INTRODUCTION
The concept of human rights is not easy to define, but it can commonly designate “all the innate rights of the individual that he possesses independently of any recognition of a political authority” (Gassin, Cimamonti, and Bonfils Reference Gassin, Cimamonti and Bonfils2011:3). These are universal rights “not in the sense that they would henceforth be universally recognized and respected, but in the sense that the demand for human rights has spread to the whole planet” (De Gouttes Reference De Gouttes2000:133; Robert Reference Robert and Terré2010:184). If the relationship between criminal law and human rights is affirmed “in the logic of conciliation and symbiosis” (Maistre Du Chambon Reference Maistre Du Chambon2012:436; Mincke and André Reference Mincke and André2022), the respective missions of the two fields sometimes seem opposed, especially when it comes to violent crimes, which call more for severity in their repression than for the respect for individual rights and freedoms.
As for criminology, it is a science that studies “the factors and processes of criminal action and determines, from these factors and these processes, the best means of struggle to contain and, if possible, reduce crime” (Robert Reference Robert and Terré2010:184). It differs from criminal law because it is so flexible that all disciplines combined can contribute to it (Lochak Reference Lochak2009:46; Sägesser Reference Sägesser2009:11). This is about its credibility and effectiveness (De Gouttes Reference De Gouttes2000:133). However, criminal law and criminology form an inseparable couple because, as J. H. Robert (Reference Robert and Terré2010) said, “law without criminology has no object and criminology without law has no limit”. Footnote 1 The objects of law and criminology are complementary. The latter contributes to the fight against crime, not by repression but by psycho-sociological and empirical studies of the criminal phenomena and the criminal in clinical and preventive perspectives.
Without dwelling on the various restrictive and extensive approaches of criminology, on the history of this discipline and its relationship with criminal law or human rights, any offence arouses indignation and calls for the involvement of criminal science, whether legal or empirical (Draï Reference Draï2004). Nevertheless, there are crimes of “terror” (Vervaele Reference Vervaele2014) that defy the attempts at explanations that science, all disciplines combined, claim to provide about them, as is the case with crimes against humanity, war crimes or even genocide. Historically, it is only gradually that positive international law has built up a body of incriminations making up the hard core of international crimes: “a set of serious crimes the commission of which affects all of humanity and offends the conscience and the law of all nations”.Footnote 2
In this sense and contrary to historical, legal-political and sociological studies, criminological studies in the field of massive violations of human rights are not numerous as in the field of common law (Pierre Reference Pierre2015:629). There are also several differences between these two criminal phenomena: for common law crimes, the justice mechanisms and roles are known, whereas, in mass crimes, the victims and the aggressors are sometimes confused. Also, the border between what is criminal and what is legitimate is not clear, and the standards applicable to the search for the truth, the identification of those responsible and the victims are to be sought in another logic than that of common law (Pierre Reference Pierre2015:629). Despite their rarity, some studies nevertheless exist, and criminologists attempt to approach these extraordinary crimes by specifying, for example, that terrorism is a rational criminal act, that is to say, it stems from a choice and pursues a goal, while genocide takes place because the conditions necessary for its commission have been met (Pierre Reference Pierre2015:629).
This contribution aims to share some criminological analyses of a particular form of criminality prejudicial to human rights, particularly terrorism and genocide. It is also a question of drawing attention to the role of criminology in understanding this criminal phenomenon as well as the characteristics of the perpetrators. How does criminology study this form of crime, and what are the conclusions of research in this area?
To provide some answers, we deal first with some criminological characteristics of massive violations of human rights, before looking at the role of criminology in their prevention, like in the example of terrorism prevention in Morocco.
SOME CRIMINOLOGICAL CHARACTERISTICS OF MASSIVE VIOLATIONS OF HUMAN RIGHTS: THE CASE OF TERRORISM AND GENOCIDE
Terrorism is an offence that directly targets the protection of the security and peace of a State, as stated in the Moroccan Penal Code in its first chapter: Crimes and offences against State security. It can also cause the death of the civilian population and violate the most basic human right, the right to life (Articles 218-1 to 218-9 of the Moroccan Penal Code). Several international texts have criminalized terrorism. The International Civil Aviation Organization (ICAO) has adopted many multilateral anti-terrorist conventions, as have the International Maritime Organization (IMO) and the International Energy Agency (IEA), as well as the United Nations (UN) within its framework, such as: the Convention for the Suppression of Terrorist Bombings, adopted on 15 December 1997; the International Convention for the Suppression of the Financing of Terrorism, adopted on 9 December 1999, in New York; and the last one, the International Convention for the Suppression of Acts of Nuclear Terrorism in 2005. State terrorism is one of the thorniest problems, especially when States have on their territory a structural practice of serious human rights violations by State agents or by private forces under their control. Footnote 3 Concerning genocide, it is not currently considered a crime by Moroccan criminal law. However, intending to harmonize its penal legislation with the new 2011 Constitution, a draft Law No. 10.16 tending to modify and complete the Penal Code criminalized genocide and crimes against humanity. This is in Articles 488-1 and 448-1 to 448-5, respecting Article II of the Convention on the Prevention and Punishment of the Crime of Genocide established under UN General Assembly Resolution 260 A (III) of 9 December 1948. The latter states that:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
-
(a) Killing members of the group;
-
(b) Causing serious bodily or mental harm to members of the group;
-
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
-
(d) Imposing measures intended to prevent births within the group;
-
(e) Forcibly transferring children of the group to another group.Footnote 4
Terrorism in general, and especially State terrorism, also qualify as State macro-crime and genocide, and have some common characteristics.
