III. ABOUT THIS REPORT

Wherever possible, Human Rights Watch conducts research at the site where the abuses occur. Algerian authorities have granted us visas only twice since 2000, preventing us from visiting the country on a regular basis. We were nevertheless able to collect much information from families of the "disappeared," Algerian human rights lawyers, activists, organizations, and the media.

We also solicited information from Algerian authorities on several occasions, notably in a detailed letter sent on May 16, 2002 (attached as Appendix 2). Authorities did not provide a single written response to requests for information that we submitted over the last few years.

A number of government officials received the Human Rights Watch delegation that visited in May 2000. They provided us with information that has been incorporated into this report. Official viewpoints and information have also been collected also from reports in the media and from the reports of other organizations and delegations that have visited Algeria. However, during Human Rights Watch's most recent visit in October-November 2002, no officials other than the head of the President's human rights commission, the National Consultative Commission for the Promotion and Protection of Human Rights (Commission Nationale Consultative de Promotion et de Protection des Droits de l'Homme, CNCPPDH), responded to requests for meetings.

This report is a follow-up to Human Rights Watch's first report on state-sponsored "disappearances," researched during our 1997 mission to Algeria and published in February 1998.³ That report, published when the issue was first attracting attention in Algeria and abroad, featured twelve case studies as a sample.

The focus of the present report is to evaluate everything that Algerian authorities have said and done to address the thousands of outstanding cases of "disappearances" in the past five years. This report also covers the parallel issue of persons who are missing after having been abducted by armed groups fighting the government.

Acknowledgments
We wish to thank officials who met with us during our May 2000 visit, including representatives of the ministries of foreign affairs, justice, interior, and national solidarity. We also wish to thank Moustapha Farouk Ksentini, president of the CNCPPDH, for receiving us in November 2002.

We are grateful to the many human rights activists and journalists who provided information, reflections, and logistical assistance. Five organizations - the two Algerian human rights leagues, SOS Disparus, Somoud, and the Association of the Families of the Disappeared of Constantine - were particularly helpful. Most of all, we thank the relatives of the "disappeared" and abducted who shared their testimony, dossiers, and insights. We could include in this report only a sample of cases. However, we hope that the testimonies presented here demonstrate that each case of "disappearance" is a tragedy, and that the issue will not be resolved until every family receives an adequate response concerning the fate of their relative, and the perpetrators are brought to justice.

Special recognition is due three persons who assisted us during our mission in 1992 who subsequently "disappeared": rheumatologist Charif Benlahreche of Constantine, journalist Djamel Fahassi of Algiers, and a third young man who must remain nameless.

This report was edited by Hanny Megally and Joe Stork, executive director and Washington director, respectively, of the Middle East and North Africa division of Human Rights Watch; and by Widney Brown, deputy program director of Human Rights Watch. Wilder Tayler, the legal and policy director, provided legal review. Research assistance was provided by Samir Ben Amor, Juliette Abu Iyun, consultants to Human Rights Watch, as well as by intern Juan Valdivieso. Mohamed Abdel Dayem, an associate with the Middle East and North Africa division, assisted with translation from Arabic. This report was prepared for publication by Mohamed Abdel Dayem, Patrick Minges, Human Rights Watch publication director, and Veronica Matushaj, Human Rights Watch photo editor.

A Note on Terms: "Disappearances" and "Abductions"
The term "disappearance" is used to connote a case where state agents or their associates have taken a person into custody and do not acknowledge holding that person, or do not disclose the person's location. The definition in the U.N. General Assembly's Declaration on the Protection of all Persons from Enforced Disappearance (see below) does not specify a minimum period of illegal, unacknowledged detention before a case is classified as a "disappearance." This report examines cases where the person has "disappeared" not for hours or days, but rather for many months or years.

In Algeria, the security forces are not the only party that has taken into custody persons who have subsequently "disappeared." Armed groups fighting the government have also abducted hundreds, if not thousands, of persons since 1993, some of whom have been later released or found dead, and others who are missing to this day.

