Tom Malinowski, Washington Advocacy Director for Human Rights Watch, testified before the U.S. House of Representatives Committee on International Relations, Subcommittee on International Terrorism and Nonproliferation, on the current human rights situation in Algeria. Mr. Malinowski addressed the pattern of unsolved “disappearances” carried out both by the security forces and by armed groups fighting the government, the torture of suspects under interrogation, restrictions on press freedom, discrimination against women under the law, and a judiciary that lacks independence as well as Human Rights Watch's concerns about a possible general amnesty that would ratify the impunity enjoyed both by state agents and many armed militants for atrocities that, in some instances, rise to the level of crimes against humanity.

Mr. Chairman, members of the Committee, thank you for your invitation to testify on Algeria’s human rights record and the fight against terror.

Others on this panel will discuss the most recent elections in Algeria and the extent of political pluralism there. I will address a concern about the human rights situation: about the pattern of unsolved “disappearances” carried out both by the security forces and by armed groups fighting the government, the torture of suspects under interrogation, restrictions on press freedom, discrimination against women under the law, and a judiciary that lacks independence. Finally, I will explain our concerns about a possible general amnesty that would ratify the impunity enjoyed both by state agents and many armed militants for atrocities that, in some instances, rise to the level of crimes against humanity.

But first, let me say a few more general words about the relationship between protecting human rights and democratic freedoms and fighting terrorism. Everything I will say about Algeria today rests on the conviction that there is not a trade off between these two goals. Terrorism is obviously a threat to liberty, to the law and to the human rights values we hold dear. But terrorists are often the first to benefit when governments fail to uphold those values. It is precisely in societies where ordinary people have limited peaceful avenues for expressing their grievances that violent movements tend to thrive. When governments restrict free expression, shut down political parties, and punish peaceful dissent, they don’t hurt those who use violence to advance their aims. They hurt the moderate, democratic, political movements that need these freedoms to survive – the very forces that can be a counterweight to violent groups. And when people in such societies associate the United States with the governments that abuse their rights, this helps terrorist groups like al Qaeda to paint America as the enemy of the people of the Muslim world. This aids the terrorists in their struggle for hearts and minds.

This is why I welcome the Bush administration’s recognition that the fight against terror must rest in part on the promotion of democratic freedoms and human rights. But that recognition must be translated into consistent policies. And Algeria is an important test case.

Since the events of September 11, 2001, several U.S. officials have visited Algeria and commended that country’s response to armed insurgents. Assistant Secretary of State William Burns, for instance, said in December 2002 that Washington “has much to learn from Algeria on ways to fight terrorism.” Algerians have suffered the ravages of terrorism as much as any people on earth, and those acts deserve our full condemnation. Nevertheless, in human rights terms, Algeria, with its documented record of torture and “disappearances,” is in many ways a model of how not to fight terrorism.

In January 1992, an army-backed coup in Algeria halted national elections that would have given the Islamist Salvation Front a commanding majority in parliament. Isolated acts of terror had occurred before then in Algeria, but they became endemic after the electoral process was interrupted.

Estimates of the number of Algerians killed in political violence since 1992 range between 100,000 and 200,000. President Abdelaziz Bouteflika was quoted on February 23 as putting the figure at 150,000. In fact, there are no precise data on the number of those killed, or the breakdown of civilians, security force members, and armed militants among the victims, or the proportion of the killings attributable on the one hand to armed groups and on the other hand to the security forces and their civilian allies.

Civilians have born the brunt of the violence, from the scores of journalists, intellectuals, and cultural and political figures who were targeted for assassination in the cities, to the thousands of ordinary villagers who were victims of indiscriminate massacres both in remote areas and at the outskirts of Algiers. In addition, many women were kidnapped and raped by members of armed groups. Authorship of these attacks was rarely established; the various armed groups almost never claimed responsibility for specific operations; and authorities rarely conducted investigations worthy of the name or brought the suspected perpetrators to justice.

In the name of combating the insurgency, security forces arrested and tortured thousands of suspects. They engaged in summary executions, often rounding up victims arbitrarily in reprisal for attacks on their own troops. And between 1993 and 1997, they picked up and made “disappear” an estimated 7,000 Algerians who remain unaccounted for until this day.

Over the last five years, there has been a significant decline in political violence. But Algeria still confronts a legacy of repression that weighs heavily on the country and clouds the prospects for lasting reform and genuine democratization.