Among genocide’s features are:
-
(1) Objectification and dehumanization of the other;
-
(2) Destructive obedience;
-
(3) Identity-based crimes;
-
(4) Radicalization;
-
(5) Inhibition or devaluation of the superego;
-
(6) Blurred boundaries between justice, victim and respect for human rights.
Objectification and Dehumanization of the Other
Daniel Zagury, an expert psychiatrist, describes the hardening processes among genocidists, terrorists and child soldiers. He specifies the mechanisms favouring the crimes committed, for example, by the Hutu genocidists: functional cleavage, cutting off any association between values, personal stories and victims; reversal of moral references by acting in the name of leaders and of an ideology; objectification of the other by lowering him to the rank of an insect; and collective hubris reporting atrocities in group excitement (Brunet Reference Brunet2015:50).
Destructive Obedience
According to Johan Lepage (Reference Lepage and Coutanceau2017), while obedient behaviour facilitates daily interactions within hierarchical groups, history shows that it can also result in severe harm to others, such as acts of torture and barbarism, war crimes and genocide. The development of approaches such as social neuroscience can shed new light on the mechanisms responsible for “destructive obedience”, defined as obedience to orders leading to harm the dignity and physical or moral integrity of others (Lepage Reference Lepage and Coutanceau2017).
Identity-based Crimes
The crime of terrorism, like other mass crimes, e.g. genocide, mainly falls into the category of so-called “identity-based” conflicts, that is to say, “constructed on identity claims making it possible to exclude those designated as carriers of a different identity and who are presented by the initiators of the criminal project as threatening and at the origin of the evils of society” (Pierre Reference Pierre2015:630).
Radicalization
In terms of terrorism especially, criminologists explain how normal individuals, from a form of identity wandering, manage to espouse a cause and an extreme and radical mode of action as an illusory solution to their identity quest. For example, young people vulnerable to the discourse of indoctrination put forward by extremist Salafists are “fascinated by the call that offers them a new collective identity, legitimization and a banner. The candidate for enlistment declares himself a ‘Salafist’ to avoid identity cravings.” (Bencheikh Reference Bencheikh2016:8) Also, terrorists and genocidists carry a “cause”, an “ideal” that they identify with and justify violence against victims as the price to pay for the advancement of the cause. Some authors speak of a “capacitor” element that comes from “preachers who prepare magic formulas with an anaesthetic effect on the masses” (Bencheikh Reference Bencheikh2016:8).
Inhibition or Devaluation of the Super-ego
Psychological factors are at the fore in the explanation of this criminal phenomenon, especially the constitution of the criminal personality and the relationship between the three authorities (the id, ego and super-ego). Analysis of the words of the young radicals by researchers has shown that they have a particular psychic organization where an ideal has “downgraded” the super-ego and devalued it. It emerges from their speech that they carry a “cause” that justifies their actions and an “ideal” that they identify with to the point where this seems to allow them to disregard any law (Brunet Reference Brunet2015:49). Remembering the inhibitory effect of the group already developed by Freud, we know that an individual would be able to perform certain behaviours, even very serious ones, which he could not commit when alone.
Blurred Boundaries Between Justice, Victim and Respect for Human Rights
Concerning often international and violent crime, massive violations of human rights in the form of genocide or crimes against humanity or even terrorism present a certain particularity. The nature of the victims, generally a group of individuals, and the violent character of the criminal acts lead the population to an immense feeling of terror and insecurity, demanding severe repression and minimizing human rights requirements (De Gouttes Reference De Gouttes2000:133). Contrary to common law crimes and in the face of the failure of the national system (for example, the Gacaca in Rwanda or Bashingantahe in Burundi) or even the dysfunctions of international jurisdictions, the reparation to victims of mass crimes has given rise to the establishment of new justice mechanisms, namely transitional justice (Truth and Reconciliation Commission in South Africa, Europe and North Africa) (Cario Reference Cario2022:174). We can say that these massive violations of human rights or generically mass crimes are those that can neither be easily punished nor easily forgiven, as Garapon (Reference Garapon and Garapon2002) would say.
