Human Rights Watch welcomes the September 20 speech of President Bouteflika, in which he urges the state to assume its responsibility for the “disappearances” that occurred during the civil strife of the 1990s. We also welcome his decision to create a mechanism to determine the fate of “disappeared” individuals and inform families of its findings; to draft proposals for compensating the victims’ families; and to provide them with social assistance. Full acknowledgment, disclosure to the families, and offers of compensation and social assistance that conform to internationally accepted principles and guidelines, are all important parts of addressing the suffering and abuse that have been inflicted on victims of “disappearance” and their families.
But the new mechanism, with its largely passive powers and narrow mandate to seek answers about what happened to the “disappeared,” cannot substitute for a full and transparent investigation into the circumstances of the thousands of cases of “disappearances”; efforts to bring perpetrators of these crimes against humanity to justice; and concrete reforms of laws and practices that will safeguard against future “disappearances.” Only by acting decisively on these fronts can Algeria comply with its obligations under international law, do justice to the victims, and reckon fully with its legacy of “disappearances”.
Human Rights Watch’s February 2003 report on “disappearances” in Algeria contained a series of recommendations addressed to the government of Algeria, among other parties. We believe these recommendations remain relevant and reproduce below those addressed to the government.
We also believe that Algeria’s newly established commission on the “disappeared,” as a state-appointed body, should strive to implement those of our recommendations that lie within the scope of its mission. It should also, under its mandate to propose measures “deemed useful for resolving the issue,” urge the government to implement fully the recommendations listed below.
We also urge third parties, notably the European Union and its member nations and the United States and Canada, to encourage, while critically monitoring, efforts by the Algerian government to address the “disappeared” issue. They should insist that the measures taken:
conform to international standards for conducting a thorough investigation, including those criteria outlined below;
lead to the immediate release of “disappeared” persons who are still alive and in custody;
ensure all the rights belonging to relatives of the “disappeared,” including the right to learn the truth and to receive compensation;
contribute to imposing criminal accountability for those involved in carrying out “disappearances”; and
contribute to establishing legal safeguards to prevent future “disappearances.”
Algerian authorities should:
- Acknowledge at the highest level that state agents are responsible for large numbers of the “disappearances” that have occurred since 1992;
- Introduce legislation making “disappearance” a criminal offense that is punishable by sanctions commensurate with the gravity of the crime; the statute should apply explicitly to all state agents as well as those acting on their behalf;
- Commit to providing families information on the fate of the “disappeared” and on the parties responsible for “disappearances,” except in those cases where families elect to forego this information;
- Declare that investigations into “disappearances” should continue for as long as the fate of the victim remains unclarified. Toward this end, ensure that any mechanism established to investigate “disappearances” meets criteria for effectiveness outlined by Amnesty International,41 among others, including:
the independence, authority and integrity to obtain information from state agencies, including the security forces, about the “disappeared” – their whereabouts, their status, and who bears responsibility for their plight;
working methods that are clearly and publicly defined;
structural and operational independence from any government institution;
the financial resources and staff with the necessary expertise and integrity to examine impartially, effectively and speedily, information relating to “disappearances” across the country;
investigative powers to search unannounced and unaccompanied military, police and intelligence facilities and archives; and
full and effective powers to compel the attendance of those implicated in carrying out, ordering or acquiescing in “disappearances,” and to compel the disclosure and production of documents, including medical-legal records and existing court files, and other items of evidence.
In addition, the country's highest authorities should order all state agencies to cooperate with the commission, and declare that officials who obstruct or fail to cooperate with the commission will face penalties.
Algerian authorities should also:
- Provide compensation to victims of state-sponsored “disappearances” or their beneficiaries who elect to receive it, and ensure they have access to counseling and social assistance programs;
- Declare that the widespread and systematic “disappearances” perpetrated in Algeria over the past decade constitute crimes against humanity whose perpetrators must be brought to justice. They should benefit neither from amnesty laws nor from statutes of limitation. Similarly, members of armed groups who have abducted persons who remain missing or who were killed or grievously harmed by their abductors should not be eligible under any amnesty and their crimes should not be subject to statutes of limitation;
- Issue a standing invitation to visit Algeria to all mechanisms of the U.N. Commission on Human Rights (CHR); as a member of the CHR, Algeria should join the forty-eight U.N. member nations that have already done so;
- Approve, in particular, long-standing requests to visit by the U.N. Working Group on Enforced or Involuntary Disappearances, the Special Rapporteur on Torture and the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. Algeria should ensure that these thematic mechanisms have full access to regular and ad-hoc detention facilities, sites of mass or makeshift graves, and official documents relevant to their mandates;
- Grant legal status to all Algerian nongovernmental organizations such as Somoud, SOS Disparus, the Association of the Families of the Disappeared of Constantine (Association des familles de disparus de la wilaya de Constantine), and the National Association of Families of the Disappeared (Association nationale des familles de disparus), that work on “disappearances” and abductions and that apply for legal recognition; and
- Respect the right of freedom of assembly by ending the frequent practice of forcibly dispersing peaceful and non-disruptive public rallies staged by relatives of the “disappeared.”
