President Abdelaziz Bouteflika announced on September 20, 2003, a new “ad hoc mechanism” to address Algeria’s thousands of cases of “disappeared” persons. The mechanism, which will report to the office of the president, is the first mechanism authorities have established to deal solely with this issue. Bouteflika announced its creation in a speech covered on state television and delivered before senior government officials and powerful members of the military establishment.1 The speech reflected the growing acknowledgment of the state’s responsibility for resolving the tragedy of “disappearances,” in which several thousand Algerians were abducted, mostly by state agents, during the civil strife of the 1990s and remain missing to this day.
Two months after this high-profile announcement, the decree defining the commission’s mandate and powers was made public.The decree confirmed the president’s presentation of the commission as more of an “interface” between public authorities and victims’ families than as a commission of inquiry. While it speaks of investigations and possible compensation and assistance to families, the decree makes no explicit reference to any rights belonging to victims or to their relatives. With its weak investigative powers and narrow mandate, this new commission is unlikely to provide the measures of truth, justice, and restitution that will allow Algerians to reckon fully with this long-standing and continuing tragedy.
The decree creates the new mechanism as a temporary, ad hoc body within the institutional framework of 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), which reports to the president.3 President Bouteflika named Moustapha Farouk Ksentini to head the mechanism. Ksentini, a lawyer, continues to head the CNCPPDH itself.
For nearly a decade, state institutions charged with handling complaints of “disappearances” failed utterly to provide families with credible information about the fate or whereabouts of their relatives, or to identify persons or units responsible for carrying out “disappearances.” These include the now-defunct National Human Rights Observatory (Observatoire national des droits de l’Homme, ONDH), its successor, the CNCPPDH, and the regional offices that the Ministry of Interior established in 1998 to receive complaints of “disappearances.” These regional offices were structurally part of the security apparatus implicated in the “disappearances”; the ONDH and the CNCPPDH, while structurally independent of the security forces, lacked any statutory or de facto means of compelling security forces to cooperate with requests for information.
Algeria’s courts have also failed to provide remedies to the hundreds, if not thousands, of families who have filed cases concerning relatives abducted by the security services. President Bouteflika declared in a 1999 interview, “Algerian justice will spare no effort, conducted in the framework of the law, to seek solutions to [“disappearance”] cases fully documented with verified evidence.”4 However, lawyers queried by Human Rights Watch said they knew of no case that resulted in a court locating a “disappeared” person, alive or dead, or in identifying or charging members of the security forces for their role in a case of “disappearance.” Even when they produced eyewitnesses willing to testify, plaintiffs received no response whatsoever from the prosecutor's office or from the investigating judge, or the case remained “pending” with no progress reported, or the responsible judge ruled to close the file.
The new mechanism is endowed with few statutory powers greater than those of the earlier institutions that proved so ineffective in clarifying “disappearances.” The decree states that the mechanism shall be in charge of the “centralization and consolidation of all facts related to the question of ‘the disappeared.’” It will also be tasked with -“coordination among the different branches involved in handling the issue of resolving legal matters emanating from cases that have been resolved.” (This is presumably a reference to issues of civil status, inheritance, custody, and the like.) And the body will also “ensure regular communication with the families of persons declared as ‘disappeared.’”
However, in terms of the search for the truth, the mechanism’s mandate is limited to “identifying cases of alleged disappearances” and “determining the whereabouts of persons declared as ‘disappeared.’” It has no statutory mandate to establish what happened to persons from the moment they were taken into custody, or to identify persons or units implicated in their illegal detention and “disappearance.”
In pursuit of its objectives, the mechanism is “empowered” to:
The commission is tasked with “get[ting] the appropriate authorities to conduct the research necessary to locate persons declared as ‘disappeared’ and to carry out procedures to identify the bodies that are found.” However, neither the decree nor the president’s speech indicates that the body will have the power to compel testimony or the production of documents, or to conduct onsite inspections at will. It can make requests, but there is no threat of sanctions for officials who fail to cooperate with such requests. In light of this, the new mechanism will likely confront continued stone-walling by state agents when it comes to revealing the fate of persons who “disappeared” in their custody.
