The "Gdeim Izik" Trial
The "Gdeim Izik" Trial
Final Pleadings, Replies of the General Attorney and the Civil Parties
This report was prepared by Nicol Bussolati in his personal capacity. The opinions expressed hereby
are the author's own and do not necessarily reflect the view of the Associazione Nazionale Giuristi
Facts.
The 8 October 2010, a Saharawi mass protest camp was set in Gdeim Izik, not far from
Laayoune, the administrative capital of the occupied Western Sahara territories. In the early
morning of 8 November 2011, the Moroccan soldiers forcibly evacuated the camp which
at the time hosted about 20.000 persons, children, women and old people included with
tear gasses and water cannons. According to the Moroccan authorities, during the clashes
with the Saharawi activists, 11 soldiers were killed. 24 Saharawi were subsequently arrested
Trial history.
The 24 Saharawis were firstly tried before the Rabat Permanent Military Tribunal (MT)
which, according to the Code of Military Justice in force at the time, held jurisdiction over
the case on the basis of the passive personality principle (whereas the victims were members
of the armed forces). On 16 February 2013 the MT sentenced: nine defendants to life
sentence; four to 30 years of jail; seven to 25 years of jail; three to 20 years of jail; two to 2
years of jail. The main pieces of evidence grounding the decision were their confessions to
the police, which the defendants contested had been signed under torture. On this very
point, with regard to one of the accused, Ennama Asfari, in 2016 the UN Committee against
against Torture (CAT/C/59/D606/2014), recognizing that torture had been used in order to
extract confession.
The MT judgement was subsequently brought before the Supreme Court, following the
procedural rules of the Moroccan military justice system. The Supreme Court delivered its
judgment on the 27 July 2016, finding the MT judgment to be null and void, mainly due to
the lack of evidences grounding the decision (and its motivational defect). The Supreme
Court recognized that: since the promulgation of a new Military Justice Code in July 2015,
the case should be send back to a civil court; that, on the basis of the crimes contested, the
Court of Appeal have jurisdiction ratione materiae. The case was thus sent back (rather
interestingly) to the Appeal Chamber of the Rabat Court of Appeal, as a court of last resort.
Since this decision, a series of issues related to the nature of the trial (i.e. is it a court of first
or second instance?) remain unresolved. These issues are likely to be addressed only in the
judgment of the Appeal Chamber, although they clearly affect the procedural norms that
Therefore, the case is now pending before the Appeal Chamber of the Rabat Court of
Appeal even though it is concretely hosted in the courtrooms of the Sale Court of First
Instance.
At the hearing of the 11th July 2017, the Royal General Attorney (GA) and the Civil Parties
(CP) replied to the final pleadings of the Defence. The re-replies of the Defence and
possibly the judgment are scheduled for the 18th of July 2017.
Issues.
A series of problematic issues appear to permeate the whole trial. These will be addressed
in a subsequent paper, as they do not form part of the material observation of the trial done
on the 11th of July 2017. The following list briefly mentions the main issues at stake (with no
- Role of international law in the trial (related to the status of Western Sahara and of
the defendants, to the CAT decision, and, more generally, to the direct applicability
Chamber, applicable procedural rules (in particular, with regards to the active
- Possible influence of extra juridical factors (e.g. media, politics) on the trial;
- Separation of the position of one of the accused, due to his health problems (although
the case appeared to remain the same, his examination, at the time of the final
The hearing started at 10 am, in a courtroom located in the Sale Court of First Instance.
Outside the building, approximately 300 protesters, with large banners and loudspeakers,
- four judges on their front bench, plus the presiding judge (the only one who publicly
spoke);
- the Royal General Attorney, who, according to the typical structure of an inquisitorial
procedural system, was sitting at the right of the judges, at their same level;
- the civil parties (on the left side of the room), together with a few Saharawi
- the defence (in the center of the room), together with the families of the victims;
Observers from Belgium, France, Denmark, Germany, Norway, Portugal and Spain (and
myself, representing Italy) were present together with staffs from four European
embassies. Interestingly, some observers (Belgian and French, sitting with the civil parties)
were wearing their official court robe, although they did not have an active part in the
proceeding.
The Royal General Attorney commenced his replies to the final pleading of the defence.