The terminology describing these acts in the Algerian context is not used consistently by all who refer to them. In general, the term "disappearance" (disparition in French) is used to refer to acts attributed to state agents or their explicit allies, such as armed civilian patrols. The term "abduction" (enlèvement in French) refers to acts attributed to armed groups calling themselves Islamist. The perpetrators might also be criminal gangs with little if any political affiliation. This report observes this distinction in using the terms "disappearances" and "abductions." We put the former term between quotation marks as a reminder that the person did not disappear in the literal sense.

Algeria's International Human Rights Obligations
The U.N. General Assembly's Declaration on the Protection of all Persons from Enforced Disappearance (hereinafter the U.N. Declaration on "disappearances") provides an authoritative legal description of the phenomenon of "disappearances." In its introduction it describes "disappeared" persons as those who are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.⁴

The crime of "disappearing" a person is not found in Algerian law. However, the penal code criminalizes some of its constituent elements, namely illegal arrest and detention, in Articles 291 and 292 (see Appendix 1 for text).

A widespread or systematic pattern of "enforced disappearances" is a crime against humanity. The notion of "crimes against humanity" refers to acts that, by their scale or nature, outrage the conscience of humankind. The most recent definition of crimes against humanity is contained in the Rome Statute of the International Criminal Court, which entered into force on July 1, 2002.⁵ The Rome Statute provides that "enforced disappearances" are a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" (Article 7). Algeria has not yet ratified the Rome Statute, although it has signed it.

The principle that "enforced disappearances" constitute crimes against humanity has been affirmed by other declarations and treaties. The U.N. Declaration on "disappearances" termed "the systematic practice" of "disappearances" to be "of the nature of a crime against humanity."⁶ The Inter-American Convention on the Forced Disappearance of Persons, adopted in 1994 by the General Assembly of the Organization of American States, states that the "systematic practice of the forced disappearance of persons constitutes a crime against humanity."⁷

The disparate components of the crime of "disappearance" are also expressly prohibited under international human rights law; many violate customary international law. "The act of enforced disappearance constitutes a multiple human rights violation," notes Manfred Nowak, who is the U.N. Commission on Human Rights' independent expert for examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance. Nowak is also a former member of the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID).⁸ The rights that are violated are set out in the International Covenant on Civil and Political Rights (ICCPR)⁹ and Algeria, as a state party to the ICCPR, is obligated to respect them. They include:

Article 6(1). Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 9(1). Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
(2). Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
(3). Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release...
(4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Article 14(1). All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

A large number of other international treaties, including the U.N. Convention against Torture, Cruel, Inhuman and Degrading Treatment or Punishment,¹⁰ which Algeria has ratified, also prohibit specific aspects of violations of human rights that occur during "disappearance."

The most detailed exposition of pertinent legal principles is to be found in the U.N. Declaration on "disappearances." Although it is not binding under international law, the Declaration nevertheless reflects the consensus of the international community against this type of human rights violation and provides authoritative guidance as to the safeguards that need to be implemented in order to prevent it. Four key principles affirmed by the Declaration are that "disappearances" cannot be justified under any circumstance; that "disappearances" are continuing offenses, exempt from statutes of limitation; that their perpetrators should not be eligible for amnesty from prosecution; and that their victims and their survivors have a right to compensation.

The Declaration's Article 7 states:

No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.

Article 17 calls "disappearance"

a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified.

Article 18 states:

Persons who have or are alleged to have committed [acts of enforced disappearance] shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction.

However, under Article 4,

Mitigating circumstances may be established in national legislation for persons who, having participated in enforced disappearances, are instrumental in bringing the victims forward alive.

