Introduction
In 1999, following the death of Moroccan President King Hassan II, his successor Mohammed VI created the Independent Arbitration Commission (IAC) as a mechanism for reparations to compensate victims/survivors of past political abuses, specific to arbitrary detention and forced disappearances. However, the IAC was largely criticised by victims/survivors and their relatives for not fully committing to addressing past political abuses (ICTJ, 2009; Guillerot et al., 2011; Loudiy, 2018). This led to a proposal in 2001 for a formal institution that would address the political history of Morocco. With continued lobbying and an endorsement from the Advisory Council on Human Rights (CCDH), King Mohammed VI approved the proposal and established the Equity and Reconciliation Commission (Instance Équité et Réconciliation, or IER).
The IER was established by a royal decree in late 2003 with a mandate to determine the truth about gross human rights violations committed in the span of 43 years, 1956-1999, commonly called the Years of Lead. While its mandate was limited, the commission eventually investigated a range of violations, including enforced disappearance, arbitrary detention, torture, extrajudicial executions, excessive use of force by the state and forced exile (IER, 2005). It also addressed the gendered nature of the violence and sexual violence, primarily as a result of the testimonies of women victims/survivors before it (ICTJ, 2009). The commission was to compensate victims/survivors of political abuses, initiate processes of national reconciliation and promote a culture of tolerance, human rights and respect for human dignity and life.
The commission examined 22,000 applications for consideration from victims/survivors and their relatives (Loudiy, 2018). Its final report was presented to King Mohammed VI in late 2005. In 2006, the king assigned the responsibility of dissemination and implementation of the commission’s recommendations to the royal Advisory Council on Human Rights (Conseil Consultatif des Droits de l’Homme, or CCDH).
Conflict and Prevalence of Sexual Violence
Previously a French protectorate to the south and a Spanish protectorate to the north, Morocco gained independence in 1956 under King Mohammed V. The legitimacy of the king’s power was through religious rituals and customs that were established prior to Moroccan independence. His reign was considered a symbol of national liberation from colonial rule, extremists, political chaos, anarchy and enemy states. However, Fadoua Loudiy (2018, p. 17) argues that, despite Morocco overcoming colonial rule as well as the hope for the new leadership, Moroccan citizens continued to be “subjects of the king.”
Established as a constitutional monarchy, the reign of King Mohammed V was characterised by political unrest, instability and excessive state-sanctioned violence that included arbitrary detentions, extrajudicial executions, torture and enforced disappearances of thousands of Moroccan citizens (Guillerot et al., 2011, p. 6). Following the king’s death in 1961, his successor King Hassan II further entrenched the rationale of political violence and continued the practice of institutionalised violence that saw more systemised repression of opposition parties and many civilians (Menin, 2014). The Years of Lead were a consequence of the normalisation of state violence that could be traced from colonialism to independence, characterised by regional revolts and later struggles for power between the two main political parties, Istiqlal and the National Union of Popular Forces (ICTJ, 2009).
The regime targeted people across ethnic groups, religious groups, gender lines, as well as political affiliations who were critical of the monarchy and state (Loudiy, 2018). Political dissidents were deemed a threat to national security and societal stability, hence the violence. Despite the majority of the literature on the Years of Lead documenting men as the sole victims/survivors, more recent scholarship shows that the violence was highly gendered, with women also experiencing arbitrary arrests, interrogations, enforced disappearances, torture, detention and harassment in the form of constant police surveillance. More specifically, female activists, detainees and female relatives of political activists were targeted for sexual violence (Guessous, 2009).
In detention, women experienced violations such as rape, threats of rape, enforced nakedness and invasive body searches – acts designed to humiliate, terrorise, and intimidate them. Equally, male detainees were exposed to sexualised violence, both verbally and physically, with documentation of sexual torture and sexual violations as acts of interrogation and punishment (Menin, 2014).
Contributing Factors around Sexual Violence
Historically, like in many African societies, Moroccan women have primarily been perceived as mothers, sisters and daughters and often socially constructed as the moral compass of society (IER, 2005a, p. 50). Following patriarchal stereotypes, Moroccan society generally promotes unequal gender dynamics between men and women, wherein men are superior and women are inferior (Elaissi, 2015, p. 660). Hence, the expectation is that women should remain in the private domain while men hold authority in the public domain.