I should note that our assessment of conditions on the ground is limited somewhat by the inability of Human Rights Watch and other international human rights organizations to gain regular access to Algeria. In contrast to Tunisia and Morocco, Algeria requires entry visas for citizens of the U.S. and most European countries, and grants them sparingly when the applicant seeks to visit on behalf of a rights group. On February 22, authorities at Algiers airport prevented entry by a delegation representing three organizations, the International Federation of Human Rights, the Euro-Mediterranean Human Rights Network, and the Cairo Institute of Human Rights Studies. The U.N. Working Group on Enforced and Involuntary Disappearances has been waiting nearly five years for approval of its request for a visit. The U.N. Special Rapporteur on Torture and the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions are also waiting for authorization to conduct visits. Human Rights Watch, I am pleased to note, has just learned of the approval of its request for a research mission, after a wait of more than two years, and we look forward to conducting a visit in coming weeks.

Torture, Freedom of Association, Press Freedom

The human rights picture has improved overall since those worst years of violence. There are fewer security-related arrests and with it fewer reports of torture, although those who are arrested continue to be at risk of torture or ill-treatment. People are no longer being subject to “disappearances.” The security forces have killed unarmed persons in disputed circumstances, but reports of summary executions are no longer commonplace. However, this progress will remain fragile and reversible, in our view, until the Algerian judiciary can guarantee trials that are fair and impartial, and a culture in which perpetrators of massive abuses get away with their crimes is ended.

In October 2004, Algeria’s parliament took the positive step of amending the penal code to criminalize acts of torture. We remain concerned that the amendment fell short of international standards by failing to criminalize cruel, inhuman and degrading treatment or punishment, and by failing to refer to the consent or acquiescence to torture or cruel, inhuman or degrading treatment or punishment by a public official or other person acting in an official capacity.

In January Algerian authorities stated, “With the policy of civil concord which had accelerated the normalization of the security situation, terrorism – on the decline – today no longer constituted a serious threat to the country’s institutions and people.” Despite this claim, the government has refused so far to cancel the state of emergency that is now in its fourteen year. That law abridges certain rights, by making it easier for authorities to ban public meetings and rallies when the agenda displeases them, and by empowering the ministry of interior to intern people without charge, a provision that it used heavily at the beginning against suspected Islamists, but not in recent years. The U.S., in its advocacy of the rule of law, should urge the lifting of this law of exception.

Despite the state of emergency, public gatherings and rallies by civil society groups and political parties are tolerated in many instances, though not always. Human rights organizations are allowed to operate, with certain impediments, including a restrictive law on associations. The government has made an effort to address grievances of the Kabyle, or Berber, population, following disturbances in 2001 in which over 100 persons were killed, most of them by police gunfire.

While the radio and particularly television remain under tight state control, the independent print media are outspoken and often quite critical of the government. Their situation remains precarious, however. The press law and penal code provide prison sentences for the offense of libel, and the placement of public-sector advertising provides a means to reward – or squeeze – newspapers. The situation for the press has actually deteriorated since President Bouteflika’s reelection last April. In June, one of the president’s harshest critics, Le Matin daily managing editor Mohamed Benchicou, began serving a two-year prison term after a politically motivated prosecution on currency law violations. Hafnaoui Ghoul, a journalist for el-Youm daily and a member of the Algerian League for the Defense of Human Rights (LADDH), spent half of 2004 in prison on defamation charges related to articles alleging corruption and mismanagement by local officials in his native region of Djelfa. These cases are a disturbing development in a country where journalists are often questioned and brought to trial but rarely put behind bars.

The United States government, and notably Ambassador Richard Erdman, have made the cause of press freedom one of their human rights priorities in Algeria. In light of the recent pressures on journalists, more can be done. The U.S. should be making clear, for example, that a press law which provides prison sentences for libel is incompatible with international standards of free expression.

Amnesty and Accountability

With the decline in political violence, President Abdelaziz Bouteflika has pursued a “national reconciliation” agenda. In 1999 he won adoption of a “Civil Harmony” law that offered immunity from prosecution for militants who surrendered and who had not themselves committed killings or bombings or other serious crimes. The law also significantly reduced sentences for surrendering militants who acknowledged responsibility "for causing death or permanent injury of a person or for rape, or for using explosives in public places or in places frequented by the public." Government-controlled committees were supposed to examine each case and decide whether the amnesty-seeker should be eligible for exemption from prosecution or a reduced sentence. In practice, these committees operated with no transparency and largely exonerated the applicants without checking their records. In January 2000 President Bouteflika announced what was in effect a blanket amnesty to all members of two armed groups that had been observing a cease-fire, regardless of the crimes they may have committed.

