"I realized that what I said was stripped of its context," says Amina Bouayach on the "political prisoners" debate.
Rabat – I followed with great interest the reactions raised by one of my answers during a press interview on July 22, 2019. Upon analyzing some of these reactions, I realized that what I said was stripped of its context. The debate was imbued with political tensions and confusion, and the question of “who is a political detainee” in all its complexities was consequently swept under the rug. It is a nearly existential question that every country must answer at least once in its history.
So, recalling the National Council for Human Rights’ (CNDH) approach based on interaction, openness, and transparency, and which the council has always used with victims and actors, and based on the council’s role in contributing to intellectual debate and public awareness of human rights issues, I will try to reorient the debate to focus on its original subject, hoping that we all come to a common understanding of “political detention.”
I will try to be precise and concise and make a contribution embedded in the Moroccan context. This contribution is not – in any way – a legal document, but perhaps just a preamble to collective thinking on a subject in which legal, political, and philosophical considerations are intertwined and overlapping.
Notes and Definitions:
It should be noted, first of all, that very few media outlets have actually noticed that there is no agreed-upon definition of the term “political detainee”.
According to Amnesty International, a political detainee is “a person detained for political reasons, i.e. for opposing, with or without violence, their home country’s authority (whether or not the State to which they belong is internationally recognized). This category, according to Amnesty International, includes:
- A person accused or convicted of an ordinary crime carried out for political motives, such as murder or robbery carried out to support the objectives of an opposition group;
- A person accused or convicted of an ordinary crime committed in a political context, such as at a demonstration by a trade union or a peasants’ organization;
- A member or suspected member of an armed opposition group who has been charged with treason or “subversion”.
We can note that this definition includes both someone who has exercised their right to expression and someone who committed a crime such as assassinations for political purposes. It, therefore, combines two distinctly different categories. It is unacceptable to confuse a peaceful protester with an individual accused of murder even if the motives of the latter are “noble.” This confusion opens the door to manipulation and ambiguity due to the connotation of the term “political detainee”. The term gives the impression that significant arbitrary injustice was committed for the purpose of revenge against an innocent person who merely practiced their basic rights. Therefore, many Amnesty International branches do not refer to this definition when they describe cases of detainees who have committed acts which may be considered crimes.
The Parliamentary Assembly of the Council of Europe considers that a “political prisoner” is a person deprived of their individual liberty, provided that they meet at least one of the following criteria:
(A) if the detention breaches one of the fundamental guarantees set forth in the European Convention on Human Rights and its Protocols, in particular, freedom of thought, conscience, religion, expression, press, and freedom of assembly and creation of associations;
(B) If the arrest is for political reasons and has nothing to do with any violation of the law,
(C) If the duration or circumstances of the detention, for political reasons, are clearly disproportionate to the offense for which the person or the accused was convicted;
(D) If, for political reasons, the person concerned is detained in circumstances that constitute discrimination against them compared to other persons; or
(E) If the detention is the result of a clearly flawed procedure, which appears to be due to the authorities’ political motives.
This concise but also practical definition is closely related to several topics in the human rights context, particularly arbitrary detention, fair trial conditions, and guarantees of fundamental rights. Although it is limited to fundamental rights as provided for in the European Convention on Human Rights, it remains useful nonetheless. It is clear that this definition – if it applied to the Moroccan context in the past – does not currently do so.
These definitions, however, refer to the basic concept of “political motive” to define a “political detainee”. The “political motive” concept is much more difficult to define than the concept of “political detainee”. In this contribution, I will use the term “political motive” according to a definition which I consider broad and flexible so as not to limit the debate. The definition is as follows: “an act has political motives if it can be ascertained, without a doubt, that it was done to serve the interests of a “political party “. I, therefore, consider that the concept of “political motive” is a prerequisite for talking about “political detention.”
There is only a fine but crucial line between the two. It is possible that a “political motive” was behind the arrests during the events of Al Hoceima or Jerada. A number of human rights defenders considered the possibility, but it cannot be undeniably proven. It is also unfair to not question the matter given the duration and circumstances of the demonstrations. I will not decide now on this matter, which, in all cases, comes second after the question of violence.