With respect both to state-sponsored “disappearances” and persons abducted by armed groups, Algerian authorities should:
- Instruct Algeria's courts to fulfill their responsibility as guarantors of impartial justice; investigating judges and prosecutors should fully investigate “disappearance” cases by, among other things, identifying and questioning witnesses — including, where warranted, members of the security forces — capable of shedding light on the perpetrators of “disappearances” or abductions by armed groups. Plaintiffs who submitted “disappearance” complaints to investigating judges or prosecutors only to have their petitions unfairly dismissed should be encouraged to re-submit them for a proper hearing;
- Establish procedures, in consultation with victims' families, on keeping them informed of progress in investigations into “disappearances” and abductions, as well as about the discovery of mass graves and any work carried out to identify or remove the bodies found;
- Ensure that any information derived from the interrogation of captured or surrendering militants that pertains to the identity and fate of abducted persons is made available upon request to all persons concerned, unless doing so would jeopardize an ongoing criminal investigation; ensure that families are informed of the prosecution of persons in connection with specific abductions, so that relatives can provide relevant testimony or attend or follow any resulting trial; and
- Take steps to ensure that all persons involved in the investigation of “disappearances,” including the complainant, counsel, witnesses and those conducting the investigation, are protected against ill-treatment, intimidation or reprisal.
Regarding mass graves, Algerian authorities should:
- Immediately put in place procedures to preserve evidence at all discovered and yet-to-be-discovered unmarked gravesites that are suspected of holding victims of political violence, and inform families of missing persons about the procedures in place for exhuming and identifying human remains; and,
- Seek the involvement of qualified domestic and international nongovernmental organizations and other institutions, if the state lacks resources or technical means to properly conduct exhumations. Qualified independent organizations or individuals should be invited to be present as observers during exhumations.
In order to prevent future “disappearances,” Algerian authorities should:
- Review all practices of detention that facilitate “disappearances” and implement the following steps when persons are arrested:
- Keep a detention record regarding every detainee, including information on the date, time, and location of detention, the name of the detainee, the reasons for the detention, and the name of the forces effecting the detention; such registers should be readily available to detainees’ family, counsel, and other legitimately interested persons;
- Hold all detainees only in officially recognized places of detention, and cease the practice of secret detention even if it takes place on the premises of an officially recognized detention facility;
- Inform detainees immediately of the grounds of arrest and any charges against them, and provide immediate and regular access to lawyers of their own choosing;
- Promptly convey to the family accurate information about a detainee's whereabouts and legal status, and provide them with prompt access to the detainee;
- Ensure that arresting officers always identify themselves to the person arrested and produce official identification showing their names, the agency they work for, and the branch of that agency where they are based;
- Ensure that detainees are taken into custody only on the basis of an arrest warrant issued by a judge (except where genuinely detained en flagrante delicto); and
- Introduce legislation to shorten the maximum duration of garde à vue (pre-arraignment) detention from the twelve-day maximum allowed under 1995 legislation. The proposed amendment should conform to the U.N. Human Rights Committee's determination that a suspect must be brought before a judge or other officer authorized to exercise judicial power within “a few days.”42
41 See Amnesty International, "Fourteen-Point Program for the Prevention of ‘Disappearances,’" online at http://web.amnesty.org/web/web.nsf/print/aboutai-recs-disappear-eng (retrieved November 17, 2003).
42 General Comment 8 interpreting Article 9 of the International Covenant on Civil and Political Rights, which requires that detainees be brought "promptly" before a judge. HRI\GEN\1\Rev.1 at 8 (1994). Online at http://www1.umn.edu/humanrts/gencomm/hrcom8.htm (retrieved November 17, 2003).