Since independence, the involvement of women in politics has been perceived as transgressive to their socially constructed image (Menin, 2014). According to Moroccan former political prisoner Fatna El Bouih, women in politics were synonymous with promiscuity during the Years of Lead. The IER documents that women were subjected to violations because of their political and trade union affiliations, particularly those who belonged to either left-wing parties or organisations. Additionally, women were accused of harbouring members of the opposition and providing them with food, which led to heavy surveillance and arbitrary detention characterised by interrogation and different methods of torture, including sexual torture (IER, 2005, Vol. 1).
Women’s participation in politics often elicited sexual violence, as they were unwelcome within spaces defined as ‘male.’ Sexual and physical violence was used as punishment to return women to the domestic, private domain (Guillerot et al., 2011). IER (2005a, p. 77) states, “The methods of interrogation and torture that were used on them were clearly and characteristically distinctive because they were women, not only because they held opinions opposed to the existing political order but also because they defied a social order in which public affairs were considered a male domain. This multiplied their suffering from types of violation like degradation, humiliation, and abuse.”
According to testimony from former political prisoners Nour-Eddine Sauodi and Fatna El Bouih, sexual torture and gendered violations were integral to political violence during the Years of Lead. Sauodi and El Bouih acknowledge that both female and male detainees experienced sexualised and gendered violence, wherein the act of violence was specific to the ‘feminisation’ of male prisoners and the ‘masculinisation’ of female prisoners. The silence around sexual abuse of male victims/survivors was a consequence of masculinity being constructed as dominant and strong, while sexual passivity is associated with femininity. Meanwhile, women detainees were stripped of their names and given male names. Sexual abuse and threats of rape were designed to humiliate and de-value them, as what traditionally defines women and their femininity in Morocco is their virginity and purity (Menin, 2014).
These descriptions of gendered violence demonstrate the domination of detainees by prison guards and state officials, and the particular ‘disposability’ of prisoners. Acts of sexualised torture, sexual abuse and sexual exploitation were instrumentalised to delegitimise the political agency and mobility of prisoners, as well as to humiliate and instil fear in victims/survivors.
Transition and the Establishment of the Truth Commission
In light of both internal and external pressure, King Hassan II in 1990 established the CCDH (also known as the National Consultative Council on Human Rights) as an advisory body on “matters concerning human rights,” with the aim to promote and protect these rights (USIP, 2004). Moreover, it was tasked to establish and implement legal reforms as well as record wrongdoing and provide redress where appropriate. The CCDH enabled the release of detainees and further motivated public discourse and protest for truth seeking. The king publicly warned citizens against criticising the monarchy, stating that those considered guilty would be dealt with accordingly. Furthermore, the king was exempted from any responsibility for his involvement in inciting violence. Hence, the CCDH failed to adequately address past political violence (Loudiy, 2018).
The CCDH recommended that an official body compensate victims of past human rights violations, which resulted in King Mohammed VI establishing the IAC in 1999. The IAC was tasked to deliver compensation to victims of forced disappearance and arbitrary detention. According to ICTJ (2009), across the four years of its work, the IAC looked at roughly 7,000 cases and awarded up to USD 100 million in reparations. However, there was criticism from both victims/survivors and their relatives for the lack of transparency and full disclosure of the involvement of the government in past abuses, particularly the monarchy.
In 2001, a symposium was held with members from leftist organisations and representatives of political parties, including the Moroccan Organisation for Human Rights (OMDH), Moroccan Association for Human Rights (AMDH) and Moroccan Forum for Truth and Justice (Forum Vérité et Justice, FVJ) (Guillerot et al., 2011, p. 16). Particularly the FVJ, which included former political prisoners, campaigned for an independent truth commission to deal with the Years of Lead and recommend reparations (Hazan, 2006). Prior to the establishment of FVJ, transitional justice in Morocco was led by victims/survivors and their families (Loudiy, 2018).
Following this symposium, the FVJ submitted a proposal for an independent truth commission in Morocco. The CCDH adopted the proposal as an effort to deepen the democratic transition and made a formal recommendation to Mohammed VI. In 2003, the king approved the CCDH’s recommendation and passed a royal decree for the establishment of the IER (Guillerot et al., 2011, p. 16). The IER was formally inaugurated in January 2004.