The question of violence and international law
The complexities of the events of Al Hoceima and Jerada stem from the fact that the use of violence dominates any other descriptions based on “political motive or motives.”
But before diving into the matter, it must be emphasized that there is no room here to talk or debate over legitimacy vs. illegitimacy, or violence vs. peaceful demonstration because CNDH has already issued a memorandum calling for the abolition of any penalty against participants in undeclared peaceful protests. On July 12, 2019, the Council also called for allowing new forms of public expression which has taken social networks as a platform. The Council did not address the issues of violent demonstrations, because in such cases, considerations other than the rights of expression, creation of associations […] and protest raise to the surface.
I share the prevailing view which affirms that committing acts of violence prevails over and exceeds the concept of “political motive” for carrying out arrests. Once a demonstration can be described as “violent “, the idea of “political motives” is no longer valid and becomes secondary, except in cases of self-defense or necessity, and the same applies to forms of violence committed in the context of hate crimes or incitement to violence.
Any use of violence strips the person of the title of “political prisoner” and leads to judicial proceedings. This legal requirement is recognized and universal, and constitutes a general element of the sovereignty of the State of law.
National Human Rights Council Framework
In this context, it is necessary to recall that CNDH is a national constitutional institution with three basic functions: the prevention of violations, and the protection and promotion of human rights.
Therefore, the Council must constantly seek precision in assessing cases of human rights violations in our country, be it proven violations or mere allegations, in the light of not only legal, but also humane and moral responsibility. Additionally, the development of an effective and successful advocacy and victim support strategy deserves particular attention in terms of describing any violation.
With regard to the events of Al Hoceima and Jerada, the Council has observed and followed, within its mandate, the demonstrations and protests for several weeks. If the youths who were arrested during these events met the above-mentioned criteria for the title of “political detainee”, the determinants of the Council’s work would have been clearer; its work even easier. The Council’s president would have clearly and unhesitatingly called for the immediate release and compensation of the detainees in accordance with Chapter 23 of the Constitution and Article 9 (5) of the International Covenant on Civil and Political Rights, instead of seeking amnesty for them, (Article 58 of the Constitution). Since these criteria were not met, the use of the term “political detainee” by CNDH would have been, in this case, misplaced, counterproductive, and irresponsible, and would have been a precedent and an exception at the national and international level.
How can these young people be described, if they are not “political detainees”? Personally, I consider them victims of a faltering and flawed measure, which could neither guarantee a decent living and economic and social rights of citizens, nor respond to their legitimate demands. This faltering, which I described on July 12, 2019 as a “performance crisis” caused a real “trust crisis”. Therefore, I called for the establishment of a new sociopolitical charter as the only way out of the crisis facing our institutions. The charter would be based on a participatory approach which can take into account the social and cultural characteristics of each region in its historical dimensions. Its purpose would be to establish a regional structure which meets the national expectations of citizens and which is based on a human rights approach. This human rights approach would take into consideration the national and international human rights obligations of our country.
All of my many meetings with the families of the detainees included a basic requirement expressed by every mother, every father, every sister, and every wife: “Release the youths”! The exceptional and tragic circumstances of the events that led to the arrest of these young people and the difficult humanitarian circumstances of the families have mobilized the entire nation behind them. Therefore, CNDH will continue to support them by listening to them, expressing empathy, showing appreciation, consideration, and the commitment and dedication in the Council’s duty.
After all the anger, after following emotions, after listening, today, it is time to think. CNDH will, therefore, continue to hold discussions and exchange opinions with different society actors to agree on the concepts that have been raised, but also on the political, economic, social, cultural, and legal consequences of what has happened. In addition, the Rabat – Driss Benzekri – Human Rights Institute will study the issue of “political detention” in cooperation with national and international experts.
The report, which will be published by CNDH after being discussed during its General Assembly, which is only a few days after the inauguration of its members, will focus on the conditions of arrests and trials, as well as allegations of torture and ill-treatment. It will also be an opportunity to fully assess these tragic events, which will remain in our country’s memory and which have divided Moroccans and left profound traces in our collective memory.
It is time to address all these effects. CNDH intends to carry out this work by exercising its full powers and defending its independence. What remains certain is that the Council will never betray the trust of the victims, their families, and all Moroccans.
Translated by Ennaji Kawtar