The mechanism is to “inform the families of persons declared as ‘disappeared’ of the result of the search undertaken and to orient them on the procedures to follow to resolve legal issues of civil status and inheritance emanating from the various situations.” Here, and in several other places, the decree implies that the “disappeared” are deceased. Nowhere does it include language pertaining to cases where a missing person may be found alive. For example, the commission is to “devise, in coordination with public authorities, measures to provide aid and compensation to the beneficiaries of ‘disappeared’ persons.” It is to “propose measures of financial or material assistance and psychological support to families of persons who have ‘disappeared.’” But it is not asked to draw up any plan for rehabilitating, providing psychological help for, or compensating persons found alive. Whether such cases exist is a matter for a thorough and independent investigation; the commission gets off on the wrong foot by implicitly pre-judging the question.
Of course, confirming a death to families who have been in agonizing uncertainty for years will bring a measure of closure and enable them to conduct their mourning. But such a disclosure needs to be done in a fashion that enables the family to verify the information if it so wishes. On this, the decree is silent.
From the decree, the president’s speech, and the many statements to the press made by Ksentini, it would appear that the new structure may be a vehicle for an eventual state admission of responsibility in an unspecified number of “disappearance” cases, and for initiating a process for compensating relatives.
Human Rights Watch welcomes steps by the state to acknowledge responsibility for “disappearances” and to fulfill the important right of families to receive compensation. However, unless the mandate and powers of the new mechanism are broadened considerably beyond the way they have been publicly presented so far, it will not fulfill Algeria’s obligations under international law. It will also likely to contribute little to helping Algerians “turn the page” on this traumatic issue.
First, the new mechanism, without strong powers to investigate, will be unable to provide families with concrete information about what happened to their relatives after their abduction. In Human Rights Watch’s view, the families’ right to know means the right to obtaining as full a picture of the “disappearance” of their relative as can be reliably assembled. They have a right to know, if they so desire, the motives and circumstances of the arrest; whether the “disappearance” was premeditated or spontaneous; and, if the victim died, the date, location, and circumstance of death.
If an investigative commission, using appropriately rigorous standards of evidence, identifies individuals or units suspected of perpetrating “disappearances,” their names should be referred to police and judicial authorities capable of taking appropriate action. In most cases they should also be rendered public, unless doing so could jeopardize a criminal investigation or could otherwise prejudice the interests of justice.
Algeria’s commission, by contrast, is unlikely in its current form to expose the perpetrators of “disappearances” or challenge the complete impunity that they have enjoyed. President Bouteflika declared in his speech that the mechanism “must not be seen as a commission of inquiry that would take the place of the appropriate administrative and judicial authorities.” On the one hand, the mechanism has no mandate to identify those persons or agencies suspected of responsibility for carrying out “disappearances.” But on the other hand, if this is the job of administrative and judicial authorities, they have done anything over the past decade to identify the perpetrators and bring them to justice.
On the question of whether the page can be turned on past atrocities while ignoring the identity of perpetrators, the Commission on the Truth for El Salvador provides a useful precedent. Its 1993 report named forty perpetrators from both sides of that country’s civil war, the majority of them Salvadoran military officers. The commission explained its action thus:
According to Thomas Buergenthal, one of the commissioners, the option of keeping the names confidential and transmitting them to Salvadoran police and courts for possible action was ruled out on the grounds that the justice system was “corrupt, ineffective, and incapable of rendering impartial judgments in so-called ‘political’ cases.”6
In Algeria, as elsewhere, it is important to release the information collected by a thorough investigation not only to the victims’ families but also to the public at large. The Algerian people have a collective right to information about past oppression as part of their national heritage, and also as a tool in their efforts to build safeguards against a recurrence of “disappearances” in the future.
