Morocco, like Spain, has ratified the major international human rights treaties providing for the protection and care of children.13 Recent legislation and draft legislation seeking to improve some aspects of child protection has thus far been incomplete and limited in its implementation.14 Morocco's failure to fulfill its obligations to ensure children the protection and care necessary for their well being exposes unaccompanied child migrants to abuses prior to their departure and following their return. In many cases it has also contributed to the pressures some children feel to undertake the dangers of clandestine migration. A full discussion of Morocco's implementation of international standards regarding children is beyond the scope of this report. Instead, this chapter will focus on the most serious abuses faced by unaccompanied child migrants immediately prior to or following their being in Spain, including abuse by Moroccan police and the Moroccan authorities' failure to provide children with adequate protection and care.
Abuse in Police Custody Upon Return to Morocco
When we interviewed him in October 2001, fifteen-year-old Samir A. told us that he had been expelled from Melilla seven times in the three years he had lived in the city.15 He described his most recent expulsion in 2001. "The police came and picked us up," he said. "We went to the station. They talked for a while, and they took us to the border. They handed us over to the Moroccan police. We went to the Moroccan police station." He was held in the single holding cell at the station, a room about three meters by four meters. "I spent an entire day there-they didn't give us anything to eat," he said. "There were three Iraqis, five Senegalese, a mix of people, all together eleven people." Samir estimated their ages at between twenty-three and thirty-five. "I was the smallest of them all," he said. "I entered the cell at two in the morning. A policeman put his foot on my back and pushed me in." He remained there for the rest of the day. "If you asked to go to the bathroom, the police would come in and beat you," he said. "At one o'clock in the morning they threw us out onto the streets." He returned to Melilla the following day.
Unaccompanied children we interviewed in Ceuta and Melilla consistently told us that they suffered beatings and other ill-treatment at the hands of Moroccan officials when expelled to Morocco, often showing us scars or marks to corroborate their accounts. "In Morocco, the police search you. If you have anything, a knife or anything, they take it. Then they beat you with a baton. . . . Also they use an electrical cable. There's one police officer from Morocco who does this," `Abd al Hadi S. told us, showing us marks on his back that he said came from the electrical cable.16
Girls Hiba A. and Amal M. told us that if the Spanish police caught them they were invariably handed over to the Moroccan police, who often detained and beat them.17 "The boys go to a Center but the girls go to the border," said Amal. Amal described her treatment after Spanish police in Ceuta expelled the two girls to Morocco a few days earlier:
These accounts are similar to reports of abuses during expulsions conducted by Melillan authorities in 1998 and 1999, when summary expulsions were more frequent. "Before they built San Antonio, they would take everybody to Morocco. . . . There weren't educators or anything. They took you to Morocco, to the border. Before, when they caught you, it was easy to enter again. Now it's difficult. They used to take you to Morocco, and the police there would beat you and tell you to go," said `Abd al Hadi S., age fourteen.18
`Abd al `Aziz R. told us that when he was handed over to the Moroccan police in 1998, they took him to the holding cell in Beni Ansar. "They hit me. They slapped me and hit me with their fists. They used batons, too," he said, explaining that police did this to him at the border and again at the police station. He spent the night in the cell with two other teenagers.19
Salah S. described his 1999 expulsion, when he was twelve years old. "The first time I was expelled was about two years ago. They [the Spanish police] took us to the Moroccan police," he told us in October 2001. "They [the Moroccan police] put us in the lockup. They fined us, and they hit us. They used a plastic stick-it has metal inside it."20
Police Release of Children to the Streets
Moroccan police in Fndeq held thirteen-year-old Amal M. and her friend Hiba for a day before releasing the girls late at night. The girls admitted to the police that they were from Fndeq and answered questions about their families, but the police did not return them to their homes. "It was about 10 p.m. Moroccan time," Amal said. "They let us go by ourselves. No one from our families came to get us, we just went home."21
Once out of police custody, children typically spent hours and sometimes days or weeks first traveling back to the border and then waiting, in view of Moroccan police, for an opportunity to sneak past Spanish border guards. Fourteen-year-old Fares S. spent twenty days in August 2001 on the Morocco side of the Ceuta/Fndeq border, waiting to cross into Spain.22 Samir A., a fifteen-year-old from Fés, told us, "At one o'clock in the morning [the Moroccan police] threw us out onto the streets. I spent that day and the following night trying to get back in to Melilla. I went to one of the border posts, but they wouldn't let me enter. I tried at another border post, but they wouldn't let me enter there either. Finally I got through at 9 a.m. the next day."23
Failure to Protect Children Living Outside a Family Environment
Despite the large numbers of children living on the street, Morocco has no system in place to ensure that these children are returned to appropriate guardians or placed in institutions capable and willing to care for them. Moroccan law provides little guidance on what actions should be taken when a child is found outside of a family environment and in need of protection and care, and which government agencies are obligated to act in these circumstances. Children's rights activists, representatives of international government organizations present in Morocco, and even some Moroccan government officials acknowledge that existing child protection facilities are insufficient to meet demand, and for the most part fall far short of international standards for care.
