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IV. Mandate of the ERC

On January 7, 2004, Mohammed VI, acting on the recommendation of the ACHR, inaugurated the Equity and Reconciliation Commission. “The purpose of this commission,” he said, “is to ensure that Moroccans make peace with themselves and their history, that they free up their energy, and they join in building a modern and democratic society, which is the best protection against backsliding.”

While the commission does not have the word “truth” in its name, the king made clear that he considered it a truth commission. “The work accomplished by the previous commission [the Indemnity Commission], and the final report that you will prepare to set forth the facts, within a finite period of time, mean that we consider your body to be a truth and equity commission,” he said. ²⁰  The preamble of the decree defining the ERC’s statutes also calls the new body “a commission of truth and equity.”

Government officials repeated the king’s assertions that the mission of the commission was to definitively close the file on human rights abuses, and that it was a landmark in Morocco’s democratic transformation.  In its written report to the U.N. Human Rights Committee on Morocco’s compliance with the ICCPR, the government stated: “The appointment by King Mohammed VI of the members of the Equity and Reconciliation Commission represents a decisive step towards completing the process of democratic transition in Morocco.”²¹

That said, the ERC remains an advisory body, and the commission’s referential texts specify nowhere the obligation of the state to implement or even to seriously consider the ERC’s recommendations.  The only domain where the ERC’s actions are understood to compel state action is in the area of compensating individual victims and their beneficiaries.  As explained by ERC President Driss Benzekri, under Article 9.4 of its statutes, the ERC rules on the amount due each applicant, and the office of the Prime Minister makes the payments.²²

Morocco’s civil society activists generally welcomed the creation of the commission. According to AMDH President Abdelhamid Amine, this step “permitted a reopening of the file of grave violations of the past after the palace had declared it to be closed, and did so on a basis that was broader than just financial compensation, which was the case with the Indemnity Commission.”²³

Truth commissions are usually created at a time of political transition – after a civil war, the ouster of a dictatorship, or a long period of oppression − and are presented as mechanisms that help to consolidate a more democratic future.  The timing of the creation of the ERC was unusual in that Morocco has not experienced any institutional break with the past, but only gradual reforms.  Some of the institutions and individual officials implicated in the gross violations of the past remain in place.

Powers of the ERC

Three documents serve as “texts of reference” for the ERC, as noted on its website: the ACHR’s recommendations to the king on establishing the ERC, dated October 16, 2003; the king’s speech of January 7, 2004, on the creation of the ERC; and the royal decree of April 10, 2004, specifying the statutes of the ERC. It is the last of these that defines the ERC’s mandate, powers and structure.²⁴

The decree specifies that the ERC reports to the king.  The ERC is not a court or a judicial body and “will not determine individual responsibility” (Article 6).  It shall complete the work undertaken between 1999 and 2003 by the Indemnity Commission (IC), in determining the level of compensation the state should pay to victims and beneficiaries in cases of forced disappearance and arbitrary detention (Article 7). In charting the mandate of the ERC, the decree refers to “grave abuses” but specifies only “forced disappearances” and “arbitrary detention” that took place between 1956 − the year of Morocco’s independence from France, and 1999 − the year that Hassan II died and the IC was created.

The decree calls on the ERC “to establish the nature and the extent of grave violations of human rights committed in the past, to place them in context and in light of norms and values of human rights, as well as the principles of democracy and of the rule of law” (Article 9.1).  In its reporting, the ERC is to determine “the responsibility of organs of the state or of any other party for grave human rights violations” (Article 9.3).

The ERC’s research will culminate in “an official report providing the conclusions of the investigations, inquiries, and analysis conducted into the violations and their context” (Article 9.6).

The decree specifies the means by which the ERC is to carry out these tasks: it is to “investigate, collect information, consult official archives and gather from every party information and facts that are useful to discovering the truth” (Article 9.1).  The ERC is to “carry out research into cases of forced disappearance where the person’s fate remains unknown, and to make every effort to investigate the facts that have yet to be clarified, to reveal the fate of persons who ‘disappeared’ and to propose adequate measures in those cases where the person is determined to have died” (Article 9.2).

The ERC is also charged with deciding the level of compensation the state is to pay victims of grave human rights abuses or their beneficiaries for the material and moral harm they suffered.²⁵ The ERC’s responsibility over compensation is not limited to financial compensation: it is also to prepare recommendations and proposals to ensure psychological and medical care and social reintegration for victims who need it, and to help them resolve any problems related to the administration, the law, employment, and property (Article 9.5).

Finally, the ERC must “recommend measures designed to memorialize the human rights violations as well as to guarantee their non-repetition, remedy their effects, and restore confidence in the primacy of the law and respect for human rights” (Article 9.6).