The IER was mandated to “(1). Establish the truth about past violations; (2). Provide reparations to victims and families; and (3). Recommend measures to prevent future violations.” The commission was authorised to investigate human rights violations committed between 1956 and 1999 and to identify both institutional and individual responsibility for these violations (ICTJ, 2009).
Mandate and Scope in Respect of CRSV
With respect to sexual and gender-based violence, the commission’s mandate indicated no scope for these crimes. Instead, its focus was on past gross human rights abuses in general.
The mandate used gender-neutral language in identifying victims as “person[s] who was subject to arbitrary detention or forced disappearance.” Additionally, under “reparation of damage,” when referencing a victim, the mandate stated that “in case the victim died or his/her fate could not be determined, the reparation of the damage will be affected in favor of his/her heirs of legal successors” (IER, 2004, p. 4).
Truth Commission Operations
The IER made no mention of the violations suffered by women, nor did it detail the differentiated impact of the violations on women in its mandate (Guillerot et al., 2011, p. 8). However, once the commission was established and the testimonies of victims/survivors were documented, the IER adopted a gender dimension in its methodological approach intended to be applied to different aspects of its work (IER, 2005a). Yet, with the inclusion of only one woman out of the 17 appointed commissioners, the commission failed to wholly commit to the adoption of a gender-sensitive approach (Guillerot et al., 2011).
The 17 commissioners were chosen by the king, with recommendations from the CCDH (USIP, 2004). They included nine members of the CCDH and six former political prisoners and leftist activists, including the commission’s President Driss Benzekri, who was the co-founder of FVJ and secretary-general of the CCDH (Grotti, 2005). The remaining members were from civil society. Significantly, of the six former political prisoners, Latifa Jbabdi, a well-known feminist activist who headed the Union of Female Action and was a founding member of the Moroccan Association for Human Rights, was the only female commissioner (Hazan, 2006; Guillerot et al., 2011).
The commission held public hearings, up to seven, that are said to not have had capacity for more than 120 persons selected from different regions, types of violations committed and detention centres (Guillerot et al., 2011, pp. 23-24). This was an effort for balanced representation in capturing the crimes during the Years of Lead. The commission sought the “most compelling” testimonies for these hearings, which were recommended by IER staff as well as human rights organisations. Despite this public call, feminist and women’s rights organisations did not suggest cases to the IER. The female testimony givers, who made up 27% of the participants, were recommended by the IER, often at the behest of Latifa Jbabdi. Despite the presence of women, the female witnesses followed a common pattern seen across truth commissions globally wherein women rarely speak of their own violations, instead focusing on the violations experienced by their male relatives (ICTJ, 2009).
Importantly, the king had two conditions concerning these public testimonies, which limited their impact. First, that they not mention King Hassan II as responsible for any of the crimes committed during the mandated period. Second, that they prohibit victims from naming their perpetrators or the individuals involved in their suffering (Loudiy, 2018).
Additionally, the IER organised private hearings, also known as closed-door hearings, which were not intended for the public or coverage by the media. Participants in the closed-door hearings were identified by the commission as “major witnesses.” Up to 70 people took part in these hearings, with no women present (Guillerot et al., 2011, p. 23).
As a result of the gap in its mandate on women’s experiences, both directly and indirectly, during the Years of Lead, the IER adopted a methodology after it was established to identify harms experienced by women (IER, 2005a, p. 75). The IER introduced separate closed-door individual and group hearings as well as public hearings for testimony from female victims and witnesses to document “the formal sexual division of roles,” in order to examine the gendered nature of some of the violations committed. Also, they studied a sample of summaries of requests submitted to the commission by both female and male victims and documented the resulting differentiated harms and experiences with regard to gender (p. 76).
The commission sponsored an independent qualitative study on gender and political violence, which resulted in a report titled “Women and Political Violence during the Years of Lead in Morocco,” authored by Nadia Guessous (2009). This study is based on fieldwork that covered seven regions of the country, with testimony from women ranging in age, cultural and social groupings, socioeconomic status and categories of violations, and women who were involved in different political roles (IER, 2005a, p. 76).