President Bouteflika, rejecting the notion that the new mechanism would be a commission of investigation, presented it instead as “firmly based within the vast project of national reconciliation.” This was a troubling reference to the amnesty-driven policy of “Civil Harmony” that he implemented shortly after his election in 1999. The centerpiece of that policy, the Law of Civil Harmony, offered to armed rebels who surrendered a reduction or conversion to probation of the criminal penalties they would normally face.7 In practice, the law undermined individual accountability because authorities chose, in the vast majority of cases, to amnesty militants without investigating whether they had committed indiscriminate killings or other atrocities that were supposed to have been exempted from the amnesty.8
In a further indication that the new mechanism will contribute nothing to ending impunity, Ksentini was quoted on September 22, two days after the mechanism was announced, as opposing legal accountability for the perpetrators. “Algeria is not in a position to do it because the social ruptures are just too great,” he told Reuters. “With so many deaths and so many divisions in the country,” he said, “the state should apologize so that the page can be turned.”9
It is regrettable that the head of the new mechanism on the “disappeared” espouses a pro-impunity position that contradicts international law. Widespread and systematic “disappearances,” such as were perpetrated in Algeria over the past decade, constitute crimes against humanity. 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.10
The new mechanism may contribute to verifying "disappearances" and compensating families. But this does not negate the state's obligation to hold perpetrators accountable, whether or not the mechanism is itself the best vehicle for achieving this. Moreover, the persistence of impunity arguably makes it harder for Algerians to eradicate the practice of “disappearances” in their midst.
2 Presidential decree 03-299 of September 11, 2003, published in the Journal Officiel of September 14, 2003, online at www.joradp.dz. The Journal Officiel is normally published several weeks after the issue date.
3 The CNCPPDH was established by presidential decree 01-71 of March 25, 2001, published in the Journal Officiel of March 28, 2001, online at www.joradp.dz.
4 Interview, Middle East Insight, November 1999.
5 From Madness to Hope: The 12-Year War in El Salvador: Report of the Commission on the Truth for El Salvador, UN Doc. S/25500, Annex, 1993; reprinted in United Nations, The United Nations and El Salvador: 1990-1995 (New York: United Nations, 1995), p. 25, online at http://www.usip.org/library/tc/doc/reports/el_salvador/tc_es_03151993_mandate.html (retrieved November 24, 2003).
6 Thomas Buergenthal, “The United Nations Truth Commission for El Salvador,” Vanderbilt Journal of Transnational Law 27 (1994), p. 520.
7 For an English translation of the law, see http://www.algeria-interface.com/new/article.php?article_id=463&lng=e (retrieved November 24, 2003).
8 Amnesty International noted, “Consistent reports during the last three and a half years have indicated that individuals or groups of individuals who gave themselves up after 13 January 2000 have been allowed to return home immediately or shortly after their surrender, suggesting that they are being granted exemption from prosecution. Given that such measures do not fit within the framework of any legal provisions, they can only be described as arbitrary. Moreover, no investigations appear to be conducted into what human rights abuses, such as killings of civilians, these former armed group members may have committed.” Amnesty International, “Algeria: Steps toward Change or Empty Promises?” London: Amnesty International, 2003, online at http://web.amnesty.org/library/Index/ENGMDE280052003. See also Human Rights Watch, World Report 2002 (New York: Human Rights Watch, 2002), p. 407 online at http://www.hrw.org/wr2k2/mena1.html.
9 Paul De Bendern, “Interview: Algeria Should Apologise for Disappearances, Not Prosecute,” Reuters, September 22, 2003. Ksentini had earlier in 2003 come out in favor of a general amnesty: “The first beneficiaries of such an amnesty would be persons belonging to institutions accused of having carried out disappearances.... Such a measure would have the effect of halting all investigations. To be sure, an amnesty would benefit a certain number of criminals, but that’s the way it works, and it’s the best we can hope for to enable Algeria to turn the page and move forward. A general amnesty is in my view inevitable. All wars end thus, but it’s a political decision that will be made at a particular moment.” “Farouk Ksentini, président de la Commission nationale de protection des droits de l'homme : ‘Une amnistie générale est inéluctable,’” Le Monde, January 7, 2003. Ksentini also made similar arguments before Algerian journalists on October 6, 2002. See Mohamed Zaâf, “‘L’amnistie, c’est la paix civile,’” Le jeune indépendant, October 7, 2002.
10 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.” 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, online at http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2002.71.En?Opendocument (retrieved November 18, 2003).