In terms of its scope and mandate, the ERC thus goes beyond what the former Indemnity Commission was empowered to do.  For one thing, the ERC is responsible for producing what promises to be an unprecedented account of the forms of repression practiced since independence, and thus, a major contribution to the writing of Morocco’s history. According to ERC President Benzekri, the full version of the report that goes to the king will include the names of persons that the ERC has identified as suspected perpetrators – even if the ERC cannot itself make these names public (as per Article 6 of the decree).

With respect to reparations, the ERC’s broader mandate when compared to that of the IC constitutes a recognition that the victims and their families have a right to forms of reparation in addition to monetary compensation, and that past violations against individuals create obligations toward a society as a whole.

The ERC spelled out its expansive notion of reparations at a seminar it held on September 30-October 2, 2005, as it was nearing the end of its mandate.  A document it circulated at this event states:

Individual reparation encompasses compensation, medical and psychological readaptation, the social rehabilitation of victims who need such reintegration, and resolving all administrative, legal, and professional problems, as well as questions relative to recovering property.

General and collective reparation encompasses the formulation on the one hand of recommendations to establish safeguards to ensure a break with past practices and on the other hand to ensure the rehabilitation of regions that suffered violations and were marginalized economically and socially, and also the preservation of memory.

The document also states that the ERC’s conception includes “integration of the gender dimension in the policy and the plan of action concerning reparation.”   At the seminar, ERC President Benzekri presented orally the substance of this document.²⁶

Composition of the ERC

The Equity and Reconciliation Commission is made up of seventeen commissioners, including its president. Eight of the commissioners are also members of the ACHR.  The seventeen include six former political prisoners, including two who were forced into exile. One of those, Mbarek Bouderka, had been condemned to death in absentia. ERC President Benzekri spent seventeen years in prison because of his leftist opposition political activities.   His activism on behalf of the fight against impunity, particularly when he served as president of the Moroccan Forum for Truth and Equity, an organization he co-founded in 1999, made him one of the most respected figures in Morocco’s human rights movement. (In July 2005, Mohamed VI named Benzekri president of the ACHR, to serve concurrently with his post as ERC president.)

The recruitment of human rights activists and former political prisoners into the ERC gave credibility to the notion that the authorities intended to treat past human rights violations in a serious manner. Another commissioner is Driss el-Yazami, who, while joining in his individual capacity, is secretary-general of the Paris-based International Human Rights Federation (FIDH).

The ERC created three main working groups.  Seven commissioners sit in the group on reparations, six in the group in charge of investigations, and three in the study and research group. 

The ERC has a paid staff of about one hundred persons to help with receiving complainants, processing information, and other tasks.  They also have medical staff at their Rabat headquarters to assist victims with health needs stemming from the abuses they suffered.  The medical unit includes a psychiatrist, a nurse, and a social worker.

Like all Moroccan institutions created by royal decree, the operating budget of the ERC comes directly from the palace, one of the institutions whose alleged role in past abuses the ERC is supposed to investigate.  ERC President Benzekri dismissed concerns that this would impede the work of the ERC.  “We have the means to do our work properly,” he told Human Rights Watch.  “We can do what we decide to do.  Our only limitation is our own conscience.  I am the one who decides how the money is spent, and we are audited by the state accounting office.”²⁷

According to Benzekri, the ERC independently determines the level of financial compensation that the state is to award to victims of past abuse who apply for it.  The money issued to them comes from the state budget. “Our decisions on compensation are sent to the prime minister, and he signs the checks,” Benzekri said. He added that the state has not specified to the ERC any limits on the amount it can award, either overall or in individual cases.  

The ERC has not yet disclosed its criteria for determining how much compensation to pay in each case, nor are the criteria spelled out in the royal decree setting forth its statutes. According to the ACHR’s proposal for establishing the ERC, “When ruling on requests that are submitted to it,” the ERC should “pursue the activities of the Indemnity Commission…relying on the same arbitration basis and principles of justice and equity.”  However, as noted earlier, the IC’s action in this area drew criticism from victims and human rights organizations for a lack of transparency and of clear logic in determining compensation levels.²⁸

Article 7 of the ERC’s statutes states that it is “to reach a settlement of the issues of forced disappearance and arbitrary detention while working together with the government, with relevant public officials and agencies, human rights organizations, victims, their families, and their representatives.” The preamble calls on the ERC to take into account “the memoranda of national human rights organizations, representatives of victims, the bar associations of Morocco, and all national relevant national bodies, taking into account their conceptions and proposals as to how best to achieve a just and equitable resolution of grave human rights violations of the past.”

The ERC publicly declared its eagerness to work with victims of past human rights abuse, their families, and Moroccan civil society, including Moroccan human rights organizations.  It held working meetings with various civil society groups. The ERC has also received assistance from the New York-based International Center for Transitional Justice in various realms, including training in database development, the organization of public hearings, preparation of its final report, and comparative practices of reparation.