Overall, his discourse was not easy to follow. It lacked basic logical consistency, as he was
touching upon crucial issues without duly developing them, or skipping between
be heard as witnesses. He then briefly commented the trial history, from its start at the MT,
Secondly, he addressed the Supreme Courts decision on one of its main points: the lack of
material elements supporting the contested crime of acts of violence against public officials
leading to their death (Article 267 Penal Code). By quoting case law from the Moroccan
(judg. n. 1601/1997), the Syrian and the Egyptian Supreme Courts, he stated that, in case of
group violence, it is not required to demonstrate the existence of a material element directly
linked with the event for each of the accused. Yet, Yet, he failed to justify such statement by
association) exists in the case at stake. Only later on, he stated that evidence shows that an
accused had rented a car which was used to run over a soldier, and that some witnesses
testified on having seen some of the accused distributing weapons among the protesters.
Moreover, with regards to the existence of a criminal association, he stated that the
prosecution already indicated precisely both the place where the criminal agreement was
made (Algeria), and elements proving the existence of the required dolus of the association
(intention to commit crimes against persons and property in furtherance of the agreement).
Finally, he notices how the existence of the criminal association as demonstrated by the MT
was not contested by the Supreme Court [ed.: all these points, related to a pivotal issue of
Returning to a mere chronological description of the GAs reply, he then noticed that many
A fourth point raised by the General Attorney has been that the expert witness reports
regarding autopsies [ed. the selection procedure of the experts remains unclear to me] had
been inserted in the file since March 2017, and thus were for long time available to the
defence.
Parties, the General Attorney quoted a series of domestic ordinary and constitutional norms
as well as international treaties and declarations recognizing the right of the victims to
reparation and justice. While discussing about international law, he struck two blows
against the table and damaged the microphone. At this point, a 15 minutes technical break
was called.
When the hearing resumed, the General Attorney discussed the procedure followed by the
soldiers in evacuating the camp. It stated that the applicable law was duly followed [ed.:
without any detailed analysis of it]; that no crime had indeed been contested to the soldiers;
that the soldiers had the precise duty to aid the Saharawi children, women and old people
involved in the clashes; that no civil victims among the Saharawi were reported; that the
militaries used only sticks while the Saharawi activists employed knifes, Molotovs cocktails
and cars; and, finally, that the UN Report n. 249/2011 states that only sticks were used, and
that the soldiers were attacked by the activists, and not the contrary.
In response to the defences point challenging the arbitrary selection of the accused, the
GA repied that the arrests were made in flagrante delicto and under indications of
eyewitnesses.
In reference to the allegation of torture, he stated that these had been examined, in
accordance to the Istanbul Protocol, by legal experts appointed by the Court. These experts
had investigated the correlation between existing wounds of the arrestees and possible acts
of torture, and between their wounds and the declared acts of torture. The experts,
With regards to the photos used for the recognition of the accused, the GA stated that these
Finally the GA evidenced that besides Moroccan soldiers also three Saharawis testified
The final request was thus to reject all the requests of the defence, and to uphold all the requests of
the prosecution.
At this point, the Civil Party took the stage.
The first lawyer opened the argument with some peculiar remarks on a supposed relation
He then requested the Court to consider a different legal qualification of the facts. He
acknowledged that the Supreme Court taking into account the contested crime of violence
against public officials, leading to death, envisaged by Article 267 of the Penal Code
evidenced the lack of a causal nexus between the acts of the accused and the events [ed.:
although he talked about relation between acts and victims]. The CP stated that the Court
has a legal duty ex Art. 432 of the Code of Criminal Procedure [ed.: although the lawyer
erroneously quoted two different articles] to requalify the facts on the basis of the
evidentiary results as one of the crime of the Section III (Des crimes et delits contre la surete
interieure de l'Etat) of the First Chapter (Des crimes et delits contre la srete de lEtat) of the
Code, also considering the existence of a wider dolus specialis of the accused. Indeed, being
association crimes, these crimes do not require the same causal nexus between act and event
as Article 267: such requalification (or the correct use of the complicity or conspiracy
doctrines, as the Prosecutor seemed to suggest) may solve one of the biggest substantive
legal problem of the trial. However, according to the author of this report, it is doubtful that
the Appeal Chamber has the power to such a strong requalification of the facts at this stage
of the trial. This may indeed be contrary to the duty to conform to the Supreme Courts
The presiding judge then stopped the CP, requesting to limit its reply to the challenge the
pleadings of the defence. A sort of discussion between the two actors arose, lasted for a
The second lawyer (the former President of the Bar Association) hinted to the public nature
of the victims. He closed his replies by stating your role in history, Mr. President, is not only
to render justice to the victim, but also to stop all conspiracies against Morocco.
Finally, the presiding judge decided to allow two lawyers of the defence to re-reply. He
recognized his discretionary power to allow the defence to take the stage after the replies
(although the Code, at Article 428, clearly states that the Defence always has the last
word).
The hearing finished at 14.30 approximately. The next hearing, with the replies of the