THE ROLE OF CRIMINOLOGY IN THE FIGHT AGAINST MASSIVE VIOLATIONS OF HUMAN RIGHTS
The relationship between criminal law, criminal justice and criminology is not simple and does not always function in lasting peace in Western countries (Maistre Du Chambon Reference Maistre Du Chambon2012; Mincke and André Reference Mincke and André2022; Robert Reference Robert and Terré2010:184). Worse is the situation in developing countries because criminology is not or hardly integrated into public policies to fight crime.
In a recently published article on criminology in the service of the State, Mincke (Reference Mincke2022) wisely considers that criminology has a future only if the State gives it the necessary means for research, analysis and training of people to carry out its role. Admittedly, its role should not be overestimated to avoid any frustration or weakening of the relationship between criminal law and criminology, which is already strained. The role of criminologists must be moderate because they address questions of great complexity, and they cannot claim to establish perfectly reliable predictive models. Footnote 5
In addition, criminology attempts to shed light on the endogeneous and exogeneous factors that favour acting out to allow public decision-makers to adopt adequate and more-or-less effective and personalized measures for each category of delinquency, such as economic, environmental, juvenile, etc. As for the fight against mass crimes and violence deviating from any attempt at explanation and understanding, the situation seems more difficult for the reasons mentioned above (Gassin et al. Reference Gassin, Cimamonti and Bonfils2011:2). Nevertheless, control strategies exist and seem to have some positive effects, either by a renewal of concepts or by mobilization of innovative empirical approaches.
Critical Criminology for Strengthening Democracy
On the occasion of the publication by Editions Bruylant (Brussels) of the second volume of the Legal Digest of Human Rights in Africa (2000–2004), the Center for Research and Studies on Human Rights and Humanitarian Law (CREDHO) organized a seminar on the theme “Perspectives on human rights in Africa”. The participants demonstrated the seriousness of the massive human rights violations in the continent’s future. Indeed, explaining that democracy and peace are two inseparable themes and that fundamental rights can only flourish in a true democracy, the constitutionalist Gérard Conac underlined the importance of democracy in Africa, the only guarantee of sustainable economic development (Digneffe and Lufunda Reference Digneffe and Lufunda2008). For this reason, the fight against terrorism and other crimes against humanity, enemies of peace and democracy, is also a fight to guarantee the pre-eminence and better protection of human rights in Africa (Digneffe and Lufunda Reference Digneffe and Lufunda2008).Footnote 6
Democracy is the search for a balance between the collective direction of public affairs and respect for individuals. It aims to determine the contours of public policies through free debate. The work of critical criminology here is a form of contemporary criminology that consists of criticizing the institutions of positive law in light of theoretical criminology’s teachings and proposing new legal constructions arising from its teachings. Critical criminology tries to demonstrate the shortcomings of State repression, and it is seen as “a necessary enterprise of lucidity, inseparable from the democratization of our societies” (Mincke Reference Mincke2022). Indeed, knowledge in the human and social sciences is generally essential to the development of a society that wants to be democratic and that intends to progress with conviction and lucidity toward greater justice.
Criminology for the Prevention of Massive Human Rights Abuses
The accumulation of repressive and preventive models is still relevant to penal policy worldwide (United Nations Office on Drugs and Crime 2012).Footnote 7 Although the two terms may seem contradictory, “the prevention only makes sense if it is prolonged by repression, just as there is no treatment without a minimum of coercion” (Menhabé Reference Menhabé2019:194–5).Footnote 8 The two strategies are complementary, even though the prevention methods are more complex and have made it possible to develop a certain preventive criminology.
In some Western countriesFootnote 9 the relationship between criminology and criminal law has significantly improved, particularly when evaluating dangerousness and preventing recidivism. In Morocco, the Minister of Justice announced in July 2022 that a final vision for the National Observatory of Crime has been drawn up, including a division within the Directorate of Criminal Affairs and Pardons in the Ministry of Justice (L’Opinion 2022). Like international crime observatories, this body would provide an overview of trends in crime indicators and in the fight against recidivism. The involvement of criminologists, historians, sociologists, psychologists and lawyers is essential for the proper functioning of this institution.
In terms of terrorism, an international scourge violating the main rights to life and peace, several legislative reforms, as well as various conventions on police and judicial assistance, have been adopted. The fight against terrorism also takes innovative forms that focus on rehabilitation and reconciliation. Indeed, Moroccan prisons have been using the classification system since 2015 to individualize reintegration programmes to adapt to each category of criminals, particularly terrorists. The classification of prisoners (A, B, C) is based on an assessment of a commission of experts who assess the personality, the dangerousness and the percentage of recidivism.