As the next phase of “national reconciliation,” President Bouteflika on November 1, 2004 evoked the prospect of a general amnesty, and pledged to submit it to public approval. Since then the government has been preparing public opinion for an amnesty law that reportedly will be presented to parliament this spring. Although the details have not been disclosed, there is every expectation that it will broaden the clemency for armed militants and, for the first time, also cover crimes committed by security force members.

Human Rights Watch supports the efforts of Algerians to heal the wounds of a decade of horrific violence, and believes that acts of clemency can serve this cause. However, President Bouteflika’s “national reconciliation” initiatives, unlike post-conflict mechanisms in other countries, have thus far included no mechanisms for uncovering the truth of what happened and insuring justice for the worst crimes against human rights. This dangerous and potentially destabilizing trend would be furthered by a general amnesty law, unless it provided for credible investigations into past atrocities and excluded the worst offenders from its terms.

The handling of the issue of “disappearances” is a case in point. Largely due to the steadfastness of the families of the “disappeared,” many of whom cling to the hope that their loved ones are still alive, this issue finally began receiving international and national press attention in 1997. The Algerian public and press became sensitized to their plight as it become clear that the victims included large numbers of persons who were unconnected to the violence and that, in any event, none of the “disappeared” had been afforded their day in court before vanishing.

Over the years, hundreds of families of the “disappeared” filed complaints in court alleging the illegal arrest of their relatives. Many of them provided the names of eyewitnesses willing to testify. But in a reflection of the sorry state of the Algerian justice system, not a single case resulted in identifying the whereabouts of a “disappeared” person or in the filing of charges against a police agent responsible for a “disappearance.”

Government officials have acknowledged the problem of “disappearances” and established a succession of agencies to receive the families and investigate the fate of their missing relatives. None of these has delivered the slightest bit of verifiable information to the families. The latest official agency formed to address the problem, the Ad Hoc Mechanism on “Disappearances,” has perpetuated this injustice. Meanwhile, the head of the mechanism, Moustapha Farouk Ksentini, has insisted repeatedly that these thousands of abductions were the acts of individual state agents rather than of state institutions. This conclusion is convenient for the state but is put forward without any investigation having been conducted to establish the facts. We hope that the mechanism will address the issue in a more serious manner when submitting its final recommendations at the end of this month to President Bouteflika.

Relatives of the “disappeared” have differing views on whether to accept the financial compensation that will likely be offered to them by the government, and on the extent to which perpetrators of “disappearances” should be held criminally accountable for their deeds. But they share an indignation at the government’s failure to provide them with specific information on the fate of their loved ones, a failure that, they fear, will be ratified by the government’s efforts to “turn the page” in 2005 through a general amnesty and other measures.

The families of the “disappeared” are not the only Algerians whose sense of injustice presents a potentially destabilizing factor for the future. Many Algerians, and particularly those whose were victimized by armed groups, resented seeing militants absolved for their violent crimes and reintegrated into their communities while their victims themselves received little or no assistance from the state. And the popular perception that the security forces enjoy impunity, which has fueled sporadic disturbances around the country, will likely be reinforced by an amnesty proposal that shields their members from prosecution for even the gravest abuses committed during the years of strife.

The bottom line is that amnesty will not bring amnesia. The scars and resentments brought about by past violence will remain just under the surface for years to come. Lasting stability in Algeria, as in all post conflict societies depends in part on truth telling and accountability.

Women’s Rights

Another important challenge for Algeria is the protection of women’s rights. In this respect, Algeria remains a paradox. In presenting their case for halting the elections of 1992, Algerian authorities often invoked the specter of a severe setback in the status of women should an Islamist party come to power. However plausible their argument, authorities did nothing to reform the 1984 family code, which is based on misogynistic interpretations of shari’a law. The code treats women as legal minors, and sanctions discrimination against them in marriage, divorce, inheritance, and child custody. Women’s rights defenders in Algeria have long campaigned for the abrogation or radical revision of the code.

The code allows a man to unilaterally dissolve his marriage without cause. A woman, unless her husband agrees, can obtain a divorce only by petitioning a court on the basis of certain types of harm or prejudice specified in the law. In the process she is likely to face a series of legal and procedural obstacles.