Moroccan legislation provides two primary avenues for unaccompanied migrant children to be placed in protective care.26 One requires the court to declare a child to be abandoned; the other requires a child to be convicted of a criminal offense. Both are heavily reliant on judicial and police discretion and fall short of international standards for protection and care of children living outside a family environment.
Under the terms of the 1993 Decree Relating to Abandoned Children, a judge may declare a child to be abandoned and order the child placed in a state run or state recognized health or child protection institution, or placed in foster care under the kafala system.27 The decree states that the King's representative may "either spontaneously or based on notification from another party" request the court to issue a declaration of abandonment. However, it does not require the police or other private or government bodies to bring cases of abandoned children to the attention of the court, and the authorities do not routinely do so. In no case Human Rights Watch investigated did Moroccan police or other authorities ask the courts to declare an unaccompanied child migrant abandoned and in need of protection. With the exception of an official at the Ministry of Human Rights, activists and government officials we interviewed did not cite the decree as being used to address the problem of unaccompanied migrant children or street children. 28
An unaccompanied migrant child may also be placed in protective care following arrest for committing a criminal offense. The Penal Code and Criminal Procedures Code grant judges vast discretion to determine whether to return children over twelve to their parents, place them in a penal institution, or place them in a rehabilitative residential facility, and whether to return children under twelve to their parents or order an alternative placement.29 In theory, all unaccompanied migrant children living on the streets infringe the Penal Code's prohibitions on vagrancy and begging, and could be ordered placed in protective care.30 In practice, police in Fndeq, Beni Ansar/Nador, or Tangier rarely detain unaccompanied children on vagrancy or begging charges and judges generally do not order residential placements unless children have been charged with more serious crimes. When asked why police were not more active in ensuring that unaccompanied children in Tangier received appropriate care, the director of the government-run Tangier Child Protection Center noted, "there is no provision in our penal code that makes it clear that children who have been returned from Spain have committed a crime." This lack of clarity, he said, allowed the police wide latitude in how they treated unaccompanied children:
Only three of the thirty-five unaccompanied migrant children Human Rights Watch interviewed had ever come before a Moroccan judge or been placed in a Moroccan residential facility. Two of the children had been expelled from Spain roughly a year earlier, but had only come before a judge when police arrested them on robbery charges months later. They were being held at a Ministry of Youth and Sport-operated Child Protection Center pending a final court review of their cases at the time of the interview. The third child, fifteen-year-old Shihab R., had been expelled to Tangier from mainland Spain three times, and had come before a judge each time.
Shihab R. told us he was twelve the first time he was expelled. "I was in [Tangier Child Protection Center] for ten days before I escaped, and after that I tried again and went to Málaga." After about seven months in Spain he was expelled to Tangier again: "I was in the Ministry of Youth Center for about ten days and then they released me to my parents. I was at home for about eight months and then I came back to Ceuta." Shihab's most recent attempt to enter Spain took place about three months prior to our interview. "I took a truck (camión) train to Algeciras and then [the Spanish police] caught me as I arrived and returned me to Tangier. In Tangier the [Moroccan] police took me to the police station, then to a judge who let me go and I left for Tétouan and then directly to Ceuta, without seeing my family. The center in Spain spoke with my family in Morocco, but my family didn't know that I was being returned to Morocco." 32
Morocco's obligation under article 20 of the Convention of the Rights of the Child to provide special assistance and protection to children deprived of their family environment applies to all children in that situation, and not only to those suspected or convicted of a criminal offense. Moroccan authorities should act immediately to provide unaccompanied migrant children with appropriate care and protection, and such children should never be subjected to criminal sanctions for begging, vagrancy, or other minor offenses stemming from their status as unaccompanied children.