Additionally, women’s associations, in collaboration with the IER, wrote summary reports on the experiences of women to formulate draft recommendations for individual and collective reparations. To highlight the gender dimension of the conflict, the commission organised a gender workshop to include local voices of male and female victims of human rights violations to discuss and recommend proposals for reparations (IER, 2005a).
During the course of its work, the IER reviewed and made decisions on a total of 16,861 individual petitions for reparations (ICTJ, 2009).
Truth Commission Final Report
The IER’s final report does not provide a definition of either sexual and gender-based violence or conflict-related sexual violence. However, it does document and acknowledge sexual violence under its conclusions concerning gender-specific violations of human rights. Additionally, the final report references international norms and laws, specifically regarding reparations for injuries resulting from gross human rights violations both on a theoretical level and in practice (IER, 2005a).
The final report documents the distinctive character of the violations to which women were subjected. Generally, women experienced the same violations as men, including arbitrary detention, enforced disappearances, compulsory displacement, death, torture and sexual exploitation. Examples of violations experienced exclusively by women include: forced nudity and inappropriate body searches that often occurred in view of relatives and men; observation in toilets; offensive, sexual and humiliating insults like being called prostitutes; sexual harassment; and threats of rape and in some cases rape (IER, 2005a, p. 77; IER, 2005b, p. 113). Equally, the final report documents the impact of these violations on female victims, including deepened feelings of insecurity and anxiety, physical and psychological pain, a sense of brokenness and despair, and a sense of dirtiness and shame in the event of sexual violence (IER, 2005a, p. 77).
As mentioned above, women were not given preferential treatment during the Years of Lead as a result of their gender and instead in some cases it heightened their vulnerability. Equally, pregnant women were not spared, with many experiencing violations before or during giving birth. The commission’s final report states that pregnant women in detention were exposed to poor hygiene, torture and sexual violence, including rape. Such conditions resulted in miscarriages and, in the event a woman gave birth, she was without medical assistance. New-borns had no postnatal provisions such as clothing and breast milk, and in most cases were separated from the mother. As a result of these conditions, many babies died post-partum.
Similarly, mothers were detained with their children and, because of the conditions mentioned above, a number of children died in detention. The final report further states that children were used as a psychological weapon to terrorise, pressure and manipulate women to confess to crimes of which they were accused. Reportedly, this included torturing mothers in front of their children (IER, 2005a).
Concerning detention, the final report concludes that women suffered acutely in conditions of detention because of experiencing their menstrual cycle without access to sanitary pads and a hygienic environment where there was no possibility to bathe. Additionally, starvation was used as a torture method, which resulted in low nutrition that was heightened by the impact of menstruation (IER, 2005a, p. 79; IER, 2005b, p. 114).
The only mention of male victims of sexual violence in the final report is under the title “Torture and Ill-Treatment” (IER, 2005b, p. 113). The commission reports that threats of rape, insults and defamation to demean dignity and torturing a family member or relative, or threatening the same were used as methods of psychological torture for both female and male detainees.
Despite the IER stating that sexual violence was prominent, with women as the largest victim group, the final report does not document it as systematic or subject to instructions given by authorities (IER, 2005a, p. 78).
Truth Commission Recommendations
The majority of the commission’s recommendations are general. The IEC made 17 recommendations related to redressing human rights violations and 98 sub-recommendations. Despite the gender neutrality of most of the recommendations, the commission did make a few recommendations that focus on women and victims of sexual violence.
The commission affirmed the need for a qualitative revision of the Family Code to consolidate legal guarantees for the rights of women and children and provide support for the family on the basis of justice and equity (IER, 2005a, p. 102).
Under the recommendation regarding “Pursuing Adherence to the Conventions of International Human Rights Law,” sub-recommendations include that “the Optional Protocol to the Convention on the Elimination of all forms of Discrimination against Women, should be ratified, and the reservations held by Morocco about some provisions of the said convention should be withdrawn,” and that “the statute of the International Criminal Court should be ratified in completion of Morocco’s signing up to it, while examining the constraints raised” (IER, 2005a, pp. 104-105; IER, 2005d, p. 80).