International jurisprudence and standard setting of the last ten years have consolidated the view that those responsible for crimes against humanity and other serious violations of human rights should not be granted amnesty.¹¹

This point is emphasized by expert Manfred Nowak in his 2002 report on "disappearances" to the U.N. Commission on Human Rights:

As the [U.N.] Human Rights Committee rightly concluded, in the case of particularly serious human rights violations, such as enforced disappearances, justice means criminal justice, and purely disciplinary and administrative remedies cannot be deemed to provide sufficient satisfaction to the victims. Perpetrators of enforced disappearance should, therefore, not benefit from amnesty laws or similar measures.¹²

Article 19 of the Declaration states:

The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependents shall also be entitled to compensation.

Further guidance on compensation is found in the "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law," drafted by M. Cherif Bassiouni, the U.N. special rapporteur on the right to restitution, compensation, and rehabilitation for victims of gross violations of human rights and fundamental freedoms:

15. Adequate, effective and prompt reparation shall be intended to promote justice by redressing violations of international human rights or humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered.

16. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for its acts or omissions constituting violations of international human rights and humanitarian law norms.

17. In cases where the violation is not attributable to the State, the party responsible for the violation should provide reparation to the victim or to the State if the State has already provided reparation to the victim.

18. In the event that the party responsible for the violation is unable or unwilling to meet these obligations, the State should endeavour to provide reparation to victims who have sustained bodily injury or impairment of physical or mental health as a result of these violations and to the families, in particular dependents of persons who have died or become physically or mentally incapacitated as a result of the violation. To that end, States should endeavour to establish national funds for reparation to victims and seek other sources of funds wherever necessary to supplement these.

19. A State shall enforce its domestic judgements for reparation against private individuals or entities responsible for the violations. States shall endeavour to enforce valid foreign judgements for reparation against private individuals or entities responsible for the violations.¹³

Nowak, in his report to the U.N. Commission on Human Rights, states, "In the case of enforced disappearance, which is a particularly serious and continuing human rights violation committed with the very intention of evading responsibility, truth and legal remedies, reparation is of the utmost importance, not only as a matter of redress for the individual victims, but also as a pre-condition for establishing truth, justice and peace in the societies affected by such practices."

3 Human Rights Watch, "`Neither Among the Living nor the Dead': State-Sponsored `Disappearances' in Algeria," A Human Rights Watch Report, vol. 10, no. 1(E), February 1998, online at www.hrw.org/reports98/algeria2 (retrieved February 19, 2003).

4 United Nations, "General Assembly Resolution 47/133 dated December 18, 1992," (New York: United Nations, 1992), A/RES/47/133.

5 United Nations Doc. A/CONF.183/9*.

6 United Nations, "General Assembly Resolution 47/133 Supplement #49 at 207, adopted December 18, 1992," (New York: United Nations, 1992), A/47/49.

7 Online at http://www.oas.org/juridico/english/Treaties/a-60.html (retrieved February 19, 2003).

8 United Nations Commission on Human Rights, "Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission resolution 2001/46" (New York: United Nations, 2002), E/CN.4/2002/71, p. 36.

9 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of December 16, 1966; entered into force March 23, 1976.

10 Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of December 10, 1984; entered into force June 26, 1987.

11 For example, on July 7, 1999, the Special Representative of the Secretary-General attached a disclaimer to the Sierra Leone Peace Agreement, saying "The United Nations interprets that the amnesty and pardon in article nine of this agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law." United Nations Secretary-General, "Statement on July 17, 1999 referring to the "Sierra Leone Peace Agreement" (New York: United Nations, 1999). See also, Commission on Human Rights, resolutions 1999/34 and 1999/32; the Annual Report of the U.N. Committee against Torture to the General Assembly, 09/07/1996, A/51/44, paragraph 117; and U.N. Human Rights Committee General Comment 20, April 10, 1992.

12 Report by Nowak, E/CN.4/2002/71.

13 United Nations Commission on Human Rights, "Item 11/d of the provisional agenda of the 56^th session, dated January 18, 2000" (New York: United Nations, 2000), E/ CN. 4/2000/62. It is available online at http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/
42bd1bd544910ae3802568a20060e21f?Opendocument (retrieved February 19, 2003).