We can also cite the “Moussalaha” or Reconciliation programme, which has had encouraging results. In a speech on 27 April 2022, the general delegate for prison administration and reintegration affirmed that 15 detainees had benefited from the “Moussalaha” (Reconciliation) programme in its ninth edition, bringing the total number of prisoner beneficiaries to 222 since its launch in 2017. The “Moussalaha” Programme was developed and implemented by the General Delegation for Prison Administration and Reintegration, using its own resources and in cooperation with the Rabita Mohammadia des Oulémas, the National Council for Human Rights (CNDH) and specialized experts. The concept evokes “reconciliation with oneself, with society, with the religious text and with the systems and norms governing society in its relationship with the individual and with institutions” (MAP Express 2022). Regarding the results of this programme, the senior prison administrator said that 156 of the detainees had been released, including 116 beneficiaries of a royal pardon, in addition to the reduction of the sentence for the benefit of 15 others, bringing the rate of inmates benefiting from a royal pardon to 63.27%. The “Moussalaha” Programme was expanded to include women detained under the anti-terrorism law during its fifth edition with 10 beneficiaries out of a total of 13 detainees, a participation rate of more than 77%, he said, stressing that all the beneficiaries of this special edition have been released, including eight with a royal pardon and two others at the end of their sentences (MAP Express 2022).
Criminology for Transitional Justice
Much work has been undertaken in Morocco within the framework of transitional justice to promote the protection of human rights, breaking with criminal practices, and achieving genuine reconciliation between victims and perpetrators of serious crimes. Transitional justice refers to a process by which a country seeks to come to terms with its past regarding all its crimes committed and human rights violations (Slimani Reference Slimani2013). Despite the lack of research in this area, there is no doubt about the relationship between criminology and restorative or transitional justice. An example of this in France is the Association for Research and Applied Criminology, which prepares programmes with “above all a psychological aim”, using appropriate tools to reconcile “models and practices in connection with motivational, temporal approaches, psychotherapeutic and rehabilitative criminological models” (Cario Reference Cario2022:266). Morocco has also had the experience of transitional justice: The Equity and Reconciliation Body issued a series of recommendations in its final report. These revolve around three axes: ensuring constitutional reforms; implementing a national strategy to fight against impunity; and ensuring the follow-up of recommendations. Several of its recommendations have emerged since the adoption of the new Constitution, and the CNDH is monitoring their implementation. Footnote 10
Criminology’s key question is why one becomes a criminal; how to reduce and control crime is the objective of all criminal sciences. Criminology, being “the scientific study of the criminal phenomenon” and “the science of crime” (Gassin et al. Reference Gassin, Cimamonti and Bonfils2011), is not limited to the exploration of common crime, but it marks its interest in all forms of crime, even the most inhuman and cruelest. As we have recently witnessed, there has been an emergence of a green or environmental criminology (Manirabona and Koutouki Reference Manirabona and Koutouki2016; South and White Reference South and White2016) and sociology of white-collar crime.Footnote 11 We can say that a criminology of massive human rights violations follows this evolutionary path.
CONCLUSION
In conclusion, crime is a challenging object of study, especially concerning crimes of a certain gravity and complexity, such as massive human rights violations. However, nothing can stop the determination of criminologists and psychologists to explore the mysteries of any criminal act, especially in Western countries where criminology is a fairly developed theoretical and empirical science. In Southern societies, criminology must have an increasingly important place to support the role of the State in response to and prevention of crime.
Among the recommendations to be made, especially concerning the lack of interest in Moroccan public policies in the field of criminology:
-
The integration of the scientific and criminological dimensions into the management of public affairs;
-
Supporting the dynamism of researchers in the field of criminal sciences, in particular by facilitating access to information in State institutions;
-
Strengthening teaching and research in criminology by creating specialized institutes and funding and integrating researchers into legal professions;
-
Instead of mistrust about criminology and criminologists, on the contrary, it would be more effective to adopt a policy of exchange and collaboration between the various actors, public decision-makers and researchers.
Acknowledgements
I thank Professor Emilio Viano who honoured us with his presence at the symposium in May 2022 in Rabat on criminal justice and human rights. I thank him warmly for his encouragement and valuable advice.
Amina Slimani is a professor of higher education at Mohammed V University in Rabat. She teaches criminal law, criminal procedure and criminology. Her research areas are the relationship between criminology and criminal law, recidivism, rehabilitation, criminal justice and human rights, and criminal misconduct.