Lack of Appropriate Facilities
Government officials working with children at risk acknowledge that Moroccan child protection facilities are insufficient to meet the demand. The Tangier Child Protection Center is considered to be among the best of Morocco's sixteen facilities. Center Director `Abd al Hamid Azibou told Human Rights Watch that his center was the only one serving the roughly two million people in the Tangier/Chechaouene/Tétouan region, and was already functioning at capacity with a heavy case load of children charged with theft, burglary, drug or sex-related offenses. "If all the children in Melilla and Ceuta were returned there wouldn't be space for them," he said. "In fact, there is not space for all the children in Morocco who need this kind of specialized care."34
Judges have few alternative placements available when the Ministry of Youth and Sports facilities are full. Children arrested on criminal charges may be placed in facilities run by the Minister of Interior. UNICEF officials familiar with some of these facilities describe them as "inappropriate places of detention for children."35 Intended to provide a speedier resolution than the ordinary court process, these centers function as holding cells until a child's guardians come to take custody. "There is no education project, they shower and shave the kids and the kids escape as soon as they can and no one runs after them."36
According to activists, some judges place children in nongovernmental residential facilities, although nongovernmental organizations have no legal authority to act as guardians for children in their care. "None of the centers have legal status for placements," said Bayti's director Dr. Najat M'jid. "Instead we make a legal contract with the children and parents, or with the private sector if the child is over fifteen and in training. It helps the parents understand that we are not the child's guardian." 37
UNICEF officials also raised concerns over the quality of placements, with Olivier DeGreef, UNICEF representative to Morocco, noting "not all NGOs have a child rights approach, most are charities, or orphanages."38 Even activists like M'jid, with significant experience working with street children and unaccompanied child migrants, expressed doubt over Moroccan nongovernmental organization's ability to absorb and rehabilitate many of the children currently in Spain. "I don't support the return of children who have been in Spain for so long. It is impossible for any Moroccan NGO to take a child who has been on the Spanish street for so long and integrate them and give them a life project. Even if the NGOs try, the children go back to Spain."39
International Standards for Protection and Care
Among the rights the Convention on the Rights of the Child guarantees all children is the right to protection from violence and neglect, whether at the hands of private individuals or government agents.41 This protection should include preventive social programs and the "identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement."42 In cases where a child is deprived of his or her liberty, the deprivation must not be unlawful or arbitrary, and "shall be used only as a measure of last resort and for the shortest appropriate period of time." The child "shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so."43
The convention also recognizes the special needs of children who have suffered abuse or neglect, or who are living outside a family environment. Article 20 requires that "[a] child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State." States must "ensure alternative care for such a child," which "could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children."44 Article 39 requires states to take all appropriate measures to promote the rehabilitation of children who are victims of "any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts," and to do so "in an environment which fosters the health, self-respect and dignity of the child."45
13 Morocco has ratified the Convention on the Rights of the Child, the ICCPR, the International Covenant on Economic, Social, and Cultural Rights, the Convention against Torture, and the Convention against Discrimination in Education. In addition, in 1993 Morocco ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
21 Human Rights Watch interview, Ceuta, Spain, November 6, 2001. Morocco is on Greenwich Mean Time (GMT) throughout the year, while Spain is two hours ahead of GMT from the end of March through the end of October, and one hour ahead during the rest of the year. Ten p.m. Moroccan time would have been 11 p.m. Spanish time.
26 Moroccan personal status legislation also provides for other forms of child custody, including granting guardianship in the form of hadana or kafala to relatives or families who wish to care for a child in a home environment. These forms of custody are primarily used in cases of young children whose parents have divorced or died. See Decree 1-57-343 of December 6, 1957, Personal Status Code, articles 97-111, as amended by Decree 1-93-347 of September 10, 1993 (Morocco); and Law 33-97 relating to Wards of the State, promulgated by Decree 1-99-191 of August 25, 1999 (Morocco).
28 Hind Ayubi Idrissi, the ministry's children's rights counselor, told us that the 1993 Decree and Morocco's personal status legislation provided for the protection and care of unaccompanied child migrants. Human Rights Watch interview, Rabat, Morocco, October 29, 2001.
29 See Decree 1-59-413 of November 26, 1962 on the Penal Code, parts 13, 138, 139 and 140 (Morocco), and Decree 1-58-216 on the Code of Criminal Procedure, parts 514, 516, 517, 518, and 527, published May 5, 1959 (Morocco).
30 Part 326 of the Penal Code punishes any able-bodied person found begging by imprisonment for at least one month and up to six months, and part 329 of the Penal Code punishes any able-bodied person who has no known residence or means of earning a living or regularly practice a profession or craft if the person is shown to have refused work for pay or if the person cannot show that he or she has looked for work without finding it.
40 Article 3 of the Convention on the Rights of the Child requires states parties to "undertake to ensure the child such protection and care as is necessary for his or her well-being," and "ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision." Article 24(1) of the ICCPR states, "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State."
41 Article 19 of the Convention on the Rights of the Child requires states parties to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child." Article 37 further requires states parties to ensure that "[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment." Articles 2 and 16 of the Convention against Torture and article 7 of the ICCPR also prohibit torture or to cruel, inhuman or degrading treatment or punishment.
45 "States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child." Ibid., article 39.