret meetings in order to constitute a group deemed illegal, inscribing graffiti hostile to the regime on walls, distributing tracts in Morocco, introducing into France tracts denouncing the monarchy and refusing to denounce comrades deemed guilty by the state. In 1984, more than 80 trials for political opinions were held with 1,600 people judged, the arrests falling as heavily upon the Islamists as on the radical left, notably Ilal-Amam. [9]

On December 29, 1999, two days before the deadline date to file for indemnities, Group 71 collectively decided to present their individual cases and to disregard the commission format, in particular each refusing to include the necessary letter accepting the indemnity commission rulings without recourse to appeal. Instead, each narrated the litany of arrest, torture, forcible disappearance and illegally prolonged incommunicado detention, farcical trial, absurdly long prison sentences, and physical and medical deprivations endured. Taking the premise that truthful accounts of past criminal behavior must be aired and the guilty punished, the Islamists of Group 71 are choosing to act as if the Moroccan authorities could and would be held accountable. If the terms of debate determining how Moroccan society moves away from dictatorship are framed by indemnification plans, the Islamists are prepared to engage, even bureaucratically by filing indemnification files, a government determined to buy off and bury the past.

The Moroccan combination of paying reparations to victims while absolving the guilty redirects our focus to the case of post-war West Germany. Adenauer, who launched the reparation program, began his new government in 1949 by dismantling the Allied denazification programs for Nazi-era crimes. Amnesty programs for those guilty of serious crimes were created and restitution laws reintegrated hundreds of thousands of Nazi party members into their former jobs and professions, including many from the Gestapo and SS who would then be called "those damaged by denazification." [10] There are many advantages "to turning the page" on state crimes, such as the necessity to retain large numbers of trained civil servants, the impossibility of dismantling a complicit army and police force, and the need to ensure a stable monarchy and parliament as these institutions progress toward economic and political reform. All of these reasons are advanced by Morocco�s ruling elite. Despite more than 50 years of German payments, it is not yet possible to gauge the extent of suffering caused by what the historian Norbert Frei has called Germany�s post-war self-pardoning and its effect on its victims, or on subsequent generations. In Morocco, victims are forced to face -- indeed, they encounter on a daily basis -- perpetrators of torture and forcible disappearance as judges, governors, bureaucrats, lawyers, military personnel and police officers.

Indemnities and Islamic Law

The relationship to Islamic (and implicitly pre-colonial Berber) practices is brought to the fore by the commission�s own formulations. The Moroccan government took pains to endow the Indemnity Commission with Islamic moral origins, even though "enforced disappearance" and "arbitrary detention" derive from the vocabulary of international human rights.

Morocco introduced a leading principle of the Maliki school of law -- la darar wa la dirar (neither harm nor injustice). Sudanese legal scholar Abdullahi An-Na'im points to the importance of local and Islamic culture as potential sources inspiring legal norms: For example, diyah (blood money) emphasizes the consequences of human rights violations while its specific practices that may deny or diminish reparative justice to women and minorities need not be invoked. [12i] Unlike the Indemnity Commission, the spirit, if not the letter of diyah, accords a central role in the victim�s full acquiescence to the outcome of blood money negotiations, or in the case of death, the victim�s family determines acceptable terms of repayment. Not just individuals, but more often the group, must share responsibility for acts by its individual members. Although any notion of collective responsibility is rejected by shari'a, nonetheless local customary law acknowledges in pecuniary ways that damage has been done to the social collectivity, and that sanctions emerge from complex and very public negotiations among perpetrator, victim and their respective families and tribes.

Indemnity hearings and the distribution of funds are currently underway in Morocco. Beginning in 1995, survivors of 18 years of disappearance and incarceration in the notorious Tazmamart prison were accorded a monthly pension of 5,000 dirhams by the government of King Hassan II. In 2000, to mark the Moroccan visit of Mary Robinson, then UN High Commissioner for Human Rights, King Mohammed VI bestowed additional one-time, lump sum payments of one million dirhams or more.

On December 10, 2002 (International Human Rights Day), King Mohammed VI appointed former minister of justice Omar Azziman as president and Driss Benzekri as secretary-general of the ACHR. Benzekri, a political prisoner (1974-1991) from the outlawed Marxist-Leninist group Ilal-Amam, completed advanced university degrees in Morocco and France in Amazigh/Berber linguistics and oral poetry and in human rights law from Essex University. He was the first president of the Moroccan Forum for Truth and Equity, a non-governmental organization established in 1999 by victims of human rights abuses. In a televised statement, Benzekri noted that the ACHR plans "to adopt mechanisms in line with global standards of human rights that include civil, political, economic and social rights." [13] On November 6, 2003, the ACHR publicly issued a recommendation (tawsiya) to create an "Instance d�equit� et reconciliation," [14] and in conjunction with the 1999 Indemnity Commission, to reconsider indemnities and to investigate cases of disappearance and the locations of mass graves. As this issue goes to press, a year is envisioned to complete the task and "to turn the page" on Morocco�s past. As in 1999, the new effort excludes trials.

Diyah may once have been a public method to end disputes without physical violence, an effective instrument for the rights of social redress. For the moment, neither diyah nor the Indemnity Commission�s ta'wid provides appropriate redress for abuses committed by the government. Redress to victims of human rights abuses remains the purview of the ACHR, as does the possibility of establishing a truth commission.

[1] Article 179, Moroccan Penal Code, calls for one to five years of prison (and fines from 200 to 1,000 dirhams) for offenses against the royal family.

[2] See Susan Slyomovics, "A Truth Commission for Morocco," Middle East Report 218 (Spring 2001).

[3] F�d�ration Internationale des Ligues des Droits de l'Homme, Rapport: Les disparitions forc�es au Maroc: R�pondre aux exigencies de v�rit� et de justice 298 (November 2000), pp.1-115.

[4] Fatna Elbouih, "Human Rights in Morocco," lecture delivered at MIT, Cambridge, Massacshusetts, March 13, 2001. Also see "This Time I Choose When to Leave: An Interview with Fatna Elbouih," Middle East Report 218 (spring 2001).

[5] Rahhal (pseud.), Fi ahsha' baladi (In the Bowels of My Country) (Paris, 1982); updated edition is Abdelaziz Mouride, On affame bien les rats [They Starve Rats, Don't They?] (Paris-Casablanca: Tarik, 2000).

[6] For an account of the 1977 Casablanca trial, see Comit�s de Lutte contre la R�pression, Le Maroc des proc�s (Paris, 1977).

[7] Mouride, p. 31.

[8] Fran�ois-Paul Blanc and Rabha Zeidguy, Dahir formant Code des obligations et contrats: �dition synoptique franco-arabe (Casablanca: Sochepress, 1983), pp. 25-37.

[9] Jean-Claude Santucci, "Chronique marocaine,'' Annuaire de l'Afrique du Nord (1985).

[10] Norbert Frei, Adenauer's Germany and the Nazi Past: The Politics of Amnesty and Integration (New York: Columbia University Press, 2002), pp. xi-xv, 303-312.

[11] Kingdom of Morocco, Ministry of Communication, "Achievement of the Human Rights Advisory Committee in Brief," http://www.mincom.gov.ma/english/generalities/state_st/human_rights.htm.

[12] Abdullahi An-Na'im, "The Right to Reparation for Human Rights Violations and Islamic Culture(s)," in Netherlands Institute of Human Rights, Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (Amsterdam: SIM Special, 1992), pp. 174-181.

[13] Arabic News.com, December 17, 2002.

[14] Le Matin de Maghreb et du Sahara, November 7, 2003.