The code provides the husband with legal guardianship over minor children, even after the wife is awarded custody of them in a divorce proceeding. This means, for example, that the father’s signature is necessary for the child to obtain a passport or to enroll in a school.

In the event of divorce, the couple’s home – if they possess only one – becomes the property of the husband. The law stipulates that the husband is to provide housing for his ex-wife if she obtains custody of the children and if he has the means to do so. But in practice, women who are divorced by their husband often end up homeless, even if they have children under their care.

To his credit, President Bouteflika, upon his reelection last April, vowed publicly to reform the code, saying he rejected that women "should be subjected to a status that assails their rights and condemns them to a condition inferior to men's."

On February 22, Algeria’s council of ministers approved proposed reforms that would diminish and in some cases eliminate the discriminatory provisions of the family code. Parliament is expected to approve these much-needed changes. Women’s rights activists in Algeria have criticized the amendments for not going far enough. They are particularly disappointed that the revisions stipulate the presence, at the time the marriage is contracted, of a guardian for the bride, even if she is legally an adult. This provision, in the view of many activists, perpetuates the status of the wife as an unequal partner in marriage. They will continue their struggle for complete equality in law and in its application. We urge the United States to uphold the same benchmark in evaluating this reform, and to encourage state efforts to educate both judges and the general public to ensure that Algerian women can benefit in practice from these new legal protections.

We are also pleased to note that 2004 amendments to the penal code make sexual harassment an offense punishable by law. And last month, the Council of Ministers approved a reform of the nationality code that would make it possible for Algerian women married to foreign men to transmit their nationality to their children for the first time. We hope this reform will soon be adopted into law.

Conclusion

Despite the horrific political strife of the 1990s, Algeria has preserved a margin of freedom for the press, for independent civil society activism, and for political opposition. As the violence diminished, reports of grave human rights abuses declined as well.

But before it can move forward, Algeria needs to address the legacy of its violent past. During the 1990s, practically no effort was made to investigate the assassinations, massacres, “disappearances” and acts of torture that were committed. That effort must begin now.

The experience of societies recovering from conflict around the world shows that a durable democracy does not grow from sweeping the past under the carpet. A healthy transition includes a process of investigating and establishing a public record of the abuses that occurred, and imposing accountability for past abuses in a form that is persuasive in the eyes of the public. These are the ways that a society can learn from and break with past practices. And while it is true that reopening the past can stir up passions and recriminations, the risks of denying or ignoring the past are even greater.

Successive American administrations have shown interest in the cause of the families of Algeria’s “disappeared.” At a time when Algerian authorities are floating the idea of a general amnesty, the United States should publicly declare that any “national reconciliation” worthy of the name must include a process of establishing truth and justice with respect to “disappearances” and other grave violations of the past. This would be completely consistent with U.S. policy in other societies that have been ravaged by civil conflict, from Colombia to the Balkans to Iraq.

Of course, Algerians themselves should play the lead role in determining how best to reckon with these violations. But the U.S. can urge that the manner by which the Algerian people makes these choices is genuinely open, well-informed, consultative, and deliberative, as it was for the citizens of the Republic of South Africa when they adopted their own model for dealing with the crimes of the apartheid years.

This moment in Algeria’s history recalls in some ways the juncture the country faced some fifteen years ago. A wave of political reform had followed widespread riots that erupted in October 1988, riots that the security forces violently suppressed by killing some 500 protesters and torturing hundreds more. After the riots, the sweeping reforms and a drop in reports of torture prompted not a few observers to proclaim that Algeria, a one-party state since independence, was now on its way to becoming a pluralistic democracy. Despite the progress on some fronts, no one was held accountable for the extrajudicial killings and widespread torture perpetrated by those who suppressed the 1988 disturbances, and in July 1990, parliament adopted a blanket amnesty law protecting them from prosecution. Tragically, three years later, the security forces, when seeking to crush the Islamic Salvation Front and confronting the spread of armed attacks, wasted little time in deploying extra-legal and indiscriminate means of repression harsher than anything the country had seen in its young history.

When a violent conflict subsides, there is a natural urge to forget the past. But today, as in 1990, an amnesty that ratifies impunity for grave abuses that have not even been investigated heightens the risk that the horrors of the past will someday be repeated rather than laid to rest.