Under the recommendation for “Rehabilitating Penal Policy and Legislation,” sub-recommendations include “(3) Consolidating the latest revision of the Penal Code by including a clear and detailed definition of violence against women, (3.a.) adopting international criteria in the field and enunciating more severe sanctions in case of women being subject to violence in all its different forms, (3.b.) including rape by officers of apparatuses entrusted with enforcing the law, (3.c.) and broadening the scope of the criminalization of sexual harassment to include various spheres (instead of limiting it to the workspace as stipulated recent amendments), (3.d.) and adopting the obligation to place women in custody under the responsibility of women officers” (IER, 2005d, p. 82).
Under the recommendation for “Promoting Human Rights through Education and Awareness-raising,” sub-recommendations include “mainstreaming a gender approach into the various stages of the educational process, including the compilation of textbooks” (IER, 2005d, p. 86).
Under the recommendation for “Completing the Process of Promoting and Protecting Women’s Rights,” sub-recommendations include “(1.a.) Consolidating and capitalizing the important gains achieved in the field of promoting women’s rights and, (1.b.) completing the process of reform in this field by (1.b.1) laying down a comprehensive, (1.b.2) integrated and forward-looking national strategy aiming at rehabilitating and empowering women, (1.b.3). and drawing them out of their vulnerable position by (1.b.3.1) combating illiteracy, (1.b.3.2) poverty, (1.b.3.3) discrimination and violence, (1.b.3.4) and developing their participation in public life and decision making (1.b.3.4.1) by establishing and consolidating incentive measures; (2) A national mechanism should be created to promote and protect women’s rights (2.b.) and to follow up the implementation of public policies in the field, (2.b.1) invested with the prerogatives (2.b.2) and provided with the means necessary to accomplish its task; (3) Counselling centres for women, (3.1) including psychological and legal aid should be consolidated both institutionally and geographically for women victims of violence. (3.2) Their services should be available to women victims of the past of violations” (IER, 2005a, p. 113)
Like most of the recommendations, the ones for reparations are general and specific to the mandated human rights violations. However, the commission did establish a criterion specific to the inclusion of gender, wherein a lump sum of between 10 and 20 percent is added to the total amount received for violations of female recipients. For the compensation for ill-treatment and infringement of dignity, the commission recommended that “the financial value of the two limits is raised when the victim is a woman” (IER, 2005c, p. 40). It is the same for reparations for torture and health conditions not covered by a medical programme.
Under the heading “Material Injury Reparations for Victims of Rape Are Established,” the report states, “(1) Compensation is to be paid for rape on the basis that it is a unique violation; (2) Utilization of a lump sum on the basis of complete equality between all the victims,” with the appropriate compensation determined in each case (IER, 2005c, p. 45).
Implementation of Truth Commission Recommendations
The IER presented its final report to King Mohammed VI on 30 November 2005. The king approved the publication of the report in January 2006, with the CCDH tasked to follow up and supervise the implementation of the recommendations. Importantly, several IER staff members were already in the CCDH, including Driss Benzekri, who was president of the IER. This signalled that there would be continuity between the recommendations and implementation.
The CCDH established a working group on gender to monitor the status of women’s rights and encourage the withdrawal of all human rights reservations (CCDH, 2009). Focusing on the institutionalisation of its gender approach, the CCDH established a gender committee as part of its operations, but little has been reported on the progress of this committee.
As a commitment to the non-repetition of gross human rights violations and impunity, the IER final report recommends Morocco’s ratification of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and withdrawing the reservations that Morocco had made against some of its provisions (IER, 2005d, p. 80). Reservations were made as they were considered incompatible with the shari’a law. These included, “Article 9(2) grants women equal rights with men regarding the nationality of their children; Article 16 which spells out principles of gender equality within family and marital relationships; Article 2 that speaks to the state’s obligations towards gender equality; and, Article 15(4) which regulates the individual’s right to freedom of movement and the freedom to choose residence and domicile” (Darhour, 2019, p. 90). The reservations were withdrawn in 2011, which included the reform of the Constitution to include provisions towards gender equality.
Significantly, the Moroccan government declared its commitment to these provisions to the extent that they do not clash with state obligations, which were summed up as meaning national security concerns, shari’a or any other religious obligations, or national legislation (Darhour, 2019).
The United Nations Development Fund for Women (UNIFEM) worked with the CCDH to promote human rights for women via transitional justice in Morocco. They initiated a number of projects as a means to encourage the integration of gender concerns into the implementation of the commission’s recommendations via institutionalisation, support for associative activities for economic, social and cultural development, promotion of dialogue among local actors concerned with gender and women’s human rights and raising awareness of past violations based on an approach informed by gender (CCDH, 2009; Guillerot et al., 2011). Overall, UNIFEM contributed to the financing of various projects in efforts to support the implementation of the IER recommendations (CCDH, 2009, p. 11).
However, more specifically, the UNIFEM-CCDH collaboration initiated a national forum on gender and social justice on 25 November 2008, in Rabat; organised a workshop for local stakeholders in selected regions on obstacles of gender mainstreaming and how to overcome them; networked women with local women’s organisations; and capacitated a national workshop on 28 September 2009, as a means to disseminate information on the advancement of women’s rights and their role in transitional justice processes in Morocco. They also disseminated the English and Arabic summary study on political violence against women and those who suffered from gross human rights violations; documented through short films the public hearings during the proceedings of the IER of women victims/survivors; and produced a documentary on gender mainstreaming in transitional justice processes from the Moroccan experience (CCDH, 2009, p. 73).
Regarding reparations, and the need for institution-building after the IER, the government implemented the Community Reparation Programme (CRP) in 2007 (CCDH, 2009; Guillerot et al., 2011). The National Steering Committee was created to monitor the CRP’s response to the IER recommendations. In total, 9,779 victims of enforced disappearances, arbitrary detention, political killings, injuries during urban riots, forced exile and sexual abuse were financially compensated or given other forms of reparation, including symbolic ones (ICTJ, 2009, p. 26).
One of the programmes developed under the CRP, with coordination with UNIFEM, focused on the role of women in transitional justice and projects to promote women’s rights (CCDH, 2009). The programme initially targeted 11 regions in Morocco; however, it is considered to have only been a success in three of the regions, namely Zagora, Errachidia and Figuig. These regions underwent a UNIFEM-CCDH pilot programme of gender-sensitive workshops, awareness-raising sessions, female local NGO support, economic empowerment and activities to strengthen the capacity of local partners and organisations to ensure women’s empowerment. The programme had little to no impact in the other regions as it faced capacity and technical constraints (CCDH, 2009; Guillerot et al., 2011).
The National Mutual Aid Department as well as the Ministry of Social Development, Family and Solidarity also contributed to programmes that supported vulnerable women and children (CCDH, 2009).
While the IER did not explicitly recommend it, in 2018, Morocco adopted a law on violence against women (Darhour, 2019). According to Human Rights Watch (2018), Morocco’s Law no. 103-113 criminalises some forms of domestic violence and establishes preventive and protective measures. It defines violence against women as “any act based on gender discrimination that entails physical, psychological, sexual, or economic harm to a woman.” Also, sexual harassment has been redefined to include “unsolicited acts, statements, or signals of a sexual nature, delivered in person, online, or via telephone” (Bencherif, 2018).
The law imposes stiffer penalties for forced marriage, sexual harassment in public spaces and cyber harassment. These include up to five years in prison and fines ranging from USD 200 to USD 1,000. Public authorities are expected to take preventive measures, such as programmes to raise awareness on violence against women. This includes providing specialised units to serve the needs of women and children in courts, government agencies and the security forces, including local, regional and national committees (Bencherif, 2018).
The law has its limitations, however. It does not distinguish the duties of police, prosecutors or investigative judges in domestic violence cases or fund women’s shelters. There is no definition of domestic violence and marital rape is yet to be criminalised. Additionally, there are few regulatory processes and infrastructure to encourage the implementation of the law and monitor the units or committees meant to implement it. According to Khalid Bencherif (2018), up to 90 percent of women in Morocco have been subjected to sexual violence but very few have received justice, which leads many victims/survivors not to report violations.
Other reforms related to women’s rights include the introduction of a quota system favouring women during elections, which occurred both in the 2002 elections (prior to the IER) and in the 2009 elections (after the IER). The government reformed the Personal Status Code into the Family Code, and launched the National Initiative for Human Development, which has increased literacy and improved the economic position of some women, particularly in rural areas. Additionally, it created an Advisory Commission for Equality for municipalities and regional councils. According to Fatima Echaabi (2018), despite this progress, Morocco continues to be an unequal society in terms of gender, particularly in the area of education.
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